Judge: Richard Y. Lee, Case: 30-2022-01286871, Date: 2023-05-25 Tentative Ruling

Demurrer to Complaint

Defendants, Lawrence Brooks and 94 Ways Investment Group LLC (“Defendants”), move for an order sustaining a demurrer, without leave to amend, to the Complaint filed by Plaintiff, Robert Campbell (“Plaintiff”), on the basis that it is uncertain and fails to state facts sufficient to constitute a cause of action for breach of contract.

Defendants assert that the Complaint is uncertain and fails to state facts sufficient to constitute a cause of action for breach of contract against Defendants, as there is no allegation that Plaintiff ever attempted to purchase the Property or that Defendant prevented Plaintiff from purchasing the Property. Defendants also argue that the breach was due to the fact that Plaintiff moved someone into the Property in violation of the Residential Lease Agreement, and that Plaintiff has failed to qualify for the purchase of the Property, and is unable to purchase the Property.

Plaintiff contends that the demurrer should be overruled because Defendants served no notice, served no proof of service, failed to meet and confer, failed to state what causes of action they are demurrer to, failed to format their caption correctly, and assert facts that are no supported by evidence and are outside the four corners of the Complaint. Plaintiff also contends that on the merits, the Complaint is sufficiently pled as it alleges that Plaintiff alleges that Plaintiff performed on all of his contractual obligations.

Initially, while the Court finds that Defendants have not complied with the meet and confer requirements under Code of Civil Procedure section 430.41, the Court will address the merits of the demurrer.

As to any defect concerning notice, that issue is now moot due to the Court’s February 14, 2023 Minute Order continuing the original February 23, 2023 hearing to May 25, 2023. (ROA 41.) The Clerk was ordered to give notice, and the Clerk electronically served notice of the order to Plaintiff and Defendants’ counsel on February 14, 2023. (See ROA 42.)

Additionally, “ ‘[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’ [Citations.]” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Plaintiff has filed an opposition addressing procedural and substantive issues. Thus, any defects or insufficiencies in notice are waived.

The Court overlooks the other procedural and formatting defects, including the lack of a unsigned proof of service as required by Code of Civil Procedure section 1013(b), the failure to specify the date of the filing of the action and the name of the hearing judge California Rules of Court, rule 3.1110(b), as well as the failure to state the name of the party filing the demurrer and the name of the party whose pleading is the subject of demurrer California Rules of Court, rule 3.1320(e), as they have not affected or prejudiced Plaintiff’s ability to oppose the motion.

One procedural defect, however, does affect the demurrer and the ability to oppose. “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc. § 430.60.) In addition, “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint . . ., or to specified causes or action . . . .” (California Rules of Court, Rule 3.1320.) As noted by Plaintiff, the demurrer does not identify what cause of action Defendants are demurring to. However, it appears that Defendants are demurring to the cause of action for breach of contract. Thus, the demurrer is construed as being brought against only the cause of action for breach of contract which is the First Cause of Action.

As to the failure to state facts sufficient to constitute a cause of action, Plaintiff correctly argues that Defendants raise purported facts that are outside the four corners of the Complaint or what can properly be judicially noticed, and that those purported facts are also unsupported by any evidence. A demurrer can only be used to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) Thus, that Plaintiff purportedly moved someone into the Property in violation of the agreement, has failed to qualify for the purchase of the Property, or is otherwise unable to purchase the Property is not subject to consideration for the purposes of the demurrer.

On demurrer, a complaint must be liberally construed. (Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendants appear to assert that the Complaint fails to state a cause of action for breach of contract by attacking the element of Plaintiff’s performance and breach. However, the First Cause of Action alleges, that “Defendant breached the Contract by unilaterally and prematurely reneging his agreement to sell Mr. Campbell [Plaintiff] the Property, informing Mr. Campbell of his intent to sell the Property to a third-party, and transferring the Property to the Sham LLC.” (Complaint, ¶ 26.) It additionally alleges, “. . . Mr. Campbell [Plaintiff] signed the Contract and performed all obligations imposed by it. Any obligations that Mr. Campbell has not yet performed under the Contract are yet due to be performed.” (Complaint, ¶ 32.)

Based on the foregoing allegations which must be accepted as true, the Complaint sufficiently alleges Plaintiff’s performance or non-performance, and Defendants’ breach.

Defendants also appears to demur based on uncertainty. A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 [disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300].) Here, Defendants do not specify how and why the Complaint or the First Cause of Action is uncertain.

Thus, the Court OVERRULES the Demurrer to the Complaint.

Defendants to file an Answer to the Complaint within 20 days of the notice of ruling.

Motion to Strike Demurrer

Plaintiff moves for an order striking Defendants’ demurrer to the Complaint.

Plaintiff asserts identical arguments as set forth in the opposition to the demurrer and argues that the Demurrer to Complaint should be stricken under Code of Civil Procedure section 436(a) and (b).

Under Code of Civil Procedure section 436, a motion to strike is authorized in two situations. The court may strike out “...any irrelevant, false, or improper matter inserted in any pleading” or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Code of Civil Procedure section 436, subdivision (a) does not authorize attacks on entire causes of action or entire pleadings. (Ferrero v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (“Ferrero”).) The purpose is to “authorize the excision of superfluous or abusive allegations.” (Ibid.)

Code of Civil Procedure section 436, subdivision (b) authorizes “the striking of a pleading due to improprieties in its form or the procedures pursuant to which it was filed.” (Ferrero, supra, 161 Cal.App.4th at p. 528.) While Code of Civil Procedure section 436, subdivision (b) “might be broadly construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or its effect.” (Ibid.) This provision challenges a pleading filed in violation of a deadline, court order, or requirement of prior leave of court. (Ibid.)

A “pleading” means a demurrer, answer, complaint, or cross-complaint. (Code Civ. Proc. § 435(a)(2).)

Here, Plaintiff seeks to strike the entire Demurrer to Complaint such that Code of Civil Procedure section 436, subdivision (a) does not apply. As to Code of Civil Procedure section 436, subdivision (b), Plaintiff fails to show that the Demurrer to Complaint was filed in violation of a deadline, court order, or requirement of prior leave of court.

Based on the foregoing, the Court DENIES the motion to strike the Defendants’ Demurrer to Plaintiff’s Complaint.

The Case Management Conference is continued to July 6, 2023 at 1:30 p.m.

Plaintiff to give notice as to both motions.