Judge: Maurice A. Leiter, Case: 23STCV01889, Date: 2023-08-10 Tentative Ruling

Case Number: 23STCV01889    Hearing Date: August 10, 2023    Dept: 54

Hearing Date: August 10, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant Lich Kim Tran

Responding Party: None

T/R:     DEFENDANT’S DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.

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 and non-opposition.

BACKGROUND

On January 27, 2023, Plaintiff Deep Diam, Inc. filed a complaint against Defendant Lich Kim Tran, individually and as Personal Representative and Successor in Interest to the Estate of Hieu Duc Dang, asserting causes of action for (1) breach of contract; (2) account stated; (3) open book account; and (4) goods sold and delivered. Plaintiff alleges Plaintiff and Decedent had a contract for Decedent to purchase diamonds from Plaintiff. Plaintiff alleges Defendant did not pay for or return the diamonds.

REQUEST FOR JUDICIAL NOTICE

Defendant’s requests for judicial notice are GRANTED.

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 all 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 Tran demurs to the complaint on the grounds that she is not the personal representative of Decedent’s estate and not a party to the contract between Decedent and Plaintiff. Defendant provides the order appointing Deepak Shah as Decedent’s personal representative. (RJN, Exh. A.) Plaintiff does not allege Defendant is a party to the contract. Plaintiff filed a non-opposition to this motion and did not request leave to amend.

Defendant’s demurrer is SUSTAINED without leave to amend.