Judge: Michael Shultz, Case: 22CMCV00154, Date: 2022-08-19 Tentative Ruling
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Case Number: 22CMCV00154 Hearing Date: August 19, 2022 Dept: A
22CMCV00154
Cheryl C. Manuel v. Hazel R. Anderson
[TENTATIVE] ORDER
I.I I. BACKGROUND
The First Amended Complaint (“FAC”)
alleges that Defendant breached a contract with Plaintiff wherein Defendant
agreed that Plaintiff would own residential real property during Plaintiff’s
lifetime. Defendant allegedly breached the agreement by listing the property
for sale. Plaintiff alleges a claim for breach of contract and prays for
consequential and compensatory damages pursuant to the Civil Code. Plaintiff has not alleged facts to support the
existence of a contract, whether it was oral or written, or any of its material
terms.
II.
II. ARGUMENTS
The demurrer, filed June 13, 2022,
argues that the FAC does not allege facts to support the existence of a
contract or its relevant terms. Nor has Plaintiff alleged facts to support each
element of the cause of action. The FAC refers to a “document”, but documents
are not attached to the pleading. FAC, 2:8-9.
Plaintiff filed an opposition on
August 3, 2022. The opposition was tardy. Plaintiff was required to file the opposition by July 29, 2022. Code Civ. Proc., § 1005(b). The court, however, has discretion to consider late papers in
favor of the strong policy favoring disposition of the case on the merits. Kapitanski
v. Von’s (1983) 146 Cal.App.3d 29, 32. [“Judges are well aware of the
unnecessary burdens placed on courts and counsel when strict compliance with
local procedural rules results in the expenditure of unnecessary time and money
for the preparation of later section 473 motions.”].
The court’s docket does not
reflect that Defendant filed a reply brief. To avoid any prejudice to
Defendant, the court will also consider Defendant’s reply brief if it is
untimely filed.
Plaintiff argues that the written
contract is a private document and should not be circulated in a public forum.
The exhibits filed with the FAC, and additional evidence support Plaintiff’s
claims. Plaintiff argues that the allegations are clear.
Defense counsel met and
conferred with Plaintiff prior to filing the demurrer. Code Civ. Proc., §
410.41; Declaration of Andre L. Clark, Code Civ. Proc., § 430.41. The court has
reviewed Plaintiff’s declaration confirming that she received a telephone call
from someone representing Defendant and that she received a letter of formal
introduction by mail. Declaration of Cheryl C. Manuel, 2:18, and 2:24-25. However,
Plaintiff disputes having met and conferred about the issues raised in demurrer.
Id., 2:21-22. Given the parties’ respective arguments, it does not
appear that further conference between the parties will be productive.
Therefore, the court exercises its discretion to consider the demurrer on the
merits.
A demurrer reaches defects
that appear on the face of the complaint. The court considers the allegations
and matters that are subject to judicial notice. All facts are accepted as true
for purposes of the demurrer. Saunders v. Superior Court (1994) 27 Cal.
App. 4th 832, 838. 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. Id. at 840.
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.App.4th
634, 638.
Because a demurrer tests the
legal sufficiency of a pleading, the plaintiff must show that the pleading
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
pleading fails to state facts sufficient to constitute a cause of action,
courts should sustain the demurrer. Code Civ. Procedure § 430.10(e); Zelig
v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.
Sufficient facts are the
essential facts of the case stated, "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; 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.
Fundamentally, an enforceable
contract generally involves parties capable of contracting, their mutual
consent, a lawful object, and sufficient cause or consideration. Code Civ.
Proc., §1550. To prevail on a claim for
breach of contract, Plaintiff must establish (1) the existence of
a valid 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. Additionally, the pleading must
indicate on its face whether the contract is written, oral, or implied by
conduct. If the action is based on an 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 instrument must be attached and incorporated by reference.” Otworth
v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.
While Plaintiff argues that documents forming the contract are personal and
should not be made a public document, Plaintiff is still required to allege the
contract’s material terms verbatim. Id.
The FAC alleges that the contract at issue is formed from
two different notes and incorporates Exhibits A and B, which do not contain any
documents. Note B allegedly obligated
Plaintiff to pay for upkeep and property taxes on the home using rental income
from a different home. FAC 2:14-17. However, Plaintiff alleges that the
contract relating to upkeep and taxes was later revised, although Plaintiff
does not allege the substance of the revision. FAC 2:15-16.
Plaintiff also alludes to a tenant’s right of quiet
enjoyment of rental property. FAC, 5:7-9. However, the FAC does not allege the
existence of a rental agreement or its material terms, nor does it establish
the existence of a landlord/tenant relationship or if the breach of contract
claim includes breach of a rental agreement. In short, the FAC is uncertain and
fails to state a cause of action.
IV. .IV. CONCLUSION
Based on the foregoing, the demurrer is SUSTAINED. Leave
to amend is proper where Plaintiff has not had a fair opportunity to amend, and
the defect is capable of being cured. Even if the defect is substantive, “a
demurrer should not be sustained without leave to amend if there is a
possibility that subsequent amendments will supply omitted allegations.” Colvig
v. RKO Gen. (1965) 232 Cal. App. 2d 56, 69 70. Accordingly, the court
grants Plaintiff 10 days leave to file a second amended complaint. Cal Rules of
Court, Rule 3.1320.