Judge: Stephen P. Pfahler, Case: 22CHCV00696, Date: 2023-02-14 Tentative Ruling
Case Number: 22CHCV00696 Hearing Date: February 14, 2023 Dept: F49
Dept. F-49
Date: 2-14-23
Case #22CHCV00696
DEMURRER TO THE COMPLAINT
RELIEF
REQUESTED
Demurrer to the Complaint
·
1st
Cause of Action: Breach of Contract
·
2nd
Cause of Action: Common Counts
SUMMARY
OF ACTION
Plaintiffs Umberto
Barragan and Cynthia Flores allege their entry into an agreement on February
13, 2006, with defendant Jaime Barragan, whereby the parties would sell 1428
Hewitt St., and split the proceeds with between Joseph Barragan, Umberto
Barragan, Ruben Barragan (deceased), and Jaime Barragan. Notwithstanding the
agreement, in February 2022, Jaime sold the property for $769,000, and refused
to share any of the net proceeds.
On August 8, 2022,
Plaintiffs filed a complaint for Breach of Contract and Common Counts.
RULING: Sustained with
Leave to Amend.
Request for
Judicial Notice: Granted.
The court can only
take judicial notice of the filing of the pleadings, not the content of the
pleading for the truth of the matter asserted, unless the parties bring a claim
preclusion argument. Regardless, Plaintiff incorporates exhibit two of the
request as an exhibit in the operative complaint.
Defendant Jaime
Barragan brings the subject demurrer to the entire complaint on grounds that
the complaint insufficiently alleges facts in support of the breach of contract,
and common counts causes of action. Specifically, the underlying contracts lack
a basis of consideration. Plaintiffs in opposition challenge the demurrer on
grounds that it relies on extrinsic evidence, and denies any uncertainty in the
complaint. Defendant in reply reiterates the legal challenges to the contract,
and common counts causes of action.
A demurrer is an
objection to a pleading, the grounds for which are apparent from either the
face of the complaint or a matter of which the court may take judicial notice.
(Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a
demurrer is to challenge the sufficiency of a pleading “by raising questions of
law.” (Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of
determining its effect, its allegations must be liberally construed, with a
view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The
court “ ‘ “treat[s] the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law . . . .”
’ ” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525.) In applying these standards, the court liberally
construes the complaint to determine whether a cause of action has been stated.
(Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
“A demurrer for uncertainty is strictly
construed, even where a complaint is in some respects uncertain, because
ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993)
14 Cal.App.4th 612, 616; Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the
complaint contains substantive factual allegations sufficiently apprising
defendant of the issues it is being asked to meet, a demurrer for uncertainty
should be overruled or plaintiff given leave to amend.]
The court notes the entry of a judgment on Joseph
Barragn, et al. v. Jaime Barragan, PC057973, on July 20, 2018 in favor of Jaime
Barragan. The motion presents no argument on grounds of claim preclusion, and
the court therefore declines to consider the existence of the prior judgment or
the content of the request for judicial notice.
1st
Cause of Action: Breach of Contract
Defendant
presents no challenge to the contractual elements themselves, and instead
specifically challenges the element of consideration. Plaintiffs only focus on
the contractual elements, and offer no specific argument as to consideration.
“To state a cause of
action for breach of contract, [a plaintiff] must plead the contract, his performance
of the contract or excuse for nonperformance, [defendant’s] breach and the
resulting damage. (Citation.) Further, the complaint must indicate on
its face whether the contract is written, oral, or implied by conduct.
(Citation.)” (Otworth v. Southern Pac.
Transportation Co. (1985) 166 Cal.App.3d 452, 458–59.) In examining a
breach of contract claim, the court is required to examine the terms, or at
least the legal effect of the contract. (Blank
v. Kirwan, supra, 39 Cal.3d at p.
318 [“we give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context”]; Otworth
v. Southern Pac. Transportation Co., supra,
166 Cal.App.3d at p. 459 [“If the action is based on an 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 instrument must be attached and incorporated
by reference”]; Construction Protective
Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189,
198–199 [“In an action based on a written contract, a plaintiff may plead
the legal effect of the contract rather than its precise language”].)
The existence of the
contract remains undisputed. The court finds the elements properly pled. The
court however considers whether the contract is valid and enforceable, as pled.
The
complaint itself relies on a previously filed declaration of Jaime Barragan
acknowledging a verbal agreement with Umberto regarding the agreement to split
the proceeds. The agreement was made as part of the wishes of the parties’
sister, Henrietta Barragan. It remains unclear why Plaintiff brings the action
as a breach of contract claim in a civil court rather than the probate court,
but the court can only address the applicable law presented in this case.
“‘An
informal promise without consideration, in any of the senses of that term,
creates no duty and is not enforceable. But this statement is not correct if we
limit the definition of consideration so as to require it to be a bargained-for
equivalent given in exchange for the promise. There are many informal promises
that are enforceable, even though there is no consideration as thus defined. In
every case, however, an informal promise is never enforceable if it stands
utterly alone. To be enforceable, there must be some accompanying factor of the
past (generally called “past consideration”), or there must be some subsequent
changes of position in reliance on the promise. Without any such accompanying
factor, an informal promise to make a gift is not binding.'”
(Haase v. Cardoza (1958) 165 Cal.App.2d 35, 38.)
In
terms of the agreement itself, nothing in the plain language of the complaint
establishes a basis of consideration. The mere existence of a promise
insufficiently supports the claim without more facts and/or law in support for
purposes of the subject demurrer. (Ibid.)
2nd
Cause of Action: Common Counts
Defendant
challenges the common count claim on grounds that the complaint fails to allege
a basis of indebtedness, or receipt of funds intended for Plaintiff. (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) A common count
cause of action withstands general and special demurrer if the elements are
stated: a statement of indebtedness, consideration, and nonpayment. (Farmers Insurance Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460.) Plaintiffs counter that a claim may
be stated on grounds of equity. (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586.)
The court finds the
operative complaint lacks the required elements for common counts. The lack of said
elements in support will not support an non-pled alternative finding of support
in equity. To the extent Plaintiffs seek to allege a claim in quantum meruit,
Plaintiffs may request leave to amend.
The
demurrer is sustained with leave to amend. Plaintiffs are granted leave to file
breach of contract and common counts, but may also add a quantum meruit cause
of action, if requested at the hearing. Plaintiffs have 30 days to amend.
Case
Management Conference set for March 23, 2023.
Defendant
to give notice.