Judge: Mark E. Windham, Case: 24STLC03177, Date: 2024-11-05 Tentative Ruling

Case Number: 24STLC03177    Hearing Date: November 5, 2024    Dept: 26

Gonzalez v. Salcedo, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Alejandro Ibarra’s Demurrer to the Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION. DEFENDANT ALEJANDRO IBARRA IS TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On May 2, 2024, Plaintiff Antonio Gonzalez (“Plaintiff”) filed the Complaint in this action against Defendants Ruben Salcedo (“Defendant Salcedo”), Alejandro Ibarra (“Defendant Ibarra”), and Country Burger, Inc. (“Defendant Country Burger”). On October 8, 2024, Defendant Ibarra filed the instant Demurrer to the Complaint. No opposition has been filed to date. 

Discussion

Allegations in the Complaint

On March 24, 2023, Plaintiff lent Defendants $33,000.00 pursuant to a written promissory note. (Compl., ¶3 and Exh. A.) Defendants agreed to repay the loan in monthly installments of $5,500.00 until it was fully repaid. (Ibid.) At the time they obtained the loan, Defendants knew Defendant Country Burger was so financially unstable and behind on its bills that it was unable to maintain ongoing operations. (Id. at ¶4.) Despite this, Defendants misrepresented Defendant Country Burger’s financial health to Plaintiff to induce him to provide the loan under false pretenses. (Id. at ¶5.) Defendants have failed to make the monthly payments agreed upon, in breach of the promissory note, causing Plaintiff damages of $33,000.00. (Id. at ¶¶6, 8-9.) Defendants intentionally misrepresented Defendant Country Burger’s financial status to induce Plaintiff to lend them money. (Id. at ¶11.) Plaintiff relied on these misrepresentations to his detriment and as a result, has been damaged in the amount of $33,000.00. (Id. at ¶12.)

Demurrer to the Complaint

The Complaint alleges causes of action for (1) Breach of Contract; and (2) Fraud. The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Quadros Decl., ¶¶3-5 and Exh. 2.) Defendant Ibarra demurs on the grounds that the Complaint fails to allege facts sufficient to state a cause of action and for uncertainty. (Citing Code Civ. Proc., § 430.10, subds. (e), (f).) Special demurrers, however, are not permitted in the limited jurisdiction court. (Code Civ. Proc., § 92, subd, (c).) Therefore, the Court will not consider the demurrer for uncertainty.  

The demurrer is first brought as to the breach of contract cause of action on the grounds that Defendant Ibarra is not a party to, or signatory of, the promissory note upon which the entire action is based. A breach of contract claim must plead (1) the existence of a contract; (2) plaintiff’s performance of the contract or excuse for nonperformance; defendant's breach; and (4) resulting damage. (Harris v. Rudin, Richman & Appel (1997) 74 Cal.App.4th 299, 307). Defendant Ibarra contends there is no contract between themselves and Plaintiff. A review of the promissory note, however, shows that it names “Ruben Salcedo” and “Alejandro Ibarra Herrera” as the borrowers. (Compl., Exh. A.) Defendant Ibarra’s contention that they are not a party to the promissory note, therefore, is incorrect. The demurrer to the first cause of action is overruled.

Defendant Ibarra demurs to the second cause of for fraud for failure to meet the strict pleading requirements, and on the grounds that they are not a party to the promissory note. For the strict pleading requirements, the demurrer cites Cooper v. Leslie Salt Company (1969) 70 Cal.2d 627, which holds that “fraud is never presumed—facts constituting fraud must be specifically pleaded.” (Cooper v. Leslie Salt Company (1969) 70 Cal.2d 627, 636.) The Complaint does not allege fraud with specificity. It simply alleges that Defendants misrepresented Defendant Country Burger’s financial health to Plaintiff. Which Defendants made these misrepresentations, when the misrepresentations were made, and in what format and location, are all necessary details that missing from the pleading. The demurrer to the second cause of action, therefore, is sustained.

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.) As Plaintiff has not opposed the demurrer or otherwise shown that an amendment to the second cause of action is possible, leave to amend is denied.

Conclusion

Defendant Alejandro Ibarra’s Demurrer to the Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION. DEFENDANT ALEJANDRO IBARRA IS TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Court clerk to give notice.