Judge: Mark E. Windham, Case: 22STLC05539, Date: 2023-04-17 Tentative Ruling

Case Number: 22STLC05539    Hearing Date: April 17, 2023    Dept: 26

PROCEEDINGS:     DEMURRER TO COMPLAINT

MOVING PARTY:  Defendant Delux Corporation

RESP. PARTY:         None

DEMURRER

(CCP §§ 430.31, et seq.)

SERVICE:

[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 implied covenant of good faith and fair dealing.

REQUEST FOR RELIEF: Sustain demurrer to Complaint for failure to allege sufficient facts to state a cause of action against Defendant Deluxe Corporation.

OPPOSITION: None filed as of April 12, 2023.

REPLY: None filed as of April 12, 2023.

TENTATIVE RULING:

Defendant Deluxe Corporation’s Demurrer to the Complaint is OVERRULED. DEFENDANT DELUXE CORPORATION IS TO FILE AND SERVE ITS ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Cosmo Taormina (“Plaintiff”) filed the instant action against Defendant KNAC (“Defendant KNAC”) on August 22, 2022. Plaintiff added Defendant Deluxe Corporation (“Defendant Deluxe”) to the action via doe amendment on December 15, 2022. Defendant Deluxe filed the instant Demurrer to the Complaint on March 6, 2023. No opposition has been filed to date.

Discussion

The Complaint alleges causes of action for (1) breach of contract; and (2) breach of the implied covenant of good faith and fair dealing, based on the following facts. Plaintiff and Defendant KNAC entered into a written agreement for email services. (Compl., ¶7.) Defendant KNAC agreed to provide the email services for 12 months in exchange for 12 months of payments from Plaintiff. (Id. at ¶8.) After only eight months, however, the email services were cancelled and cannot be reinstated. (Id. at ¶¶9-11.) Specifically, Defendant “breached the contract by: a) discontinuing service without notice; b) failing to provide a forwarding email address; c) failing to allow Plaintiff the opportunity to retrieve any emails stored on Defendant KNAC’s server; and, d) failing to forward the email address so that it will point to the new domain purchaser.” (Id. at ¶13.) Plaintiff performed all obligations required under the agreement and due to Defendant KNAC’s breach, has been damaged in the amount of $5,000.00. (Id. at ¶¶12-14.) Finally, it is alleged that the Doe defendants were also legally responsible for the events and occurrences in the Complaint, and that each Defendant was the agent of each co-Defendant. (Id. at ¶¶4-5.)

The Demurrer is supported by a meet and confer declaration, as required by Code of Civil Procedure section 430.41. (Demurrer, Leano Decl., ¶3.) Defendant Deluxe demurs to both causes of action in the Complaint for failure to allege facts sufficient to state a cause of action and uncertainty. (Citing Code Civ. Proc., § 430.10, subds. (e), (f).) Specifically, the Demurrer argues that Plaintiff has not alleged that Defendant Deluxe is a party to the contract, the terms of the parties’ contract, nor sufficient facts to show Plaintiff’s own performance or excuse from performance. It goes on to argue that the second cause of action is derived from the breach of contract claim. The Court notes that special demurrers, such as for uncertainty, 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.

A written contract may be alleged by attaching a copy to the complaint, setting forth its terms verbatim, or by its legal effect. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) No copy of the contract is attached to the Complaint, nor are the contract’s terms alleged verbatim. To allege a contract by its legal effect, Plaintiff must “allege the substance of its relevant terms” by “comprehensiveness in statement, and avoidance of legal conclusions.” (Ibid.)

Here, the Complaint sufficiently alleges that Defendants agreed to provide Plaintiff email services in exchange for payment. Email services is such a universal concept that Defendant Deluxe cannot this is sufficient to allege what Defendants were required to provide under the contract, at least at the pleading stage. The Complaint goes on to allege that Defendants breached the contract by specific conduct, which further supports the allegations regarding Defendants’ obligations. Nor is it necessary for Plaintiff to allege at this time exactly how much they paid for the email services; the ultimate fact of Plaintiff’s payment has been alleged. The Court notes that Plaintiff has alleged they cannot provide the actual written contract because it is in an electronic format that requires access to the email services. (Id. at ¶7.) The Demurrer does not address this allegation, nor the agency allegations that connect Defendant Deluxe to Defendant KNAC’s conduct. Based on the foregoing, the Demurrer to the first cause of action for breach of contract is overruled.

2nd Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

Defendant Deluxe’s demurrer to the second cause of action relies on the same arguments regarding the breach of contract cause of action. As before, Defendant Deluxe does not address the allegations regarding agency and co-defendants. The allegations specific to this cause of action are that “Defendants breached the implied covenant of good faith and fair dealing by failing to allow any retreival (sic) of emails on the server, and refusing to direct the domain to ‘point to’ the new purchaser of the hosting service so that email will continue to be received, without good cause or any reasonable basis.” (Compl., ¶18.) Although the Complaint switches between referring to “Defendant” and “Defendants,” it is a stretch for Defendant Deluxe to call these allegations internally inconsistent. The agency and co-defendant allegations support use of the plural without much controversy. Therefore, the demurrer to the second cause of action is overruled.

Conclusion

Defendant Deluxe Corporation’s Demurrer to the Complaint is OVERRULED. DEFENDANT DELUXE CORPORATION IS TO FILE AND SERVE ITS ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Court clerk to give notice.