Judge: Robert C. Longstreth, Case: 37-2023-00010293-CU-BC-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00010293-CU-BC-CTL CID VS FORTUNO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/30/2023

Defendants' Demurrer to Plaintiff's Complaint (ROA 12) is OVERRULED IN PART and SUSTAINED IN PART, with leave to amend as to the second cause of action only.

As to the first cause of action for breach of oral contract, the demurrer is overruled. Defendants assert this cause of action is vague. The court construes this as a demurrer on the grounds the cause of action is uncertain. (Code Civ. Proc. § 430.10(f).) However, the Complaint alleges both the facts and the essential elements of a claim for breach of oral contract. (Compl. ¶¶ 7-16.) Any uncertainties can be clarified during the discovery process.

As to the second cause of action for breach of written contract, the demurrer is overruled. Defendants assert the contract is not attached to the Complaint and that the terms are not sufficiently alleged in the pleading. The court construes this as a demurrer on the grounds the cause of action fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).) However, the Complaint sufficiently describes the essential terms of the alleged contract. (Compl. ¶¶ 7-13, 18-20.) Again, any uncertainties can be clarified during the discovery process. The court cannot (and did not) consider Defendants' representation 'on information and belief' that there was no written contract, as a demurrer is properly sustained only for a defect on the face of a pleading or on matters upon which the court may take judicial notice. (Code Civ. Proc. § 430.30(a).) Likewise, the court cannot (and did not) consider the extrinsic evidence Plaintiff improperly submitted with her opposition.

As to the third cause of action for breach of the implied covenant of good faith and fair dealing, the demurrer is sustained. (Code Civ. Proc. § 430.10(e).) Here, Plaintiff's claim for breach of the implied covenant of good faith and fair dealing is indistinguishable from her breach of contract claims. Plaintiff has not alleged facts sufficient to support recovery in tort as well. Merely alleging that Defendant did not act in good faith in breaching the contract is far from sufficient. Although Plaintiff does not suggest how the pleading could be amended to state a claim for the implied covenant of good faith and fair dealing, the court will grant leave to amend.

As to the fifth cause of action for common counts: goods and services rendered, the demurrer is overruled. Defendants assert the claim fails because money lent by Plaintiff does not constitute goods and services. (Code Civ. Proc. § 430.10(e).) Defendant cites no legal authority expressly and specifically holding that alleging money lent does not state this claim, and in any event Plaintiff alleges that she performed services for Defendants. (Compl. ¶¶33-34.) Accordingly, Defendants have not demonstrated the claim is subject to demurrer.

Calendar No.: Event ID:  TENTATIVE RULINGS

3041381  8 CASE NUMBER: CASE TITLE:  CID VS FORTUNO [IMAGED]  37-2023-00010293-CU-BC-CTL As to the fourth and sixth causes of action, the demurrer is overruled on the grounds that it is moot. The court considered this argument in ruling on Defendants' motion to strike.

As to the seventh cause of action for account stated, the demurrer is overruled. Defendants assert the previous transactions between the parties that would establish the relationship of the parties as debtor and creditor are not alleged. (Code Civ. Proc. § 430.10(e); Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) However, the Complaint alleges such facts sufficient to survive demurrer.

(Compl. ¶¶ 9-13, 42-44.) As to the eighth cause of action for declaratory relief, the demurrer is overruled. Defendants assert this cause of action is not proper because declaratory relief operates prospectively and cannot redress past harms. (Code Civ. Proc. § 430.10(e).) However, Plaintiff alleges an active controversy, which overcomes the demurrer. (Compl. ¶ 89.) Defendants' purported demurrer to the entire Complaint is overruled. In order to object to the entire pleading, Defendants must demonstrate the entire pleading is defective in some way. Here, Defendants have challenged only certain aspects of it.

Plaintiff may file a First Amended Complaint on or before May 17, 2024.

Defendants' Motion to Strike Portions of the Complaint (ROA 14) is GRANTED IN PART without leave to amend and DENIED IN PART.

At the outset, Defendants assert the law 'seems to be split' on the issue of whether prayers for damages are properly challenged by way of a demurrer or a motion to strike. The court believes, however, that the law is in fact settled on this matter. 'The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.' (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385; see also Weil, et al., Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2023) ¶ 7:42.1, 'A motion to strike, not a general demurrer, is the procedure to attack an improper claim for punitive damages or other remedy demanded in the complaint. Reason: A general demurrer challenges only the sufficiency of the cause of action pleaded, and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action.') Defendants' request to strike Plaintiff's prayer for attorney fees and for a 2% penalty is granted. Plaintiff asserts in its opposition that attorney fees and the penalty are recoverable pursuant to Business and Professions Code section 7108.8. There is no such section of the Code. While Plaintiff's Complaint does refer to section 7108.5 (Compl. at 7:8-10), this section pertains to payments required to be made by a prime contractor to subcontractor. No facts are alleged that suggest that such a relationship between the parties exists. Rather, Plaintiff alleges she loaned Defendants $89,000.00 'to help them with their home healthcare business.' (Id. ¶ 7.) Alternatively, Plaintiff asserts she can recover a 2% penalty pursuant to Civil Code section 8800, which pertains to progress payments to be made by an owner to a contractor. Again, no facts are alleged that suggest any such relationship between the parties.

Plaintiff cites no other legal authority for recover of either attorney fees or the civil penalty, nor has she otherwise identified how amendment might cure the defective prayers for attorney fees or the penalty.

Accordingly, leave to amend is denied.

Defendants also seek to strike both the fourth and sixth causes of action on the grounds they are duplicative of each other. Plaintiff asserts she is entitled to pursue both claims. The fourth cause of action for 'quantum meruit – unjust enrichment' and the sixth cause of actions for 'restitution from transferee based on quasi-contract or unjust enrichment' are the same claim – quantum meruit being a form of implied or quasi-contract – and both causes of action seek exactly the same relief. The fourth cause of action is more specifically pled; accordingly, the court strikes the sixth cause of action as Calendar No.: Event ID:  TENTATIVE RULINGS

3041381  8 CASE NUMBER: CASE TITLE:  CID VS FORTUNO [IMAGED]  37-2023-00010293-CU-BC-CTL duplicative without leave to amend. The fourth cause of action is not stricken.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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