Judge: Monica Bachner, Case: 22STCV30793, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV30793    Hearing Date: February 8, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Bloqwear Retail, Inc.’s demurrer to Plaintiff Alwants, LLC’s, 1st cause of action in its complaint is sustained with 15 days leave to amend.

          Defendant Bloqwear Retail, Inc. (“BloqUV”) (“Defendant”) demurs generally to the complaint (“Complaint”) of Plaintiff Alwants, LLC (“Alwants”) (“Plaintiff”).  (Notice of Demurrer, pgs. 1-2.)

Background

On September 20, 2022, Plaintiff filed its operative against Defendant BloqUV and non-moving Defendant APS El Salvador S.A. de C.V. (“APS”) in the instant action alleging two causes of action: (1) declaratory relief, and (2) damages and indemnity arising from a series of orders Plaintiff alleges Defendant BloqUV placed with APS in or about 2022 to produce certain apparel items for Defendant BloqUV that identified “Alwants, LLC c/o APS El Salvador S.A. de C.V.” as the “vendor,” despite Defendant BloqUV knowing at all times that Plaintiff was not the vendor.  (Complaint ¶¶9-11.) 

Plaintiff alleges Defendant BloqUV knew Plaintiff was not a principal in connection with the orders or the fulfillment thereof and that Plaintiff was acting as an intermediary/agent for APS to collect and receive in the United States.  (Complaint ¶11.)  Plaintiff alleges Defendant BloqUV knew and understood that APS was the principal in the transaction and that APS was the party that would be producing the apparel and was the party obligated under any contract that may have been made.  (Complaint ¶11.)  Plaintiff alleges all of Defendant BloqUV’s dealings with respect to the specifications and subject of those purchase orders and the performance thereof was with APS, that APS produced the goods and performed the services requested and required by Defendant BloqUV.  (Complaint, ¶ 12.) Plaintiff alleges Defendant BloqUV knew APS was the principal and that performance of the contract was the responsibility solely of APS and Plaintiff’s role was as an agent/intermediary for the purpose of collecting payment in the United States.  (Complaint ¶12.)  Plaintiff alleges its designation on the purchase orders was at the request of APS so that payment would be made to Plaintiff and so that Plaintiff could process those payments in the United States to satisfy and provide collateral for certain financial obligations which APS had to Plaintiff (unrelated to the purchase orders placed by Defendant BloqUV).  (Complaint ¶13.)  Plaintiff alleges it has no liability for any of the transactions related to the purchase orders placed by Defendant BloqUV.  (Complaint ¶15.)  Plaintiff alleges that it was at most an agent/intermediary for a disclosed principal and as such has no contractual liability or legal liability, or any liability whatsoever to Defendant BloqUV for alleged breaches or failures in performance by APS.  (Complaint ¶15.)  Plaintiff alleges Defendant BloqUV claims for damages against Plaintiff for alleged breaches of the contract/terms of the purchase orders including but not limited to the value of fabric delivered to APS to be used in performance of the purchase orders and has demanded payment by Plaintiff.  (Complaint ¶16.)

On October 31, 2022, Defendant BloqUV filed the instant demurrer.  On January 26, 2023, Plaintiff filed its opposition.  As of the date of this hearing, Defendant BloqUV has not filed a reply.

Summary of Demurrer

In support of its demurrer to Plaintiff’s Complaint, Defendant BloqUV argues Plaintiff’s first cause of action fails because (1) Plaintiff fails to allege whether the contract is written, oral, or implied by conduct; (2) fails to state facts sufficient to constitute a cause of action; and (3) Plaintiff does not have the legal capacity to sue.  (Demurrer, pg. 3; C.C.P. §§430.10(g), 430.10(e), 430.10(b).)

Failure to Allege Contract is Written, Oral, or Implied

Declaratory Relief (1st COA)

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 or “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.)  Defendant BloqUV demurs on the ground Plaintiff fails to allege whether the subject contract is written or oral nor does it set forth any of the material terms of the contract.  (Demurrer, pg. 5.)

Plaintiff argues in opposition that it can be clearly inferred that the subject purchase orders are written.  (Opposition, pg. 3; Complaint ¶10 at 2:28-3:1.)  Plaintiff argues where a complaint alleges facts from which the nature of the subject contract can be inferred, a demurrer on the ground that then nature of the subject contract is not expressly stated will be overruled.  (Maxwell v. Dolezal (2014) 231 Cal. App. 4th 93, 98-99.)  In Maxwell, the Court read the Complaint as a whole and determined the contract was identified as a written contract in a separate cause of action. Unlike in Maxwell, here, it cannot be inferred from the Complaint’s only allegation that “[s]ome of these orders were placed identifying ‘Alwants, LLC c/o APS El Salvador S.A. de C.V.’ as the ‘vendor’” that the contract was written.

Accordingly, Defendant BloqUV’s demurrer to the first cause of action for failure to allege the contract is written, oral, or implied by conduct is sustained with 20 days leave to amend.

          Conclusion

          Defendant BloqUV’s demurrer to Plaintiff’s 1st cause of action for declaratory relief is sustained with 15 days leave to amend.

Dated:  February ____, 2023

Hon. Monica Bachner

Judge of the Superior Court