Judge: Theodore R. Howard, Case: 21-1238046, Date: 2022-09-15 Tentative Ruling

The Demurrer filed by moving parties Joan Obligar Ahyong and John Raymond Banzon Obligar (here “MPs”) is SUSTAINED as to the entire Complaint, with 15 days leave to amend.

The demurrer is directed to all four causes of action (each a “COA”) in the Complaint. Plaintiff filed no Opposition thereto.

The Demurrer is well-taken. COA 1 fails to state whether the contract alleged is written or oral, or what the specific terms of the contract were, and is thus subject to demurrer under C.C.P. § 430.10(e) and (g). 

COA 2 asserts a claim for breach of fiduciary duty but then claims damages based on the “breach of contract.” The nature of both the alleged breach and the claim for damages are thus inadequately pled. COA 3 attempts to state a claim for breach of the implied covenant of good faith and fair dealing. But the scope of conduct prohibited by that covenant is circumscribed by the purposes and express terms of the contract. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373.)

If the allegations do not go beyond a contract breach and seek the same relief already claimed in a contract COA, they are superfluous.  (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)  Here, COA 3 fails to articulate any distinct basis for the claim.

COA 4 purports to state a claim for promissory fraud. But fraud claims must be pled with particularity. ((Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 C3d 197, 216, Small v. Fritz Cos., Inc. (2003) 30 C4th 167, 183.)  Here, the Complaint fails to identify the specific promises allegedly made and is based on nothing more than conclusory assertions.

As each of the COAs in the Complaint is thus deficient as pled, the Demurrer is sustained in full. But as this is a Demurrer to an original pleading and Plaintiff evidently attempted belatedly to amend, the Court grants Plaintiff 15 days leave to amend from the date of service of notice of this ruling. 

Counsel for MPs to give notice.