Judge: Maurice A. Leiter, Case: 23STCV16635, Date: 2023-09-27 Tentative Ruling

Case Number: 23STCV16635    Hearing Date: September 27, 2023    Dept: 54

Hearing Date: September 27, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendants Jonathan Lachman and Omerta Farms, LLC

Responding Party: Plaintiffs Kimberly Di Bonaventura and Boomin’ Real Estate, LLC

T/R:     DEFENDANTS’ DEMURRER IS OVERRULED.

DEFENDANTS’ MOTION TO STRIKE IS GRANTED.

DEFENDANTS TO FILE AND SERVE ANSWERS WITHIN 30 DAYS OF NOTICE OF RULING.

DEFENDANTS 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 July 17, 2023, Plaintiffs Kimberly Di Bonaventura and Boomin’ Real Estate, LLC sued Defendants Jonathan Lachman and Omerta Farms, LLC for breach of settlement agreement.

ANALYSIS

A. Demurrer to Complaint

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.)

Defendants demur to the complaint on the grounds that it is barred by res judicata, and that Plaintiffs failed to attach or recite the contract terms verbatim.

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Plaintiffs allege they and Defendants entered into a business relationship to start a cannabis dispensary. Defendants failed to pay back Plaintiffs’ investment in the business; Plaintiffs filed an earlier action to recover their funds. The parties eventually entered into the settlement agreement at issue here. Plaintiffs now allege that Defendants breached the settlement in these ways: (1) Defendants failed to pay utilities totaling approximately $320,000 prior to October 31, 2022; (2) Defendants breached their contractual representation that they were not in default under the terms of the sublease; and (3) Defendants failure to return the Mercedes Sprinter Van for which Plaintiffs paid approximately $65,000. This is sufficient to allege a cause of action for breach of contract.

The decision in a prior proceeding is res judicata when it is final and on the merits; the successor action is based on the same cause of action as the former one; and the parties to the former proceeding are the parties in the successor action or are in privity with them. (See Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82-83; Levy v. Cohen (1977) 19 Cal.3d 165, 171.) Defendants assert certain alleged breaches of the settlement agreement that were addressed in the underlying action. But the Court cannot sustain a demurrer as to piecemeal allegations in the complaint. Nor can the Court consider evidence or facts outside of the four corners of the complaint.

Defendants’ demurrer is OVERRULED.

B. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.)

Defendants move to strike Plaintiffs’ prayer for punitive damages on the ground that this is a standard breach of contract action with no allegations of malice, fraud, or oppression. The Court agrees. There are no factual allegations supporting punitive damages. Plaintiffs do not request leave to amend.

Defendants’ motion to strike is GRANTED.