Judge Olivia Rosales, Case 22NWCV00333 2022-10-11 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV00333, Date: 2022-10-11 Tentative Ruling

Case Number: 22NWCV00333 Hearing Date: October 11, 2022 Dept: SEC

GARCIA v. SHEEHAN

CASE NO.: 22NWCV00333

HEARING: 10/11/22 @ 9:30 AM

Defendant Sheehan’s demurrer to complaint is OVERRULED. Defendant is ORDERED to file and serve an answer within 10 days.

Opposing Party to give NOTICE.

Defendant Sheehan demurs to the 1^st cause of action on the ground that they fail to state facts sufficient to constitute a cause of action.

The Complaint alleges that on or about May 1, 2019, Defendant Anne Sheehan entered into a written Payment Promissory Note with Plaintiff Adam Garcia whereby Defendant owed Plaintiff $170,000.00. (Complaint, ¶ 4.) Plaintiff Annie Garcia and Adam Garcia recently concluded a dissolution of marriage (Case No. 20STFL04060), whereby Plaintiff was awarded 50% of any payments collected after March 1, 2020, pursuant to the Promissory Note signed by Anne Sheehan. (Complaint, ¶ 5; Ex. A.) Defendant Sheehan has failed to make monthly payments due and owing under the Note. (Id., ¶ 7.) Based thereon, the Complaint asserts a single cause of action for Breach of Contract.

1^st CAUSE OF ACTION

BREACH OF CONTRACT: The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct. (CCP § 430.10(g).) To plead a written contract, a plaintiff must do one of the following: (1) set forth the contract in haec verba; or (2) plead the contract’s legal effect by alleging the substance of its relevant terms. (4 Witkin, California Procedure 4th Ed., 479-481.) In order to plead an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms. (Id. at 483.)

Defendant demurs to the Complaint on the ground that Plaintiff is not a party to the Promissory Note. However, a promissory note is a negotiable instrument which the borrower "must anticipate" can and might be transferred to another creditor. An assignment merely substitutes one creditor for another, without changing Sheehan's obligations under the note. (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal. App. 5th 23, 25.)

Here, the Family Court assigned Plaintiff a half of the interest in the proceeds of the promissory note. She stepped into the shoes of Adam Garcia with all the rights and obligations that came as the holder of the promissory note. Accordingly, the demurrer is OVERRULED. Defendant is ORDERED to file and serve an answer within 10 days.

The Reply indicates that Plaintiff passed away on June 10, 2022. As such, the court is inclined to set an OSC re Stay pending the substitution of Plaintiff’s Personal Representative. The court will hear from the parties.