Judge: Maurice A. Leiter, Case: 25STCV00268, Date: 2025-03-18 Tentative Ruling

Case Number: 25STCV00268    Hearing Date: March 18, 2025    Dept: 54

Hearing Date: March 18, 2025

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant Solestage, Inc.

Responding Party: Plaintiff Andrew Gervase

T/R:      DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

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 opposition.

BACKGROUND

On January 6, 2025, Plaintiff Andrew Gervase filed a complaint against Defendant Solestage, Inc., asserting causes of action for (1) breach of contract; (2) common counts; and (3) conversion. Plaintiff alleges that Plaintiff and Defendant had an agreement in which Plaintiff would consign clothing with Defendant and Defendant would pay Plaintiff a percentage of the sale of the clothing or return the clothing to Plaintiff in the same condition. Plaintiff alleges that Defendant failed to return some clothing at all and failed to return other clothing in the same condition.

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 demurs to the complaint on the grounds that it fails to state sufficient facts.     

“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.) “The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (citing 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 508, p. 543).) To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

As stated, Plaintiff alleges the parties had an agreement in which Plaintiff would consign clothing with Defendant and Defendant would pay Plaintiff a percentage of the sale of the clothing or return the clothing to Plaintiff in the same condition. Plaintiff alleges that Defendant failed to return some clothing at all and failed to return other clothing in the same condition. These allegations are sufficient to state claims for breach of contract, common counts, and conversion.

Defendant’s demurrer is OVERRULED.