Judge: Mark E. Windham, Case: 20STLC05081, Date: 2022-08-01 Tentative Ruling
Case Number: 20STLC05081 Hearing Date: August 1, 2022 Dept: 26
DEMURRER
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendant Gwen Austin’s Demurrer to the First Amended Complaint
is OVERRULED AS TO THE FIRST THROUGH SEVENTH CAUESS OF ACTION AND SUSTAINED
WITHOUT LEAVE TO AMEND AS TO THE EIGHTH CAUSE OF ACTION.
DEFENDANT GWEN AUSTIN IS TO FILE AND SERVE AN ANSWER TO THE
FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.
On June 17, 2020, Plaintiff Mashawn Green (“Plaintiff”) filed the Complaint in this action against Defendant
Gwen Austin (erroneously sued as Quen Austin) (“Defendant”). Proof of personal
service of the Complaint was not filed until January 19, 2022.
On April 6, 2022, the Court
sustained Defendant’s Demurrer to the Complaint with 30 days’ leave to amend.
(Minute Order, 04/06/22.) Plaintiff filed the First Amended Complaint on April
20, 2022. Defendant filed the instant Demurrer to the First Amended Complaint
on May 25, 2022. No opposition has been filed to date.
Discussion
Defendant demurs to the First
Amended Complaint for failure to allege
sufficient facts to state a cause of action and uncertainty. (Code Civ.
Proc., § 430.10, subds. (e), (f).) The Demurrer is accompanied by a meet and confer
declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Carini
Decl., ¶¶4-6.) The Court notes that special demurrers are not permitted in the
limited jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) Therefore, the
Court will not rule on the demurrer for uncertainty.
The First Amended Complaint lists
causes of action for (1) breach of written contract; (2) breach of oral
contract; (3) breach of fiduciary duty; (4) negligent misrepresentation; (5)
negligence; (6) breach of the covenant of good faith and fair dealing; (7)
constructive fraud; and (8) unjust enrichment. (FAC, pp. 11-12.) In support of
these causes of action, Plaintiff includes nine pages of allegations. (Id.
at pp. 3-11.)
To the extent the Demurrer is brought on the grounds that
the First Amended Complaint does not allege sufficient facts to state a cause
of action against Defendant, it only includes authority regarding the elements
necessary to allege each cause of action. (Demurrer, pp. 8:15-10:2.) The Demurrer
provides no analysis regarding whether the factual allegations in the First
Amended Complaint support these elements. It merely sets forth the conclusion
that Plaintiff has not alleged any facts in support of the causes of action. (Id.
at p. 10:3-6.) The only cause of action for which the legal authority cited is
sufficient to sustain the Demurrer without analysis of the facts alleged in the
First Amended Complaint, is unjust enrichment. As Defendant points out, unjust
enrichment is not a cause of action. (McBride v. Boughton (2004) 123 Cal.App.4th
379, 387.)
Based on the foregoing, the Demurrer to the First Amended
Complaint is overruled as to the first through seventh causes of action and
sustained without leave to amend as to the eighth cause of action.
Conclusion
Defendant Gwen Austin’s Demurrer to the First Amended
Complaint is OVERRULED AS TO THE FIRST THROUGH SEVENTH CAUESS OF ACTION AND SUSTAINED
WITHOUT LEAVE TO AMEND AS TO THE EIGHTH CAUSE OF ACTION.
DEFENDANT GWEN AUSTIN IS TO FILE AND SERVE AN ANSWER TO THE
FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.
Court clerk to give notice.