Judge: Shirley K. Watkins, Case: 21VECV01659, Date: 2022-09-06 Tentative Ruling

Case Number: 21VECV01659    Hearing Date: September 6, 2022    Dept: T

            [TENTATIVE] ORDER:  Cross-Defendant Globecast America Incorporated’s Demurrer to the Cross-Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Introduction

Cross-Defendant Globecast America Incorporated (GAI) demurs to Cross-Complainant Treasure of Presence Foundation, Inc. (TOP) Cross-Complaint (XC).  GAI places into issue the first cause of action (COA) for declaratory relief, the second COA for breach of contract, and the third COA for intentional misrepresentation.

The opposition to the demurrer was due August 23, 2022.  TOP has not filed an opposition. 

            Discussion 

            GAI’s demurrer to the second COA argues that the alleged November 2021 breach is alleged to be beyond the term of the contract.  The contract term allegedly ended June 2021 and even with the alleged two months free, the terms would have ended August 2021.  GAI shows that the allegations in the second COA are uncertain because the alleged breach appears to have occurred after termination of the contract. 

            GAI then argues that the COA failed to attach the written contract or allege the provisions verbatim.  However, a third way of pleading the COA is to lead the terms by their legal effect.  TOP’s allegation that GAI failed to provide two months free broadcasting is sufficient to plead brech of contract by way of legal effect.  GAI’s arguments regarding the specific terms of the contract are not required to plead because TOP alleges the relevant provision that was breached.

            The demurrer to the second COA is SUSTAINED WITH LEAVE. 

            GAI argues that the first COA for declaratory relief fails to allege a present and actual controversy.  GAI asserts that TOP’s claims are to redress past wrongs.  TOP’s allegation that it is owed two months of broadcast for free is a past wrong because the alleged contract expired in or about June 2021 and that there is no ongoing contract between the parties.

            The demurrer to the first COA is SUSTAINED WITH LEAVE.

            GAI asserts that the fraud COA fails to allege specific facts showing the name of the person that made the representation, how it was made, who was present when the representations were made and where it was made.  The pleading defects make the fraud COA insufficiently pled.

            GAI also asserts that TOP fails to allege rescission of the contract upon discovery of the fraud.  The argument, however, is not persuasive because the fraud COA is not seeking the relief of rescission. 

            The demurrer to the third COA is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. 

            IT IS SO ORDERED, ____________________ TO GIVE NOTICE.