Judge: Melvin D. Sandvig, Case: 24CHCV00893, Date: 2024-12-16 Tentative Ruling

Case Number: 24CHCV00893    Hearing Date: December 16, 2024    Dept: F47

Dept. F47

Date: 12/16/24

Case #24CHCV00893

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 10/23/24.

MOVING PARTY: Defendants Northridge and Superior LLC, AMC LLC and The Bascom Group, LLC

RESPONDING PARTY: Plaintiff Consuela Hubbard

NOTICE: ok

Demurrer is to the entire complaint:

            1.  Breach of Contract

            2.  Common Counts

RULING: The demurrer is sustained without leave to amend. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 3/18/24, self-represented Plaintiff Consuela Hubbard (Plaintiff) filed a Judicial Council form complaint against Defendants Northridge and Superior LLC, AMC LLC and The Bascom Group, LLC (collectively, Defendants) alleging causes of action for: (1) Breach of Contract and (2) Common Counts. 

After meet and confer efforts failed to resolve the issues Defendants had with the complaint, on 10/23/24, Defendants filed and served the instant demurrer to the entire complaint.  (See Vo Decls.).  Plaintiff has not opposed or otherwise responded to the demurrer. 

ANALYSIS

A demurrer challenges the sufficiency of a pleading based on defects that appear on its face or from matters that are subject to judicial notice.  Blank (1985) 39 C3d 311, 318.   A demurrer may be based on the grounds that the complaint is uncertain and/or fails to state facts sufficient to state a cause of action, among others.  See CCP 430.10(e), (f). 

In the breach of contract cause of action, Plaintiff references a written agreement which is purportedly attached as Exhibit A.  (Complaint, Attachment 1, ¶BC-1.a.).  However, no exhibits are attached to the complaint.  Plaintiff alleges that Defendants breached an alleged agreement by doing the following on 3/13/22: “uninhabitable, reduce of services, injury from rodent due to failed repairs. theft due to gate broken, security door broken.”  (Id. at ¶BC-2). 

Plaintiff claims she performed all obligations which she owed under the terms of the alleged agreement, except those which she was prevented or excused from performing.  (Id. at ¶BC-3). As a result, Plaintiff claims she has suffered damages in the form of “reduction of services,” “non-notice entry to unit,” “harassment,” “retaliation,” “injury to grandson due to failure to repair garage,” “damage to property due to failed ceiling repairs,” “theft from [indecipherable] mail,” “keyed entry theft,” “failed verbal promises of [indecipherable],” and “[indecipherable] of condition of apartment [indecipherable].”  (Id. at ¶BC-4).  Plaintiff claims she is entitled to attorneys’ fees based on an unspecified agreement or statute as well as other unspecified damages.  (Id. at ¶¶BC-5, BC-6).

In the Common Counts cause of action, Plaintiff alleges that within the last two years, Defendants became indebted to Plaintiff and to other persons who are not parties to this action. (See Complaint, Attachment 2, ¶CC-1.b.).  Plaintiff, however, fails to specify what Defendants became indebted to her for, although its reasonable value is alleged to be $990.  (Id. at ¶¶CC-1.b.6, CC-2).  Again, Plaintiff claims she is entitled to attorneys’ fees based on an unspecified agreement or statute as well as other unspecified damages.  (Id. at ¶¶CC-3, CC-4).

Plaintiffs causes of action are uncertain in that portions of the facts alleged are illegible, those that can be read are merely lists of events, conditions or grievances which Plaintiff has failed to relate to the claims alleged.  As such, Defendants cannot reasonably respond.  See Khoury (1993) 14 CA4th 612, 616. 

Additionally, Plaintiff has failed to adequately plead the necessary elements of a breach of contract claim which are: (1) the contract, (2) Plaintiff’s performance or excuse for nonperformance, (3) Defendants’ breach and (4) damage to Plaintiff therefrom.  See Wall St. Network, Ltd. (2008) 164 CA4th 1171, 1178.  Additionally, if the underlying contract is alleged to be written as is it is here, the terms must be set out verbatim in the complaint or a copy of the written agreement must be attached and incorporated by reference.  Otworth (1985) 166 CA3d 452, 459.  Alternatively, the contract may be pled “by its legal effect” by alleging the substance of the contract’s relevant terms.  McKell (2006) 142 CA4th 1457, 1489.

Here, as noted above, although Plaintiff has alleged that a copy of the contract is attached to the complaint as Exhibit A, it is not.  As such, it cannot be determined what agreement, if any, was breached, the terms of such agreement, the parties to the agreement, the provisions breached, etc. 

When a common count is used as an alternative way of seeking the same recovery sought under a specific cause of action and is based on the same facts, the common count is subject to demurrer if the cause of action is demurrable.  See McBride (2004) 123 CA4th 379, 394.  Here, Plaintiff has alleged no facts to support the claimed indebtedness of Defendants to her.

While not addressed in the demurrer, the Court notes that the complaint is also uncertain with regard to Numbers 3, 4, 8 and 10.  With regard to No. 3 in the complaint, Plaintiff has failed to specify which Plaintiff is a corporation and which Plaintiff has complied with the fictitious business name laws and is doing business under the fictitious business name “Heights on the Superior.”  Since there is only one named plaintiff, it is not clear what Plaintiff intended by marking No.3.  With regard to No. 4, Plaintiff has failed to specify which Defendants are a corporation, which Doe defendants were the agents or employees of the named defendants, and/or which Defendants are joined under CCP 382.  With regard to No. 8, Plaintiff has not marked the “Common Counts” box despite the fact that there is a Common Count attachment to the complaint and Plaintiff has not specified the “Other” causes of action indicated.  This is especially confusing since only breach of contract and common counts causes are alleged in the remainder of the complaint.  With regard to No. 10, Plaintiff has not included the amount of damages claimed or specified the other relief prayed for in the complaint.

CONCLUSION

Based on the foregoing, the demurrer is sustained.  Since Plaintiff has not responded to the demurrer or given any indication that she can cure the defects in her pleading, the demurrer is sustained without leave to amend.