Judge: Thomas D. Long, Case: 22STCV07543, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV07543    Hearing Date: February 9, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On March 2, 2022, Plaintiff David Carranza filed this action against Defendants Mohammad Ali Zareh DDS, Inc. and Charles Chan-Eung Park.

On September 21, 2022, Mohammad Ali Zareh DDS, Inc. (“Defendant”) filed a demurrer.  Plaintiff filed a late opposition.

On December 27, 2022, Plaintiff filed a motion for leave to amend the complaint.

DEMURRER

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

The complaint uses a Judicial Council form for an action based in contract.  “The Judicial Council pleading forms have simplified the art of pleading, and have made the task of drafting much easier.  Nevertheless, in some cases more is required than merely placing an ‘X’ in a box.  [Citation.]  ‘Adoption of Official Forms for the most common civil actions has not changed the statutory requirement that the complaint contain “facts constituting the cause of action.”’  [Citation.]  Thus, in order to be demurrer-proof, a form ‘complaint must contain whatever ultimate facts are essential to state a cause of action under existing statutes or case law.’  [Citation.]”  (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 (Dept. of Transportation).)

The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.  (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)  “A written contract may be pleaded by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.”  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)  To plead a contract by its legal effect, a plaintiff must “allege the substance of its relevant terms.  This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.”  (Ibid.)

Item 8 on page 2 of the form complaint states, “The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached).”  Plaintiff checked the boxes for Breach of Contract and Common Counts, but no additional pages are attached.  Plaintiff prays for damages, interest, and “cost for services and products never rendered.”  The complaint contains no facts constituting any causes of action.  (See Code Civ. Proc., § 425.10, subd. (a)(1); see also Dept. of Transportation, supra, 5 Cal.App.4th at p. 1484 [ultimate facts are still required when using a Judicial Council form complaint].)

In opposition, Plaintiff cites statements from his September 26, 2022 Case Management Statement.  (Opposition at pp. 3-4.)  But none of these factual allegations are in the complaint.

The demurrer is SUSTAINED with 20 days’ leave to amend the claims for breach of contract and common counts.

MOTION FOR LEAVE TO AMEND

The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading.  (Code Civ. Proc., § 473, subd. (a)(1).)  A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located.  (California Rules of Court, rule 3.1324(a).)  The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.  (California Rules of Court, rule 3.1324(b).)

Plaintiff’s declaration states, “The purpose and effect of the prosed amendments are to incorporate additional facts into this lawsuit in order to further justice.”  (Carranza Decl. ¶ 3.)  The declaration does not state why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.  The motion identifies the changes as “(1) additional cause of action of Intentional Infliction of Emotional Distress, (2) addition of any court fees and costs to be included in the judgment against Defendants, and (3) addition of the cost for services and products never rendered in the amount of $33,000.”  (Motion at p. 3.)  The motion also explains, “Upon receiving additional help through various self-help centers, Plaintiff David Carranza concluded that additional causes of action and requests for judgment should be added to the case.”  (Motion at p. 4.)  Plaintiff submits a copy of his proposed amended complaint.

Plaintiff’s proposed amended complaint also uses a Judicial Council form complaint.  Item 8 on page 2 of the form complaint states, “The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached).”  Plaintiff checked the boxes for Breach of Contract, Common Counts, and “Other,” specifying “Intentional infliction of severe emotional distress.”  No additional pages are attached, and the proposed amended complaint contains no facts constituting any causes of action.  Accordingly, the amended complaint would be subject to a defendant’s demurrer or the Court’s striking of it under Code of Civil Procedure section 436, subdivision (b), for the same reasons that the Court concurrently sustains the demurrer to the original complaint.  Because the proposed amendment is wholly devoid of any facts, the Court therefore exercises its discretion to deny the amendment.

The motion for leave to amend is DENIED.

ORDER TO SHOW CAUSE

A plaintiff must serve the defendant with the summons and complaint and file proofs of service within 60 days after filing the complaint.  (California Rules of Court, rule 3.110(b).)

The summons issued on July 7, 2022.  On July 8, 2022, Plaintiff filed a Proof of Service of Summons, reflecting service of only the summons on Mohammad Zareh by mail and acknowledgement of receipt of service.  No proof of service of the summons and complaint has been filed for Defendant Charles Chan-Eung Park, and he has not appeared in this action.

Therefore, an Order to Show Cause Re: Failure to Serve Defendant Charles Chan-Eung Park is scheduled for 05/09/2023 (May 9, 2023) at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.

Plaintiff must serve Defendant Charles Chan-Eung Park with the summons and complaint (or the amended complaint, if amending pursuant to the Court granting leave to amend following demurrer) and file a proof of service by that date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 9th day of February 2023