Judge: Melvin D. Sandvig, Case: 23CHCV00276, Date: 2023-12-12 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV00276    Hearing Date: December 12, 2023    Dept: F47

Dept. F47

Date: 12/12/23

Case #23CHCV00276

DEMURRER TO THE FIRST AMENDED COMPLAINT

Demurrer filed on 7/25/23.

MOVING PARTY: Defendants Fortune Energy, Inc.; Fortune Energy Distribution, Inc.; Fortune Energy Distribution Corp.; and F.E. Distribution Inc.

RESPONDING PARTY: Plaintiff Southwest Marine and General Insurance Company

NOTICE: ok

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Contract

            2.  Indemnity

RULING: The demurrer is overruled.  Answer is due within 30 days.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of payments made by Plaintiff Southwest Marine and General Insurance Company (Plaintiff) as surety on a Customs Bond issued by Plaintiff on behalf of Defendant Fortune Energy, Inc.  On 2/1/23, Plaintiff filed this action against Defendant Fortune Energy, Inc. and Defendants Fortune Energy Distribution, Inc.; Fortune Energy Distribution Corp.; and F.E. Distribution Inc., as the alter egos of Fortune Energy, Inc.  (collectively, Defendants), for breach of contract and indemnity.  In response to a demurrer to the original complaint, on 6/5/23, Plaintiff filed the subject First Amended Complaint which alleges the same two causes of action. 

After meet and confer efforts failed to resolve the issues Defendants had with the First Amended Complaint, on 7/25/23, Defendants filed and served the instant demurrer.  Plaintiff has opposed the demurrer and Defendants have filed a reply to the opposition. 

ANALYSIS

Procedural Defects

The demurrer fails to state each ground for demurrer in a separate paragraph.  (See Demurrer, p.ii:7-16);  CRC 3.1320(a).  The demurrer also fails to indicate whether each ground for demurrer applies to the entire complaint or to specified causes of action.  Id.  Additionally, the memorandum of points and authorities filed in support of the demurrer does not include a statement of the facts of the case.  See CRC 3.1113(b).  Further, the demurrer indicates that it addresses the First Amended Complaint filed on 2/1/23 when the First Amended Complaint was actually filed on 6/5/23.  (See Demurrer, p.1:3-5).

Merits

A demurrer may be based on the following grounds, among others: the pleading does not state facts sufficient to constitute a cause of action; the pleading is uncertain; and in an action based on a contract, it cannot be ascertained from the pleading whether the contract is written oral, or implied by conduct.  CCP 430.10(e), (f), (g). 

For purposes of demurrer, all properly pleaded facts are accepted as true.  Align Technology, Inc. (2009) 179 CA4th 949, 958.  In ruling on a demurrer, the Court considers the allegations in the complaint and matters of which it is required to or may take judicial notice.  CCP 430.30(a); Groves (2002) 100 CA4th 659, 667.

The elements of a breach of contract cause of action are: (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach and (4) the resulting damage to the plaintiff.  Richman (2014) 224 CA4th 1182, 1186.  Plaintiff has sufficiently alleged the existence and terms of a written contract between the parties based on the Customs Bond Application & Indemnity and Customs Bond incorporated in and attached to the First Amended Complaint as Exhibits A and B.  (See FAC ¶¶10, 12).  The allegations in the First Amended Complaint are sufficient to establish that the breach of contract claim is based on both of the foregoing documents.  Plaintiff has also sufficiently alleged its performance or excuse for non-performance under the contract, Defendants’ breach and damages to Plaintiff as a result.  (FAC ¶¶11, 13-15).

Similarly, the First Amended Complaint alleges sufficient facts to state a cause of action for indemnity as an alternative and cumulative remedy.

It cannot be determined from the face of the pleading or matters of which judicial notice has been requested or can be taken, that the claims asserted in the First Amended Complaint are time barred. 

Plaintiff has alleged a sufficient basis to name Defendants Fortune Energy Distribution, Inc.; Fortune Energy Distribution Corp.; and F.E. Distribution Inc. as defendants in this action based on an alter ego theory of liability.  (See FAC ¶¶2-5, 7). 

CONCLUSION

The demurrer is overruled.  Answer is due within 30 days.