Judge Mark E. Windham, Case Number: 23STLC05210, Date: 2023-12-21 Tentative Ruling

Judge: Mark E. Windham, Case: 23STLC05210, Date: 2023-12-21 Tentative Ruling

Case Number: 23STLC05210 Hearing Date: December 21, 2023 Dept: 26

Chacon v. Del Villar, et al.

DEMURRER

(CCP §§ 430.10, et seq.)

TENTATIVE RULING:

Defendants Marisol Del Villar and Del Villar Auto Sales’ Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. DEFENDANTS ARE TO FILE A PROPOSED JUDGMENT OF DISMISSAL WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On August 17, 2023, Plaintiff Elvia Lopez Chacon (“Plaintiff”) filed this action for breach of contract against Defendants Marisol Del Villar and Del Villar Auto Sales (“Defendants”). On October 25, 2023, Defendants filed the instant Demurrer to the Complaint. Defendants concurrently filed a Notice of Related Case with respect to Chacon v. Del Villar, LASC Case No. 22STCV38144, which is assigned to Department 15 in the Stanley Mosk Courthouse. No ruling on the Notice of Related Case has been issued. No opposition to the Demurrer has been filed to date and Defendants filed a notice of non-opposition on November 20, 2023. The Demurrer was initially set for hearing on November 29, 2023 and continued with notice to December 21, 2023.

Discussion

Plaintiff’s Complaint alleges that the parties entered into a written agreement, which is attached as an exhibit. (Compl., ¶BC-1.) The Complaint further alleges that Plaintiff performed all obligations thereunder but Defendant breached the agreement by refusing “to fulfill the contract.” (Id. at ¶¶BC-3 and BC-4.) Defendants demur to the Complaint for failure to allege sufficient facts. (Citing Code Civ. Proc., § 430.10, subd. (e).) The Demurrer is also accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Berman Decl., ¶6.) Finally, Defendants request that the Court take judicial notice of the pleading in LASC Case No. 22STCV38144. The Court declines to do so at this time. No ruling has been made on the Notice of Related Case by Department 15, therefore, the pleading in that action appears to have no relevance to the instant Demurrer.

The elements of a breach of contract cause of action are (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and

(4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Defendants demur on the grounds that no facts alleged regarding how Defendants breached the contract, Defendant Del Villar is not a party to the contract, and the contract attached to the Complaint is in Spanish.

First, Defendants correctly point out that the attached contract is in Spanish, in violation of 3.1110(f), such that the Court cannot determine its terms. (Compl., Exh. A.) Nor are the terms or their legal effect otherwise set forth in the Complaint. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) In fact, the attached copy is so blurred that it is mostly illegible. The only thing that can be determined from the attached agreement is that only Plaintiff and Defendant Del Villar Auto Sales are parties. (Compl., Exh A, p. 1.) It does not appear that Defendant Del Villar is a party to the contract. Finally, Defendants correctly argue that there are insufficient allegations of the element of breach. The Complaint only alleges that Defendants refused to fulfill their obligations under the contract. (Id. at ¶BC-4.) This does not demonstrate what obligations Defendants had, or which ones were breached. Therefore, the Complaint fails to allege the necessary elements of a cause of action for breach of contract.

Nor does there appear to be a basis to amend the Complaint. 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 has not filed any opposition to the Demurrer demonstrating a basis or desire to amend the Complaint. Leave to amend is denied.

Conclusion

Moving party to give notice.