Judge: Olivia Rosales, Case: 22NWCV00311, Date: 2022-12-15 Tentative Ruling

Case Number: 22NWCV00311    Hearing Date: December 15, 2022    Dept: SEC

AGUILA v. IPSWICH SHELLFISH CO, INC.

CASE NO.:  22NWCV00311

HEARING:  12/15/22

#4

TENTATIVE ORDER

Defendants INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, INC. and MONTANY BAIL BONDS, INC.’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with 20 days leave to amend.  

Moving Party to give Notice.

This breach of contract action was filed by Plaintiff HENRY AGUILA (“pro per”) on April 25, 2022. On September 7, 2022, the operative Second Amended Complaint (“SAC”) was filed.

The SAC alleges, in pertinent part: “On or about June 1, 2011, Thee Aguila, Inc…. entered into an agreement with Defendant Ipswich to purchase lobsters.” (FAC ¶7.) “Plaintiff personally guaranteed the lobster purchases. Defendant Ipswich was given the written guarantee by Plaintiff.” (FAC ¶8.) “On September 20, 2019, Plaintiff demanded in writing to counsel for Defendant Ipswich to submit an insurance claim to Euler Hermes for the disputed lobster shipments or alternatively Plaintiff would submit the claim.” (FAC ¶10.) “On April 11, 2022, Plaintiff was informed that instead of submitting an insurance claim as previously demanded by Plaintiff, Defendant Ipswich assigned its right to Defendants Indiana and Montana to pursue Plaintiff for payment of the disputed lobster shipments.” (FAC ¶11.)

The FAC asserts the following causes of action: (1) Breach of Contract/Third Party Beneficiary; and (2) Breach of Implied Covenant of Good Faith and Fair Dealing.

Defendants INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, INC. and MONTANY BAIL BONDS, INC. (collectively “Defendants”) specially and generally demur to each cause of action.

Nowhere in the FAC does Plaintiff allege that Plaintiff and Defendants were parties to a contract, other than in the third party beneficiary context. Therefore, in order to maintain a claim arising out of breach of contract, Plaintiff must properly allege that the contract at issue expressly intended by the contracting parties to benefit Plaintiff—a third party.

Plaintiff alleges that he “was the intended third-party beneficiary of the contractual agreements between TAI, Defendant Ipswich and Euler Hermes.” (FAC ¶13.) 

Plaintiff’s conclusory allegations are insufficient to allege the existence of his third party beneficiary status. Therefore, as pled, Plaintiff has no standing to sue for breach of an agreement that he is not a party to. Plaintiff must sufficiently allege the nature of the third party beneficiary contract. (See City of Oakland v. Oakland Raiders (2022) 83 Cal.App.5th 458, 472-473.) 

Because Plaintiff’s third party beneficiary status is essential to the first and second causes of action, the demurrer is SUSTAINED with 20 days leave to amend.