Judge: Maurice A. Leiter, Case: 22STCV25435, Date: 2023-09-28 Tentative Ruling

Case Number: 22STCV25435    Hearing Date: September 28, 2023    Dept: 54

Hearing Date: September 28, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint

Moving Party: Defendant Starcrest Escrow, Inc.

Responding Party: Plaintiff Stockpile Property Ventures LLC

T/R:     DEFENDANT’S DEMURRER IS SUSTAINED WITH LEAVE TO AMEND.

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

DEFENDANT TO NOTICE. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On March 21, 2023, Plaintiff Stockpile Property Ventures LLC filed the operative first amended complaint against Defendants NTB Acquisitions LLC, Tamar Hamparsonian, Sako Hamparsonian and Starcrest Escrow, Inc., asserting causes of action for breach of contract, breach of the covenant of good faith and fair dealing, negligence, and money had and received.  Plaintiff alleges it had a contract with the NTB Defendants to sell certain real property to Defendants. NTB deposited $35,000 into escrow with Defendant Starcrest but failed to close escrow. Plaintiff alleges that NTB breached the contract by failing to close escrow, and Plaintiff is entitled to the $35,000 deposit as liquidated damages. Starcrest has refused to give release the deposit to Plaintiff.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant Starcrest demurs to the third, fourth and fifth causes of action for breach of contract, negligence and money had and received on the ground that they do not allege sufficient facts.

The Court previously sustained Defendant’s demurrer to the complaint, in which Plaintiff alleged Defendant breached the escrow contract by refusing to release Plaintiff’s deposit to Plaintiff on demand. The terms of the contract showed there was no breach by Defendant. In the FAC, Plaintiff now alleges Defendant breached the escrow contract by failing to promptly give written notice to the NTB Defendants of Plaintiff’s demand for the return of the deposit.

Defendant asserts Plaintiff cannot maintain any causes of action based on an alleged failure to notify the NTB Defendants because, per attachments to the FAC, the NTB Defendants had notice of the demand on the same day Plaintiff made it. Defendant emphasizes that the NTB Defendants objected to the demand immediately after Plaintiff made it. In opposition, Plaintiff argues that whether the NTB Defendants had actual notice of the demand is irrelevant to whether Defendant served formal written notice of the demand.

Plaintiff has failed to allege sufficient facts against Defendant. The documents show the NTB Defendants had actual knowledge of Plaintiff’s demand, as evidenced by their objection. Though Defendant may have been obligated to provide formal notice of the demand, Plaintiff cannot allege any damages that resulted from Defendant’s failure to do so. The claims for breach of contract, negligence, and money had and received fail as pleaded.

Defendant’s demurrer is SUSTAINED with leave to amend.