Judge: Melvin D. Sandvig, Case: 23CHCV02417, Date: 2024-01-11 Tentative Ruling
Case Number: 23CHCV02417 Hearing Date: March 14, 2024 Dept: F47
Dept. F47
Date: 3/14/24
Case #23CHCV02417
DEMURRER TO THE
FIRST AMENDED COMPLAINT
Demurrer filed on 2/9/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiffs Talal Altamini and Mankind
Essential, Inc.
NOTICE: ok
Demurrer is to the 2nd, 4th and 5th
causes of action:
1. Breach of Contract
2. Fraudulent Deceit
3. Breach of the Covenant of Good Faith and Fair
Dealing
4. Promissory Fraud
5. Negligence
RULING: The demurrer is sustained with 30 days
leave to amend.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by
Plaintiffs Talal Altamimi, III (Altamimi) and Mankind Essentials, Inc.
(Mankind) (collectively, Plaintiffs) and Defendant Lief Organics, LLC
(Defendant) for the manufacture of fertility and dietary products for
Mankind. Based on three orders,
Plaintiffs paid Defendant deposits totaling $22,787.50. (Complaint ¶¶36-37). Plaintiffs allege that Defendant failed to
perform under the agreement. (FAC
¶¶10-11).
On 8/11/23, Plaintiffs filed this action against
Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the
Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5)
Negligence. After attempts to meet and confer
regarding the issues Defendant had with the complaint were unsuccessful, on
11/20/23, Defendant filed and served a demurrer to the original complaint. On 12/28/23, 9 court days before the 1/11/24
hearing date on the demurrer, Plaintiffs filed and served a First Amended
Complaint which rendered the demurrer moot.
(See 1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the
issues Defendant had with the First Amended Complaint, pursuant to an extension
of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed
and served the instant demurrer to the 2nd, 4th and 5th
causes of action in the First Amended Complaint. On 3/7/24, the date a reply was due to be
filed and served, Defendant filed and served a Notice of Non-Opposition to the
demurrer. See CCP 1005(b) On that same date and without any
explanation, Plaintiff filed and served a late opposition to the demurrer. On 3/8/24, Defendant filed and served a reply
to the opposition.
ANALYSIS
Despite the late filing and service, the Court considered
the opposition in ruling on the demurrer.
See CRC 3.1300(d).
5th cause of action – Negligence
The allegations in the First Amended Complaint and the
opposition indicate that the negligence cause of action arises out of the
manufacturing agreement which also forms the basis of the breach of contract
cause of action. (See FAC
¶¶10-11, 47-48; Opposition, p.1:23-24).
A failure to perform an obligation solely based on contract does not
provide a basis for tort liability. See
JRS Products, Inc. (2004) 115 CA4th 168, 180-181; Applied Equipment
Corporation (1994) 7 C4th 503, 515. Plaintiffs
have failed to allege a basis for any other duty owed to them by Defendant. As such, the negligence claim is subject to
demurrer for being duplicative of the breach of contract cause of action. See Couch (1995) 33 CA4th 1491,
1504; Award Metals, Inc. (1991) 228 CA3d 1128, 1135.
2nd cause of action – Fraudulent Deceit
& 4th cause of action – Promissory Fraud
A fraud-based cause of action must be pled with factual
specificity. See Goldrich
(1994) 25 CA4th 772, 782-783; Stansfield (1990) 220 CA3d 59, 73; Wilhelm
(1986) 186 CA3d 1324, 1331. Neither of
the fraud-based claims are supported by the necessary specific factual
allegations.
CONCLUSION
The demurrer is sustained. Due to the liberal policy of allowing leave
to amend and because this is only the First Amended Complaint, Plaintiffs are
given the opportunity to try to cure the defects in their pleading. A Second Amended Complaint is due within 30
days.
Plaintiff is warned that future late filed motion papers,
without explanation, will not be considered by the Court.