Judge: Mark H. Epstein, Case: 22SMCV01060, Date: 2022-12-15 Tentative Ruling

Case Number: 22SMCV01060    Hearing Date: December 15, 2022    Dept: R

The unopposed demurrer is SUSTAINED WITH LEAVE TO AMEND.  The unopposed motion for sanctions is HELD IN ABEYANCE.

Plaintiff filed a breach of contract action against defendant.  However, no facts are alleged.  All plaintiff has done is attach an unsigned invoice from July 2018 and a Federal Express receipt showing a declared amount of $100.  The invoice does not show anything; an invoice is not a contract (at least if not signed).  The court cannot tell from this what obligation, if any, existed between the parties.  This is one of those rare cases where the complaint is so uncertain that it boils down to nothing at all.

Defendant requests sanctions in the amount of $7255 pursuant to Code of Civil Procedure section 128.7.  That is a statute often cited but rarely imposed.  The problem here is that while the complaint is meaningless on its face (and plaintiff’s counsel ought to know it), that does not mean that the complaint, if amended to allege facts properly, is meritless.  The court believes that the better course is to allow plaintiff to amend.  If the amendment presents a colorable claim, then the court’s view would be that the demurrer was well taken but the complaint overall is not within the statute.  The court is aware of defense counsel’s declaration, which makes the motion a close one.  And the court will not hesitate to sanction plaintiff and plaintiff’s counsel if what defense counsel says turns out to be true or if this is the best plaintiff can do.  The court strongly urges plaintiff’s counsel to have a meaningful discussion with defendant to see if there is any basis to go forward and, if not, to resolve the case including sanctions informally.  That might (and likely does) mean that money changes hands in defendant’s favor given the unquestionable need for a demurrer, but the court cannot tell at present.  Plaintiff has 15 days leave to amend.  The court is highly unlikely to grant leave again.