Judge: Mark E. Windham, Case: 24STLC00451, Date: 2024-09-10 Tentative Ruling

Case Number: 24STLC00451    Hearing Date: September 10, 2024    Dept: 26

Yu v. JSK Construction, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants JSK Build, Inc., John Hur, Mark Kim, and Austin Jang’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

ANALYSIS:

On January 23, 2024, Plaintiff Alicia Yu (“Plaintiff”) filed the instant action against Defendants JSK Construction (“Defendant JSK Construction”), JSK Build, Inc. (“Defendant JSK Build”), John Hur (“Defendant Hur”), Mark Kim (“Defendant Kim”), and Austin Jang (“Defendant Jang”). The Complaint alleges a single cause of action for breach of contract.

Defendants JSK Build, Hur, Kim, and Jang (“Moving Defendants”) filed the instant Demurrer to the Complaint on July 10, 2024. Plaintiff filed an opposition on August 27, 2024 and Cross-Defendant replied on September 3, 2024.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Kromke Decl., ¶¶3-4 and Exh. A.) Moving Defendants demur on the grounds that the Complaint fails to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).)

The Complaint alleges the following facts: Plaintiff entered into a contract with Defendant JSK Construction on December 15, 2023. (Compl., ¶BC-1 and Exh. A.) On December 21, 2023, Defendant informed Plaintiff he will not fulfill the agreement and refused to refund the money paid. (Id. at ¶BC-2.) Defendant is wrongfully withholding Plaintiff’s $20,000.00 deposit and refusing to refund the money. (Id. at ¶BC-4.)

Cause of Action for Breach of Contract

A cause of action for breach of contract must allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) Moving Defendants demur on the grounds that they are not parties to, nor in privity with any party to, the contract. In support, they point to the copy of the contract attached to the Complaint, which names the parties as Plaintiff and Defendant JSK Construction. (Compl., Exh. A.)

The opposition does not address the fact that Moving Defendants are not named in the parties’ agreement, Instead, Plaintiff provides a bevy of facts that are not included in the allegations of the Complaint, such as Moving Defendants’ purported relationship to Defendant JSK Construction. It is black letter law that none of these facts can be considered by the Court in ruling on the Demurrer. 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.) Therefore, the Demurrer to the cause of action for breach of contract is sustained.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) Plaintiff argues in opposition that leave to amend should be permitted to allege alter ego liability against Moving Defendants because they promised to be individually responsible if any issues should arise with the contract. Plaintiff does not explain how this meets the standard for alter ego liability, which the opposition concedes is “sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (Opp. P. 5:21-23 [citing Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749].) Plaintiff, therefore, has not shown a basis for leave to amend with respect to Moving Defendants.

Conclusion

Defendants JSK Build, Inc., John Hur, Mark Kim, and Austin Jang’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.