Judge: Michael E. Whitaker, Case: 22STCV28751, Date: 2023-02-03 Tentative Ruling

Case Number: 22STCV28751    Hearing Date: February 3, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

February 3, 2023

CASE NUMBER

22STCV28751

MOTIONS

Demurrer to Complaint

MOVING PARTY

Defendant Warner Center Summit Ltd.

OPPOSING PARTY

Plaintiff George Andreev, a minor by and through his Guardian Ad Litem, Elena Andreeva

 

MOTION

 

Plaintiff George Andreev, a minor by and through his Guardian Ad Litem, Elena Andreeva, sued Defendants Avanthi Abrego (Abrego) and Warner Center Summit Ltd. (collectively, Defendants) based on injuries Plaintiff alleges he sustained from a dog bite. 

 

Plaintiff filed a complaint asserting a second cause of action for breach of written contract by third party beneficiary against Defendant Warner Center Summit Ltd. (Defendant).  Warner demurs to the second cause of action.  Plaintiff opposes the demurrer.  Warner replies.   

 

ANALYSIS

 

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

 

  1. BREACH OF CONTRACT – THIRD PARTY BENEFICIARY

     

    Warner argues Plaintiff’s second cause of action for breach of written contract by third party beneficiary fails to sufficiently allege facts to constitute a cause of action. 

     

                “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”  (Civ. Code, § 1559.)  To that end, a plaintiff must allege the following in order to plead a proper claim for breach of contract by third party beneficiary:  “(1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.”  (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830; see also Kalmanovitz v. Bitting (1996) 43 Cal.App.4th 311, 314 [“While it is not necessary that a third party be specifically named, the contracting parties must clearly manifest their intent to benefit the third party”].)   Equally important, “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

     

                Here, in the complaint, Plaintiff alleges in pertinent part: 

     

 

 

 

(Complaint, ¶¶ 12-14.)  

 

The Court finds that because Plaintiff has neither attached a copy of the contract between Defendant and Abrego, nor set out the relevant terms of the contract between Defendant and Abrego in the body of the Complaint. 

 

Further, Plaintiff’s allegations based on information and belief are lacking.  Plaintiff does not assert predicate facts supporting those assertions grounded on information and belief including (1) Defendant required Abrego to maintain rental liability insurance and (2) Plaintiff was an intended third party beneficiary of the rental liability insurance.  (See, e.g., Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [“a pleading that did no more than assert boilerplate allegations that defendants knew or were on notice of the [defendant’s] conduct would not be sufficient nor would allegations of information and belief that merely asserted the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true”] [cleaned up].) 

 

More important, the inference which arises from Plaintiff’s allegation as set forth in paragraph 12 is that no contract exits – “WCS failed to require ABREGO to obtain and maintain rental liability insurance per the contractual requirement between Defendants.”  If accepted as true for purposes of the demurrer, then Plaintiff cannot maintain a breach of contract claim because no contract exists in the first place. 

 

Accordingly, the Court finds Plaintiff’s allegations fall short asserting sufficient ultimate facts to support the second cause of action for breach of written contract – third party beneficiary.

 

  1. LEAVE TO AMEND

     

    A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action.  (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim.  (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her  burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) 

     

    Here, Plaintiff explains that on January 10, 2023, Plaintiff served a request for production of documents on Defendant and Defendant Abrego requesting a copy of the parties' Insurance Policy, the subject agreement referenced in Plaintiff’s second cause of action.  Defendants’ deadline to respond to this discovery is February 14, 2023.  Thereafter, Plaintiff will be able to amend his Complaint and provide a copy of the Insurance Policy in support of its second cause of action against Warner.  Accordingly, the Court finds Plaintiff has met his burden in establishing how he can amend the complaint to change its legal effect and thus grants Plaintiff leave to amend.

     

    CONCLUSION AND ORDER

     

    Therefore, the Court sustains Defendant’s demurrer to Plaintiff’s second causes of action in the Complaint with leave to amend.  Plaintiff shall file and serve an amended complaint in conformance with the Court’s ruling on or before March 17, 2023. 

     

    Defendant shall provide notice of the Court’s ruling and file a proof of service of such.