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.