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.