Ebasco Trading Corporation v. Canvas Specialty, Inc., et al.

CROSS-DEFENDANT PAC-VAN, INC’S DEMURRER TO CROSS-COMPLAINANT GREGORY NAIMAN’S THIRD-PARTY COMPLAINT

 

MOVING PARTY: Cross-Defendant Pac-Van, Inc.

RESPONDING PARTY(S): Cross-Complainant Gregory Naiman  (non-opposition)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a contract dispute.  Plaintiff Ebasco Trading Corporation (“Ebasco”) was to replace an outdoor canopy at the U.S. Embassy in Liberia.  (SAC ¶ 16.)  In September 2019, Plaintiff alleges it contracted with Defendants to provide the canopy panels for the Embassy, to be shipped within 45 days. (Id. ¶ 18.)  Plaintiff further alleges Defendants have failed to ship or provide the goods as agreed and have not issued a refund.  (Id. ¶ 29.)

Plaintiff brings eight causes of action against Defendants for: (1) Breach of Contract, (2) Promissory Estoppel, (3) Conversion, (4) Negligent Misrepresentation, (5) Intentional Misrepresentation, (6) Breach of Covenant of Good Faith and Fair Dealing, (7) Unjust Enrichment, and (8) Fraudulent Transfer.

Defendant Naiman has filed a “Third-Party Complaint”  against PAC Van, Inc. and Frank Trinh asserting causes of action for conversion and breach of contract. Defendant PAC-Van, Inc., now demurs to and moves to strike portions of the Third-Party Complaint.  Naiman filed a notice of non-opposition.

TENTATIVE RULING:

Cross-Defendant’s Demurrer to the Third-Party Complaint is SUSTAINED, with leave to amend. Consistent with the parties’ communications, Cross-Complainant is ordered to file a First Amended Cross-Complaint within 15 days of this ruling.  

Cross-Defendant’s Motion to Strike is MOOT.

Moving party to give notice, unless waived.  

DISCUSSION:

Demurrer

I. Meet and Confer

The Declaration of Michael S. Sutton reflects that the meet and confer requirement was satisfied.  (CCP § 430.41.)

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

III. Analysis

Cross-Defendant PAC-Van, Inc., demurs to each cause of action in Gregory Naiman’s Third-Party Complaint, contending it does not state facts sufficient against PAC-Van, Inc.

Naiman, the responding party, filed a “Notice of Non-Opposition” to the demurrer and motion to strike on January 25, 2023.  That Non-Opposition states that Naiman “does not intend to oppose” the motions as the parties “have agreed that Greg Naiman will have fifteen (15) calendar days after the currently scheduled hearing on the Demurrer and Motion to Strike of Third-Party Defendant Pac Van to amend his Third Party-Complaint as to Pac Van.” (Non-Opp.)

Accordingly, as the motion is unopposed, Cross-Defendant’s Demurrer to the Third-Party Complaint is SUSTAINED, with leave to amend. Consistent with the parties’ communications, First Amended Cross-Complainant is ordered to file an Amended Cross-Complaint within 15 days of this ruling.  

Motion to Strike

As the Demurrer is sustained in full, the Motion to Strike is MOOT.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated:   February 8, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

FN 1 - Frankly, this Court is unaware of the existence of a “Third Party Complaint” or a “Third Party Plaintiff” or a “Third Party Defendant” under California law.  This Court assumes that the action filed by “Third Party Plaintiff or Cross-complainant” Greg Naiman is simply a Cross-Complaint, authorized under CCP §428.10 (b).  [“A party against whom a cause of action has been asserted in an complaint or cross-complaint may file a cross-complaint . . . against a person alleged to be liable thereon, whether or not such person is already a party to the action . . .”) (Emphasis added.)  His counsel are admonished to utilize the correct terms henceforth.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.