Judge: Michael E. Whitaker, Case: 23MCV01169, Date: 2023-08-18 Tentative Ruling

Case Number: 23MCV01169    Hearing Date: August 18, 2023    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Cennadiy Goldshteyn (“Plaintiff”) filed a Judicial Council form complaint again Defendant Epiq Company, asserting one cause of action for “breach of class action.”  Defendant Epiq Company (“Epiq”) demurs to the complaint pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f) on the grounds that the complaint is uncertain and fails to state a cause of action upon which relief can be granted.  Plaintiff has not opposed the demurrer.

ANALYSIS

1.      MEET AND CONFER REQUIREMENTS

Code of Civil Procedure, section 430.41, subd. (a) provides: “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” 

Here, Defendant’s counsel provided a declaration, indicating that on July 10, 2023, counsel left a voicemail at the phone number Plaintiff listed on the complaint, outlining Defendant’s position on the demurrer.  (Chuman Decl. ¶ 3.)  Defendant’s counsel also  memorialized the voicemail in a letter to Plaintiff which was sent via to the e-mail address listed on the complaint, and Defense counsel’s office attempted to serve Plaintiff with the letter via hand delivery at the address listed on the complaint.  (Chuman Decl. ¶¶ 4-5.)  Defendant’s counsel also sent a second email, leaving counsel’s contact information and inviting Plaintiff to discuss the merits of the anticipated demurrer.  (Chuman Decl. ¶ 7.) 

Therefore, Defendant’s counsel did attempt to meet and confer with sufficient diligence to satisfy the statutory meet and confer requirement.

2.      DEMURRER

Defendant demurs on the bases that Plaintiff’s form complaint is uncertain and fails to state a cause of action.

“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.) 

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Here, the complaint brings the cause of action for “breach of class action” and prays for “damages of: $26,000” and “misleading and violating settlement[.]”  The complaint alleges that on or about some unspecified date, a “Class Action” agreement was made between some unidentified parties, the essential terms of which are “Class Action[.]”  The complaint further alleges that on or about some unspecified date, defendant breached the agreement by “Class Action[.]”  Plaintiff alleges to have suffered damages legally (proximately) caused by defendant’s breach of the agreement as follows: “Class Action[.]”  There are no further allegations, and Plaintiff did not attach any documents to the complaint.

The complaint does not allege sufficient information for Defendant to be able to reasonably determine what issues must be admitted or denied.  Plaintiff has not alleged the date of the alleged class action agreement, the parties to that agreement, any of the terms of that agreement, how Defendant is involved, or what conduct Defendant is alleged to have done.

Therefore, the court sustains the demurrer on the grounds of uncertainty pursuant to Code of Civil Procedure section 430.10, subdivision (f). 

B.     FAILURE TO STATE A CAUSE OF ACTION

In the alternative, Defendant argues that the complaint fails to state a cause of action pursuant to Code of Civil Procedure, section 430.10, subdivision (e).  The elements for a cause of action for breach of contract are “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.”  (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)  Equally important, “[i]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.”  (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199.)   

Here, Plaintiff has alleged there is a class action agreement and that Plaintiff has been damaged in the amount of $26,000.  Yet Plaintiff has neither pled the legal effect of the purported contract nor the precise terms either verbatim or by attaching a copy of the agreement.  Moreover, Plaintiff has not indicated who the parties to that agreement are, whether Plaintiff has performed under the contract or has an excuse for nonperformance, or what conduct Defendant has done or not done that allegedly breaches the agreement.

Therefore, in the alternative, the Court sustains the demurrer for failure to state a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e).

3.      LEAVE TO AMEND

The 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.) A 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, the burden is on Plaintiff to establish that the complaint can be amended successfully. However, because no opposition was filed, Plaintiff has failed to meet that burden.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to the complaint without leave to amend.  

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

DATED:  August 18, 2023                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court