Judge: Mark E. Windham, Case: 23STLC04893, Date: 2023-11-06 Tentative Ruling
Case Number: 23STLC04893 Hearing Date: January 25, 2024 Dept: 26
Romex Textiles, Inc. v. Promises, Promises, Inc., et
al.
DEMURRER;
MOTION TO STRIKE
(CCP §§ 430.31,
et seq., 435, et seq.)
TENTATIVE RULING:
Defendants
Promises, Promises, Inc. and Eugene Michael Hardy’s Demurrer to the First
Amended Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.
Defendants
Promises, Promises, Inc. and Eugene Michael Hardy’s Motion to Strike Portions
of the First Amended Complaint is DEEMED MOOT.
ANALYSIS:
Plaintiff Romex
Textiles, Inc. (“Plaintiff”) filed the instant action for breach of contract
and common counts against Defendants Promises, Promises, Inc. (“Defendant PPI”)
and Eugene Michael Hardy (“Defendant Hardy”) on August 3, 2023. The First
Amended Complaint was filed on October 23, 2023.
Defendants filed
the instant Demurrer to, and Motion to Strike Portions of, the First Amended
Complaint on December 27, 2023. On January 18, 2024, Plaintiff filed an
untimely opposition and an ex parte application to deem the opposition timely.
Defendants filed an objection to the untimely opposition, reply to the
opposition, and opposition to the ex parte application on January 18 and 19,
2024.
In light of
Defendants’ reply to the opposition, the Court finds their objection to the
opposition and opposition to the ex parte application moot. The Court will
consider the opposition as if timely filed.
Discussion
Demurrer to First Amended Complaint
The Demurrer is accompanied by a meet and confer declaration that
substantially complies with Code of Civil Procedure section 430.41. (Demurrer,
Hardy Decl., ¶2.) Defendants demur to the First Amended Complaint on general
and special grounds. Special demurrers are not permitted in a court of limited
jurisdiction, however, so the Court will not consider the special demurrer for
failure to exhaust remedies. (Code Civ. Proc., § 92, subd. (c); National
Assn. for Advancement of Colored People v. San Bernardino City Unified Sch.
Dist. (1976) 17 Cal.3d 311, 321 n. 13.) The Court also denies Defendants’
request for judicial notice of invoices referenced in the First Amended
Complaint. Defendants do not address Plaintiff’s contention that the documents
attached to the request for judicial notice are unauthenticated and lack
foundation, and differ materially from the invoices produced by Plaintiff.
Judicial notice of a document is only proper if it is a matter reasonably
beyond dispute. (Fremont Indemnity Co. v. Fremont General Corp. (2007)
148 Cal.App.4th 97, 113.)
First
Cause of Action for Breach of Contract
Defendants demur to the first cause of action
for failure to sufficiently allege the terms of the parties’ agreement. “To
state a cause of action for breach of contract, it is absolutely essential to
plead the terms of the contract either in haec verba or according to legal
effect.” (Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 252.) The
First Amended Complaint alleges that the parties entered into a series of written
contracts pursuant to which Defendant PPI agreed to purchase fabric goods from
Plaintiff. (FAC, ¶10.) The fabric goods and purchase price are set forth in
invoices that are detailed in the First Amended Complaint, with the other terms
detailed thereafter. (Id. at ¶¶10-11.) Invoices alone, however, are not
sufficient to constitute a contract and cannot bind a buyer. (C9 Ventures v.
SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1501.) Plaintiff’s reliance on
the invoices alone, therefore, is not sufficient to allege the existence of a
written contract between the parties. Contrary to the opposition, paragraph 10
does not provide other allegations beyond the invoices that demonstrate the
existence of a contract between the parties. The allegation is that the terms
of the written agreements were set forth in the voices. (FAC, ¶10.)
Therefore, the
demurrer to the first cause of action for breach of written contract is
sustained.
Second, Third, and Fourth Causes
of Action for Common Counts
Defendants demur to
the remaining causes of action for common counts on the grounds that they are
derivative of the breach of contract cause of action and must also fail. “When
a common count is used as an alternative way of seeking the same recovery
demanded in a specific cause of action, and is based on the same facts, the
common count is demurrable if the cause of action is demurrable.” (McBride
v. Boughton (2004) 123 Cal.App.4th 379, 394.) The common counts are based
on the same facts as the breach of contract claim, specifically, Defendants’
alleged failure to pay for the fabric goods delivered by Plaintiff. (FAC,
¶¶17-26.) Plaintiff’s reliance on Weitzenkorn v. Lesser (1953) 40 Cal.2d
778 is not availing. In that case, the California Supreme Court held that the
breach of contract allegations “will not defeat the common count unless it
clearly appears to be based upon the insufficient, rather than the sufficient,
specific allegations.” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778,
793.) Here, Plaintiff provides no “sufficient, specific allegations” to support
the common counts aside from incorporation of the breach of contract
allegations. (FAC, ¶¶17-26.)
Therefore, the
demurrer to the second, third, and fourth causes of action is also sustained.
Motion to Strike Portions of First Amended Complaint
Defendants move to strike the portion of the First Amended Complaint in
which Plaintiff asks for attorney’s fees and punitive damages. The Motion is
brought pursuant to Code of Civil Procedure section 436, on the grounds that
the Court may “strike out any irrelevant, false, or improper matter inserted in
any pleading.” (Code Civ. Proc., § 436, subd. (a).) As with the Demurrer,
Defendants have filed the required meet and confer declaration required by Code
of Civil Procedure section 435.5. (Motion, Hardy Decl., ¶2.) In light of the
ruling on the demurrer, however, the Motion to Strike is moot.
Leave to Amend
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment, however, the
burden is on the complainant to show the Court that a pleading can be amended
successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff requests
leave to amend should the demurrer be sustained; in light of the liberal rule
allowing amendment, the request is granted.
Conclusion
Defendants
Promises, Promises, Inc. and Eugene Michael Hardy’s Demurrer to the First
Amended Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.
Defendants Promises, Promises,
Inc. and Eugene Michael Hardy’s Motion to Strike Portions of the First Amended Complaint
is DEEMED MOOT.
Moving party to give notice.