Judge: Mark E. Windham, Case: 22STLC04593, Date: 2022-10-12 Tentative Ruling

Case Number: 22STLC04593    Hearing Date: October 12, 2022    Dept: 26

DEMURRER

(CCP § 430.10, et seq.)

 

 

SERVICE OF MOTION: 

 

[X] Proof of Service Timely Filed (CRC 3.1300)      OK

[X] Correct Address (CCP 1013, 1013a)                   OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b))           OK

 

SUMMARY OF COMPLAINT: Action for breach of contract and breach of covenant of good faith and fair dealing.

 

REQUEST FOR RELIEF: Sustain demurrer to the Complaint for failure to allege facts sufficient to state a cause of action and uncertainty. The First Amended Complaint does not attach a copy of the parties’ contract, nor provide the precise terms that give rise to Defendant’s liability. Without sufficient allegations of the contract terms, the causes of action fail.

 

OPPOSITION: The First Amended Complaint does allege the terms of the contract with sufficient specificity to support the cause of action for breach of contract.

 

REPLY: None filed as of October 10, 2022.

 

 

TENTATIVE RULING:

 

Defendant Ark Security Systems, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

 

 

ANALYSIS:

 

On July 11, 2022, Plaintiff Ark Security Systems, Inc. (“Plaintiff”) filed the Complaint in this action against Defendants Palcrete, Inc. (“Defendant Palcrete”) and David Dawud (“Defendant Dawud”). The First Amended Complaint was filed on July 27, 2022.

 

Defendant Dawud filed the instant Demurrer to the First Amended Complaint on August 31, 2022. Plaintiff filed an opposition on September 6, 2022. Defendant Palcrete filed a joinder to the Demurrer on September 30, 2022.

 

Discussion

 

Allegations in the Complaint

 

The First Amended Complaint alleges causes of action against Defendants for: (1) breach of contract; and (2) breach of covenant of good faith and fair dealing.

 

Defendant Palcrete is alleged to be a licensed contractor; Defendant Dawud is alleged to be a licensed realtor for RE/MAX ONE. (FAC, ¶¶2-3.) Plaintiff alleges that on March 29, 2021, it offered to provide Defendants with security services for a construction site Defendants owned, operated and managed. (Id. at ¶9.) Defendants accepted the offer and the parties agreed the security services were to run from May 2021 to June 2022. (Id. at ¶¶10-11.) Plaintiff provided the services from April 2021 through June 6, 2022. (Id. at ¶12.) However, in breach of the contract, Defendants failed to pay for the services. (Ibid.) Despite Plaintiff’s requests for payment in June and July 2022, Defendants did not respond nor make payment. (Id. at ¶13.) Defendants owe Plaintiff approximately $11,000.00. (Id. at ¶14.)

 

Demurrer to Complaint

 

The Demurrer is supported by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Meet and Confer Decl., filed 08/31/22, ¶¶5-6 and Exh. 1.) Defendants demur on the grounds that the Complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., §430.10, subd. (e).) Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.)

 

The First Amended Complaint does not allege the substance of the relevant terms. It does not allege what “security services” were to be provided pursuant to the contract, nor what payment was to be made in exchange. Pleading the substance of a contract “requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation].” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993 [citing McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489].) The First Amended Complaint does not include analysis of the instrument or comprehensiveness in statement. Instead, it is comprised of legal conclusions. Therefore, the cause of action for breach of contract is not supported by sufficient allegations of its terms to support the first cause of action.

 

Likewise, a cause of action for breach of the covenant of good faith and fair dealing must be supported by the existence of a contractual relationship. (Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal. App. 4th 1001, 1015.) Without sufficient allegations of the parties’ contract, the cause of action for breach of the covenant of good faith and fair dealing also inadequately alleged.

 

Conclusion

 

Defendant Ark Security Systems, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

 

 

Moving party to give notice.