Judge: Mark E. Windham, Case: 23STLC08086, Date: 2024-04-23 Tentative Ruling
Case Number: 23STLC08086 Hearing Date: April 23, 2024 Dept: 26
Soto
v. Nazarian, et al.
DEMURRER
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendants Janet Nazarian and AB
Inspections’ Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO
AMEND FOR FAILURE TO ALLEGE SUFFICIENT FACTS.
ANALYSIS:
On December 20, 2023, Plaintiff Gilberto Soto, an
individual (“Plaintiff”) filed the Complaint in this
action against Defendants Janet Nazarian and AB Inspections (“Defendants”). Defendants
filed the instant Demurrer to the Complaint on
February 29, 2024. Plaintiff
filed an opposition on March 18, 2024.
Discussion
The Demurrer is accompanied by a
meet and confer declaration as required by Code of Civil Procedure section
430.41. (Motion, Matthes Decl., ¶¶2-4.) The Demurrer is brought on the grounds
that Plaintiff lacks the legal capacity
to sue, there is a defect or misjoinder of parties, the Complaint fails to
state sufficient facts, the Complaint is barred by the statute of limitations,
and the action is barred by res judicata.
The Court reminds
Defendants that only general demurrers are permitted in the limited
jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) “A general
demurrer ‘searches the complaint’ or the particular count to which it is
directed, for any and every failure to state a material fact. In other words,
the absence of any allegation essential to the cause of action makes the
complaint vulnerable to a general demurrer. The ruling on a general demurrer is
thus a method of deciding the cause on the merits on assumed facts (those
alleged) without a trial.” (3 Witkin, Cal. Procedure (2d ed. 1971) § 802, p.
2415.) (Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 610–611.) As lack
of legal capacity to sue, and defect or misjoinder of parties, are special
demurrers, the Court will not consider those arguments. (See Spreckels v. Grace
Darling Hospital Ass’n (1915) 28 Cal.App. 646, 648; (Brousseau v.
Jarrett (1977) 73 Cal.App.3d 864, 870.)
Nor will the Court consider arguments that raise matters
outside the four corners of the Complaint or matters of which the Court has not
taken judicial notice. A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. (Code Civ. Proc.,
§ 430.30; Blank v. Kirwan (1985)
39 Cal.3d 311, 318.)
The Complaint alleges that in February 2021, Plaintiff and
Defendants were parties to an agreement whereby Plaintiff delivered concrete to
Defendants’ property. (Compl., ¶BC-1.) The checks Defendants allegedly provided
to Plaintiff for payment were NSF, thereby breaching the contract. (Id.
at ¶¶BC-1 and BC-2.) Plaintiff was damaged from the non-payment. (Id. at
¶BC-4.) The attached documents, however, do not show an agreement between
Plaintiff and Defendants. The attachments show a contract between Soto Ready
Mix, Inc. and Juliet’s Hair Design, and a contract between Soto Ready Mix, Inc.
and AB Inspections. (Compl., Exh. A.) When attachments to a pleading conflict
with the allegations therein, the attachments take precedence. (George v.
eBay, Inc. (2021) 71 Cal.App.5th 620, 628.) The Complaint, therefore, fails
to allege the existence of any agreement, oral or written, between Plaintiff
and Defendants. The demurrer for failure to allege sufficient facts is
sustained.
The demurrer based on res judicata, however, is overruled.
Defendants point the Court to proceedings in an earlier small claims action
between Plaintiff and Defendant Nazarian, which was dismissed without
prejudice. (LASC Case No. 23CHSC00401.) As neither Plaintiff nor Defendant
Nazarian are parties to the contract at issue in this action, nor shown to be
in privity with the parties at the contract at issue in this action, the small
claims case has no bearing here.
The Court will allow leave to amend based on the possibility
that the parties to the contract can be corrected. Leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 348.)
Conclusion
Defendants Janet Nazarian and AB Inspections’ Demurrer to
the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND FOR FAILURE TO ALLEGE
SUFFICIENT FACTS.
Moving party to give notice.