Judge: Michael Shultz, Case: 22CMCV00095, Date: 2022-09-27 Tentative Ruling
Case Number: 22CMCV00095 Hearing Date: September 27, 2022 Dept: A
22CMCV00095
Dominguez Property, LLC v. Bennett Motor Express, LLC, et al.
Tuesday,
September 27, 2022
[TENTATIVE] ORDER OVERRULING DEMURRER TO THE FIRST AMENDED
COMPLAINT
The First Amended Complaint (“FAC”)
alleges that pursuant to a First Amended Lease Agreement, the parties agreed to
extend the lease for commercial real property until March 31, 2022. The lease
term expired, but Defendant allegedly failed to vacate the premises until April
25, 2022 and did not leave the premises in good operating order, preventing
Plaintiff from delivering the premises to the next tenant on April 1, 2022.
Plaintiff seeks holdover damages and costs incurred to restore the premises. Plaintiff
alleges claims for breach of written lease, breach of guaranty, and various
claims for common counts.
II.
ARGUMENTS
A. Demurrer
filed August 30, 2022
Defendants, Bennett Motor Express,
LLC and Bennett International Group, LLC (collectively “Defendants”) demur to
all six causes of action as Plaintiff has not alleged facts to describe the
manner in which Defendants allegedly left the premises. There are no facts to
justify $650,000 in damages. The failure to allege the contract claim also
renders the claim for breach of guaranty uncertain.
The claims for common counts do not
allege a sum certain. Plaintiff does not state what is owing on the lease. The
claims for money had and received do not factually describe what funds were
received by the Defendants for Plaintiff’s use. The claims for open book
account fail because Plaintiff alleged breach of an express contract. Plaintiff
cannot allege both.
B. Opposition
filed September 16, 2022
Plaintiff argues that all claims are
well pled. Claims for common counts are generally not subject to attach by
demurrer. Such claims can simply state a conclusion of law. Regardless, Plaintiff
has adequately alleged the claim for money had and received.
C. Reply filed
September 19, 2022
Defendants contend that Plaintiff’s
opposition fails to point out how Plaintiff calculated damages of $650,000 for
alleged damage to the industrial warehouse. Plaintiff did not allege whether
the roof was broken, whether walls were removed, or whether there were holes in
the wall. The claim for money had and received fails because it is based on the
underlying contract claims, which are not well pled. Regardless, Defendant did
not actually receive
III.
LEGAL
STANDARDS
A demurrer tests the sufficiency of a
complaint as a matter of law and raises only questions of law. Schmidt v.
Foundation Health (1995) 35 Cal.App.4th 1702, 1706. In testing
the sufficiency of the complaint, the court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.
The
court may not consider contentions, deductions, or conclusions of fact or law. Moore v.
Conliffe (1994) 7 Cal.4th 634, 638. Because a demurrer
tests the legal sufficiency of a complaint, the plaintiff must show that the
complaint alleges facts sufficient to establish every element of each cause of
action. Rakestraw v.
California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the
complaint fails to state facts sufficient to constitute a cause of action,
courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126.
Sufficient
facts are the essential facts of the case "with reasonable precision and
with particularity sufficiently specific to acquaint the defendant with the
nature, source, and extent of his cause of action.” Gressley v.
Williams (1961) 193 Cal.App.2d 636, 643-644. Whether
the Plaintiff will be able to prove the pleaded facts is irrelevant. Stevens v.
Superior Court (1986) 180 Cal.App.3d 605, 609–610.
A
demurrer may also be sustained if a complaint is “uncertain.” Uncertainty
exists where a complaint’s factual allegations are so confusing, they do not
sufficiently apprise a defendant of the issues it is being asked to meet. Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code
Civ. Proc., § 430.10(f).
A
pleading is required to assert general allegations of ultimate fact.
Evidentiary facts are not required. Quelimane
Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26,
47; Lim v. The.TV
Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. However,
unlike federal courts, California state courts are not a notice pleading
jurisdiction, and notice alone is not a sufficient basis for any pleading. California is a fact pleading jurisdiction. Merely putting an
opposing party on notice is not sufficient. Bach v. County of Butte
(1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen
(1968) 260 Cal.App.2d 244, 250.
Defendants have complied with their
statutory obligations to meet and confer, however, the parties could not
resolve their issues. Declaration of Michael Simkin, ¶ 3; Code Civ. Proc., §
430.41.
IV.
DISCUSSION
A.
Demurrer to the first cause of action for breach of contract is
OVERRULED.
The
elements of a claim for breach of contract are (1) the existence of a valid and
existing contract between the parties, (2) plaintiff’s performance or excuse
for non-performance, (3) defendant’s breach; and (4) resulting damage. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. A written contract may be alleged either by its terms, set out verbatim
in the complaint or Plaintiff may attach a copy of the contract and incorporate
it by reference. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993. Plaintiff may also
allege the contract by its legal effect by alleging the substance of its
relevant terms. Id. at 993.
Plaintiff
elected to attach a copy of the October 2011 lease and the First Amended Lease.
FAC Exs. 1, 2. Plaintiff alleges it fulfilled its obligations under the lease.
FAC ¶ 15. Defendants allegedly breached the First Amended Lease by failing to
vacate and deliver possession without Plaintiff’s consent resulting in damages
of reasonable rental value plus expenses for utilities and operating expenses,
including lost rent. FAC ¶ 16.
Defendants
allegedly breached the agreement by failing to surrender the premises in “good
operating order and condition as defined by Paragraph 7.4(c) of the Lease.” FAC
¶ 17. Defendants have adequately alleged ultimate facts. Defendants do not cite
any authority that would require the level of specificity in pleading demanded.
A pleading is required to assert
general allegations of ultimate fact. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. Nor have
Defendants cited authority requiring Plaintiff to justify at the pleading stage
the amount of damages sought. Careau & Co. v. Security Pacific Business
Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390 [“It is both improper and insufficient for a
plaintiff to simply plead the evidence by which he hopes to prove such ultimate
facts."]. Finally, a demurrer tests the legal sufficiency of the allegations.
It does not test their truth, the Plaintiff’s ability to prove them, or the
possible difficulty in making such proof. Saunders v. Superior Court (1994) 27
Cal.App.4th 832, 840.
To the extent Defendants contend that the lack of
specificity renders the pleading uncertain, the objection is not well taken. Demurrers for uncertainty are strictly
construed, even where a complaint is in some respects uncertain, “because
ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California,
Inc. (1993) 14 Cal.App.4th 612, 616.
B. Demurrer to the fourth cause of action
for breach of guaranty is OVERRULED.
Plaintiff elected to attach a copy of the personal
guaranty at issue signed by the guarantor, Bennett International Group, LLC.
FAC, Ex. 3. Contrary to Defendants’ argument, the FAC alleges that the
guarantor breached the guaranty by “failing to pay rent that is due, owing, and
unpaid by Defendant, Bennett Motor, for failing to vacate and deliver
possession of the Premises by expiration of the lease, as extended, and by
holding over in possession of the premises without Plaintiff’s consent. FAC ¶
30.
C. Demurrer to the claims for common
counts, including for money had and received and open book account is OVERRULED.
Defendants
argue that Plaintiff is required to allege a sum certain. A common count is
properly asserted “whenever the plaintiff claims a sum of money due, either as
an indebtedness in a sum certain, or for the reasonable value of services,
goods, etc., furnished. It makes no difference in such a case that the proof
shows the original transaction to be an express contract, a contract implied in
fact, or a quasi-contract." (Citation.)” Kawasho Internat., U.S.A. Inc. v. Lakewood
Pipe Service, Inc. (1983) 152 Cal.App.3d 785, 793.
The common count is demurrable if
another specific cause of action, based on the same facts, is demurrable. Berryman v. Merit Property Management,
Inc. (2007) 152 Cal.App.4th 1544, 1560. Here, the underlying contract claims are well
pleaded. Additionally, Plaintiff is not “precluded by law from alleging in one
cause of action for the breach of a contract and an inconsistent theory of recovery
in another cause of action,” as the inconsistency is not fatal to the claims at
the pleading stage. Rader Co. v. Stone (1986) 178 Cal.App.3d
10, 29. Plaintiff can allege
alternative and inconsistent counts. Finally, the claims for common counts have
alleged sums certain in the prayer.
The claim for money had and received
is alleged against the guarantor, namely that the guarantor “became indebted to
Plaintiff for money received by Defendant Bennett Motor (the tenant) for the use
and benefit of Plaintiff.” The money was not used by Plaintiff. FAC ¶ 36-37.
The alleged facts adequately support the claim.
V.
CONCLUSION
Based on the foregoing, the demurrer
to all claims alleged in the First Amended Complaint is OVERRULED. Defendants
are ordered to answer within 10 days. Cal. Rules of Court, rule 3.1320.