Judge: Ronald F. Frank, Case: 22TRCV01070, Date: 2023-04-04 Tentative Ruling

Case Number: 22TRCV01070    Hearing Date: April 4, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 April 4, 2023¿¿ 

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CASE NUMBER:                  22TRCV01070

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CASE NAME:                        Persona310 v. City of Hawthorne Business License Dept.

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MOVING PARTY:                Defendant, City of Hawthorne

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RESPONDING PARTY:       Plaintiff, Persona310 (but no opposition filed)

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TRIAL DATE:                        None set¿ 

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MOTION:¿                              (1) Demurrer¿ 

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Tentative Rulings:                  (1) Defendant’s Demurrer is Sustained.  The Court will hear oral argument from Plaintiff as to what she thinks she might be able to further allege before deciding whether one last chance to amend will be granted. 

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I. BACKGROUND¿¿ 

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A. Factual¿¿ 

            On November 2, 2022, Plaintiff Persona310 (“Plaintiff”) filed this action against Defendant, City of Hawthorne (“Defendant”). On December 16, 2022, Plaintiff filed its First Amended Complaint. On February 9, 2023, Plaintiff filed a Second Amended Complaint (“SAC”) alleging causes of action for: Breach of Contract.

            Defendant now demurs to the SAC.   Demurrers on similar grounds were raised as to the original complaint and first amended complaint. 

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B. Procedural¿¿ 

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On March 2, 2023, Defendant, City of Hawthorne filed a demurrer to the SAC.   The proof of service attached to the Demurrer indicates service by both mail and email.  To date, no opposition has been filed.

¿II. MOVING PARTY’S GROUNDS FOR THE DEMURRER¿& MOTION TO STRIKE¿ 

Defendant, City of Hawthorne, demurs to the SAC on the grounds that the City is statutorily immune from liability for the alleged delay or failure to issue a business license pursuant to Government Code section 814, and that no contract was ever formed by virtue of plaintiff’s application for a business license.  Section 814 provides:

A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.

Defendant further demurs to the entire Complaint on the grounds that it claims this Court does not have jurisdiction over its causes of action because it claims that Plaintiff cites to an inapplicable statute, Government Code Section 815.6 – Failure to discharge duty imposed by mandatory enactment – in support of her Complaint, but Defendants argue that the issuance of a business license is not a mandatory duty imposed on the licensing agency. (California Business Professions Code Section 1600; Government Code Section 14.

Defendant also demurs to the entire SAC for failure to state a claim upon which relief may be granted. Lastly, Defendant demurs to Plaintiff’s cause of action for Breach of Contract on the grounds that the SAC does not state sufficient to constitute a cause of action against City for Breach of Contract because the processing of an application does not create a contract. 

¿III. ANALYSIS¿¿ 

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A. Legal Standard  

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A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿ 

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B. Discussion

Breach of Contract

To state a cause of action for breach of contract, Plaintiff must be able to establish “(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.)

If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

Plaintiff’s SAC alleges that Defendant, City of Hawthorne, issued two business licenses to Plaintiff on December 5, 2022. Plaintiff further asserts that the two business licenses issued by Defendant constitute an agreement between Plaintiff and Defendant as licensor and licensee. Plaintiff’s SAC contends that the agreement stipulates the type of agreement which is business, the length of relationship, payments that are due and when, and the extent to which licensing is allowed. Plaintiff notes that in July 2022, Defendant requested payment for Plaintiff two business applications. Plaintiff further notes that per the City of Hawthorne website and business license application forms, Defendant has stated they have a “Streamlined Permit and Approval Process” and that “Hawthorne prides itself in the fact that business licenses, plan checks and building permits are processed on a fast-track system, eliminating weeks and months of processing time” and noting that “the entire Business License approval process should be completed within 6-8 weeks.”

The SAC alleges that Defendant accepted funding for Plaintiff’s two business license applications, that Defendant provided false information during a previous Demurrer hearing stating that a Fire inspection was completed when it was not, Defendant stating there is written information of Fire inspection being completed and it is not and Fire inspection documents not being given to Plaintiff is against Government U.S. Code section 1038, False information, and hoaxes.

Unlike in the FAC, Plaintiff’s SAC purports to allege that the license agreements are contracts. However, the Court does not find that the SAC alleges legal effects of the purported contract, even if Plaintiff attempted to fix the portion of their complaint that did not allege any details of the contract. Again, this Court notes that there is no evidence that City has consented to entering into a contract. Although the Court understands that Plaintiff paid a fee to file the business license application, this evidence is insufficient to establish consideration. As such, there is no mutual assent here. Further, the Court does not find that the time-estimate for completion of the application process establishes an implied-in-fact contract. 

As such, the demurrer on the First Cause of Action for Breach of Contract is sustained.