Judge: Melvin D. Sandvig, Case: 23CHCV02844, Date: 2024-01-11 Tentative Ruling
Case Number: 23CHCV02844 Hearing Date: January 11, 2024 Dept: F47
Dept. F47
Date: 1/10/24
Case #23CHCV02844
DEMURRER TO THE
ORIGINAL COMPLAINT
Demurrer and Motion to Strike filed on 11/16/23.
RESPONDING PARTY: Plaintiff Shawn Campbell
NOTICE: ok
Demurrer is to the entire complaint:
1. Breach of Contract
2. Breach of Covenant of Good Faith and Fair
Dealing
3. Fraud
RELIEF REQUESTED IN MOTION TO STRIKE: An order
striking certain portions of the complaint.
Specifically, Defendants seek to strike the
words “his wife, and 4 young children” on page 4, lines 9-10 and the entirety
of the “Factual Allegations” beginning at page 4, line 12 with the words
“Shortly after he began . . . .” through page 9, line 11 ending with the words
“several screen shots of it.”
RULING: The demurrer is sustained and the motion
to strike is granted, both with 20 days leave to amend.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of Plaintiff Shawn Campbell’s (Plaintiff)
employment with Defendants Allegiance Gold LLC, Unik Marketing LLC and/or
MediaHyve. The complaint includes
allegations regarding a seemingly hostile work environment, including claims of
labor code violations, discrimination, harassment, etc. However, Plaintiff seems to allege that
instead of following through with his plan to make a complaint to “the state
Labor Enforcement Task Force” regarding the aforementioned working conditions,
Plaintiff signed an agreement whereby Defendants offered to lay him off and to
pay him a severance of $16,125.
Plaintiff contends that a copy of the agreement is attached to the
complaint as “exhibit e.” (See
Complaint p.9:13-14). However, no
exhibits are attached to the complaint.
(See Complaint, generally).
Plaintiff alleges that he received a check in the amount
of $9,996.00 and when he asked about the lesser amount, he was told that taxes
were removed from the agreed upon amount of $16,125. (Complaint, p.9:16-23). Plaintiff claims that he “knew” the
explanation was not true and that the check for the lesser amount was in
retaliation for Plaintiff’s earlier complaints about working conditions. (Complaint, p.9:18-10).
On 9/25/23, Plaintiff, representing himself, filed this
action against Defendants Allegiance Gold, LLC; Unik Marketing LLC; Mediahyve; Mark
Naaman; Assadour Ebkarian; Fred Palmerino; Octavio Rocha and Monica Ward
(collectively, Defendants) for: (1) Breach of Contract, (2) Breach of the
Covenant of Good Faith and Fair Dealing and (3) Fraud. Without providing any evidence, Defendants
contend that Mediahyve is a fictitious business name for Unik Marketing,
LLC. (See Demurrer, p.5,
fn.3).
After meet and confer efforts failed to resolve the
issues Defendants had with the complaint, on 11/16/23, Defendants filed and
served the instant demurrer to the entire complaint and the instant motion to
strike certain allegations in the complaint.
Plaintiff has not opposed or otherwise responded to the demurrer and/or
motion to strike.
ANALYSIS
The entire complaint appears to be based on a severance
agreement which Plaintiff contends Defendants induced him into entering with
false information and knowing that they would breach the agreement. (See Complaint, p.2:1-5). As noted above, although Plaintiff contends
that a copy of the agreement is attached to the complaint as “exhibit e,” no
exhibits are attached to the complaint.
Defendants have provided a copy of a Severance Agreement,
requested that the Court take judicial notice of same and consider it as part
of the original complaint. (See
Demurrer, p.1, fn.1; De Castro Decl., Ex.A).
Defendants also request that the Court take judicial notice of a check
and pay-stub provided to Plaintiff.
(Demurrer, p.2:6-11; De Castro Decl., Ex.B). Defendants have not made their request for
judicial notice in a separate document as required. See CRC 3.1113(l). Additionally, Defendants have not shown that
the documents are subject to judicial notice under the circumstances (i.e.,
Plaintiff did not include them as exhibits to the complaint and it is not clear
that they are not reasonably subject to dispute). The Court cannot determine on demurrer that
the agreement provided by the Defendants is the agreement on which Plaintiff
bases his claims. Nor has Plaintiff
established that the Court can properly take judicial notice of the other
documents. As such, Defendants’ request
for judicial notice is denied.
Regardless, Plaintiff has still failed to adequately
plead his claims.
Based on the allegation that Plaintiff “signed the
agreement,” it appears that the contract which underlies all of Plaintiff’s
claims was written. (Complaint,
p.9:14-15). If a breach of contract
claim is based on a written contract, the terms must be set out verbatim in the
body of the complaint or a written copy of the contract must be attached and
incorporated by reference. See Otworth
(1985) 166 CA3d 452, 459. As noted
above, a copy of the contract is not attached to the complaint and Plaintiff
has failed to set out the terms of the contract verbatim in the complaint. (See Complaint, generally). As such, the Court cannot determine the
parties to the contract, its terms and/or whether the alleged conduct by
Defendants constitutes a breach of same.
Plaintiff has also failed to allege sufficient facts to
establish that he may make a separate claim for breach of the implied covenant
of good faith and fair dealing. See
Guz (2000) 24 C4th 317, 352.
The fraud cause of action is also not pled with the
requisite factual specificity. It is not
clear what the alleged misrepresentations were, who made them or how they were
made. See Lazar (1996) 12
C4th 631, 685; West (2013) 214 CA4th 780, 793.
Defendants’ claim that this Court lacks jurisdiction over
this matter because the amount of damages is within the jurisdictional limits
of the small claims court is without merit.
Defendants have failed to definitively establish the amount of damages
at issue in this action. Even if the
amount is below this Court’s jurisdictional limit, Defendants have not shown that
this Court lacks jurisdiction over the matter and/or that the complaint may be
challenged on this ground on demurrer.
Plaintiff has included many pages of “factual
allegations” in the complaint which are seemingly irrelevant to the claims Plaintiff
has ultimately pled. Specifically, the
words “his wife, and 4 young children” on page 4, lines 9-10 and the entirety
of the “Factual Allegations” beginning at page 4, line 12 with the words
“Shortly after he began . . . .” through page 9, line 11 ending with the words
“several screen shots of it.” As such,
the Court may properly strike these allegations. CCP 435, 436(a).
CONCLUSION
The demurrer is sustained and the motion to strike is
granted. Due to the liberal policy of
allowing leave to amend and because this is only the original pleading,
Plaintiff is given the opportunity to amend the complaint. An amended pleading is due to be filed and
served within 20 days.
The Court notes that Defendants have failed to
electronically bookmark the exhibits attached to the demurrer as required by
CRC 3.1110(f)(4). Counsel is warned that
failure to comply with court rules in the future may result in matters being
continued so that papers can be re-submitted in the proper format, papers not
being considered, and/or the imposition of sanctions.