Judge: Michael E. Whitaker, Case: 23SMCV02742, Date: 2023-10-19 Tentative Ruling

Case Number: 23SMCV02742    Hearing Date: October 19, 2023    Dept: 207

TENTATIVE RULING

MOTIONS

Defendant Creating Culinary Communities, LLC (“Defendant”) demurs to the single cause of action in the complaint for breach of contract for failure to state a claim and uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f) on the basis that Plaintiff failed to attach a copy of the contract and did not sufficiently allege the terms of the contract. 

Plaintiff Snap O Razzo Hot Dogs, LLC (“Plaintiff”) opposes the demurrer, moves to strike the demurrer, and requests that default be entered against Defendant for failure to timely demur to the complaint.

Defendant replies in support of the demurrer and opposes Plaintiff’s motion to strike the demurrer. 

No reply was filed in support of Plaintiff’s motion to strike.

MOTION TO STRIKE

1.      Timeliness of Motion to Strike

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  (Code Civ. Proc. § 1005, subd. (b).)  Here, Plaintiff filed its motion to strike the demurrer on October 6, and set it for the same hearing date as the demurrer, October 19.  Sixteen court days prior to October 19 is September 27.  Thus, Plaintiff did not provide the Court or Defendant with adequate notice of its motion to strike, nor did Plaintiff move ex parte for an order shortening time.  These procedural grounds alone create a sufficient basis to deny the motion to strike.

2.      Merits of Motion to Strike

Nonetheless, since the arguments in the motion to strike overlap with the arguments Plaintiff raises in opposition to the demurrer, the Court will also analyze the merits of the arguments.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”  (Cal. Rules of Court, rule 3.110(d).)

            Here, Plaintiff contends it served Defendant via substitute service on June 29, 2023 by handing the documents to “Juan Carlos Torres.” (Baumgarten Decl. ¶ 3, Ex. 1).  Plaintiff did not file a proof of service.  Thereafter, the parties negotiated a one-week extension for Defendant to respond to the complaint while the parties engaged in settlement negotiations.  Plaintiff contends it only granted the initial extension for Defendant to answer the complaint, not to demur.  (Baumgarten Decl. ¶¶ 4-6, Exhs. 2-3.)   On August 8, 2023 during a conversation regarding settlement, according to Plaintiff, the parties agreed to another extension for Defendant to “answer” the complaint to August 14, 2023.  (Baumgarten Decl. ¶ 7, Exh. 4.)  

            On August 15, Defendant sent Plaintiff a “meet and confer” email and filed a “Declaration of demurring party in support of automatic extension” to extend the time to respond to the complaint by an additional 30 days, indicating that the parties had not yet been able to meet and confer, but a meet and confer letter had been sent and meet and confer efforts were “ongoing.”  (Baumgarten Decl. ¶ 9, Exh. 5.)   On the same day, Plaintiff’s counsel responded to the email contending:  “the "meet and confer" letter and section 430.41 declaration did not comport with the original agreement for an extension to answer (not demur), and that Plaintiff was not waiving any rights in that regard, but that C3 could nonetheless have until Friday, August 18, 2023, to answer.”  (Baumgarten Decl. ¶ 10, Exh. 6.)   Defendant’s counsel did not reply.  (Baumgarten Decl. ¶ 11.) 

            In opposition,[1] Defendant advanced the declaration of counsel, Diyari Vasquez.  Defendant’s counsel acknowledges that a request for an extension to respond to the complaint was made to, and granted by, Plaintiff.  However, Defendant’s counsel states that she “did not understand that Plaintiff’s counsel was in any way limiting the response to only filing an “Answer.” In fact, Plaintiff’s counsel never informed me that the extension to respond to the Complaint was conditioned on cutting off C3’s substantive rights or procedural options.”  (Vasquez Decl. ¶¶ 5-7, Exhs. A-B.)  Further, Defendant’s counsel acknowledges that a conference call with Plaintiff’s counsel occurred on August 8, but Defendant’s counsel contends that the parties agreed that Defendant had until August 14 to “respond” to the complaint.  Yet, Defendant’s counsel concedes she received an email from Plaintiff’s counsel apparently memorializing the agreement reached on August 8.  (Vasquez Decl. ¶¶ 8-9, Exh. C.) 

             Based upon the record, the Court finds that August 18, 2023 was the operative deadline for Defendant to address the complaint.  What is unclear from the record is how Defendant was to address the complaint – by answering or responding with a demurrer for example.  To the Court, there is not a meeting of the minds as to the extensions being granted for an answer or response.  But regardless, August 18 was the deadline for Defendant to address the complaint.  However, Defendant filed the demurrer on September 14.  As such, the Court finds the demurrer to be untimely. [2]

            Yet, the Court has broad discretion to consider a late filed demurrer.  (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)  Moreover, “the law strongly favors trial and disposition on the merits[.]  (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24 [in the context of setting aside entry of default].)  Further, Plaintiff has not demonstrated that it has been prejudiced in any way by the delay.  As such, the Court exercises its discretion and considers the demurrer. [3]

            Consequently, Plaintiff’s motion to strike the demurrer as untimely is denied, and Defendant’s untimeliness, if any, will not serve as a basis to overrule the demurrer.

DEMURRER

“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, Defendant does not demonstrate that any portions of the Complaint are so bad that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against Defendant.  The Court thus declines to sustain Defendant’s demurrer on the basis of uncertainty. 

B.     FAILURE TO STATE A CAUSE OF ACTION

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.”  (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) 

Defendant argues that the complaint fails to state a cause of action for breach of contract because it neither attaches a copy of the contract to the complaint, nor does it allege the material terms of the contract. 

With regard to the proper pleading standard for a breach of written contract, “[t]he correct rule is that a plaintiff may plead the legal effect of the contract rather than its precise language.”  (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)  In Miles, the Court of Appeal noted “where a written instrument is the foundation of a cause of action it may be pleaded in haec verba by attaching a copy as an exhibit and incorporating it by proper reference.”   (Ibid., emphasis in original & quoting Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, overruled on other grounds.)  Thus, attaching a copy of the written agreement and/or pleading the contents of a written agreement verbatim are two ways of pleading a breach of contract claim, but not “the exclusive means of pleading a contract.”  (Ibid., emphasis in original). To wit, a “plaintiff's failure either to attach or to set out verbatim the terms of the contract was not fatal to his breach of contract cause of action.”  (Ibid.) 

Here, the complaint alleges:

7.  Effective August 25, 2021, Plaintiff and Defendant entered into a “Vendor Agreement”.  Under the terms of the Vendor Agreement, Defendant agreed to purchase certain annual quantities of Product from Plaintiff.  Specifically, section 1 of the Vendor Agreement provides:

     “1.       Purchases

     C3, directly and/or through its various subsidiaries and related entities, agrees to purchase SORHD.  C3 shall purchase SORHD in the minimum amount of One Hundred and Fifty Thousand (150,000) pounds per year.  For clarification, and for the avoidance of doubt, C3 agrees to purchase no less than 150,000 pounds of SORHD, calculated from the Effective Date through the following twelve-month period, as well as during each subsequent twelve month period throughout the Term.”

     Section 1 of the Vendor Agreement was subsequently amended by a written amendment, entitled “Addendum No. 1 to Vendor Agreement.  Addendum No. 1 provides in pertinent part:

“1. Notwithstanding Section 1 of the Agreement, during the first twelve (12) months of the Term, C3 shall only be required to purchase a minimum of 75,000 pounds of SORHD.  At any time during the Term, in the event there are any issues related to Proprietor’s or Proprietor’s third party distributor’s ability to fulfill any C3 orders for SORHD, the minimum amount required shall be reduced by the amount of any unfulfilled delivery of SORHD or delivery that it delayed by more than two (2) weeks.  Each Party shall use commercially reasonable efforts to remove or avoid any such issues including, but not limited to, potentially using alternative distributors or distribution methods.”

8.  Defendant has failed to purchase the required annual quantities of the Product from Plaintiff under section 1 of the Vendor Agreement as amended.  Plaintiff has provided Defendant written notice of the breach, and made demand that Defendant cure the breach within the time afforded by the Vendor Agreement, but Defendant has failed and refused to do so, and the time to cure is now expired.

(Complaint ¶¶ 7-8.)

Plaintiff further alleges “Plaintiff has performed all conditions and obligations to be performed on its part under the Vendor Agreement, except those which it has been excused or prevented from performing” and “As a direct and proximate result of Defendant’s breaches, Plaintiff has suffered, and will continue to suffer damages of at least $146,000, the precise amount of which will be established at the time of trial, according to proof.”  (Complaint ¶¶ 10-11.)

Defendant contends this is insufficient because it does not allege the description of the product; the price for the product; the identity of the proprietor or third party distributors; the time and manner of payment; the consideration for the contract; “contractual terms regarding authority or capacity”; or the delivery dates. 

            These additional details which amount to evidentiary facts are not necessary at this stage of the litigation.  Plaintiff has alleged the existence of a contract, whereby Defendant would purchase at least 75,000 pounds of SORHD [presumably Snap O Razzo Hot Dogs] per 12-month period (Complaint ¶ 7); Plaintiff’s performance (Complaint ¶ 10); Defendant’s breach (Complaint ¶ 8); and Plaintiff’s damages (Complaint ¶ 11.)

Therefore, for pleading purposes, the Court finds that Plaintiff has stated a cause of action for breach of contract.

CONCLUSION AND ORDER

For the reasons stated, the Court denies Plaintiff’s Motion to Strike the Demurrer and  overrules Defendant’s Demurrer to the Complaint.

Defendant shall file an answer to the complaint on or before November 2, 2023. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  October 19, 2023                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court