Judge Thomas D. Long, Case Number: 23STCV24825, Date: 2024-03-07 Tentative Ruling

On December 13, 2023, Plaintiff Kevin Garlington filed the operative First Amended Complaint (“FAC”) against Defendants Tammy Y. Wade, Tammy Y. Wade for Serenity Inclusive Family Services LLC, Serenity Inclusive Family Service LLC, Crystal Diane Adams, Tranika Yvette Hickman, South Central Los Angeles Regional Center for Persons with Dev. Disabilities, Inc., Dexter Henderson, Cherylle Mallinson, Isaac Curtis, Monica Mahon, Jetta Turner, Evelyn Galindo, Janice Bloomer Buchanan, Janet Talford, Pamela Brownridge, Tameko Brownridge, Karen Washington, Eugene Washington, Dionne Borden, and Alexandra Sanders (collectively “Defendants”) alleging causes of action for (1) fraud, (2) breach of contract, (3) intentional tort, and (4) general negligence.

On January 16, 2024, Defendant South Central Los Angeles Regional Center for Developmentally Disabled Persons, Inc. (“SCLARC”) filed and served a demurrer and motion to strike as to the FAC. The demurrer and motion to strike are unopposed.

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.) A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading sought to be demurred to, in person or telephonically or by video conference, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) An insufficient meet and confer process concerning a demurrer is not grounds to sustain or overrule a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) A motion to strike has similar meet and confer requirements. (Code Civ. Proc., § 435.5.)

Counsel for Defendant SCLARC, Michael R. Mauge (“Mauge”), declares that on June 10, 2024, he spoke with Plaintiff telephonically and no agreement was reached on the issues underlying Defendant SCLARC’s demurrer and motion to strike. (Mauge Decl. ¶ 9.) The Court finds that the meet and confer requirement has been met.

Initially, the Court will address the argument of Defendant SCLARC that the FAC is vague and uncertain. The Court rejects such contention as the alleged acts of Defendant SCLARC are sufficiently identified in the FAC. While the FAC may not be as clear and cohesive as Defendant SCLARC would like, the FAC is clear enough for Defendant SCLARC to ascertain the claims asserted against Defendant SCLARC. Thus, the Court overrules the demurrer of Defendant SCLARC on the grounds of uncertainty.

The Court notes, as a tertiary issue, that the demurrer is only brought on behalf of Defendant SCLARC yet makes arguments as to Defendants Dexter Henderson, Cherylle Mallinson, Isaac Curtis, Monica Mahon, Jetta Turner, and Evelyn Galindo. The Court will only analyze whether the FAC states a sufficient cause of action against Defendant SCLARC only since the other defendants did not file a demurrer as to the FAC. If another defendant wished to challenge the sufficiency of the FAC, then such defendant should have joined the demurrer or otherwise filed a demurrer to the FAC.

Defendant SCLARC argues that Plaintiff’s cause of action for breach of contract fails. (Demurrer at pp. 8-9.)

“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, citation omitted.)

The FAC alleges that, on February 4, 2019, Plaintiff, Original Serenity, and Tammy Y. Wade entered into a contract. (FAC ¶ 18; Exhibit A.) On or about July 10, 2023, Defendant Tammy Y. Wade defaulted on the LLC Operating Agreement by conducting a conversion of the Original Serenity. (FAC ¶ 18.) The FAC alleges that Defendant Tammy Y. Wade and Defendant SCLARC are withholding rights to the company, interest thereto, and even profits from Plaintiff. (FAC ¶ 18.) Plaintiff alleges that Defendant Tammy Y. Wade also organized a new LLC, with a similar name to the Original Serenity, against and without Plaintiff. (FAC ¶ 18.)

Although purporting to attach the written contract thereto that is the subject of the second cause of action in the FAC, the Court notes that Plaintiff did not attach a written contract to the FAC. The purported written contract is attached to the initial complaint in this action and is therefore before the Court. The Court finds that the second cause of action for breach of contract does not allege that Defendant SCLARC was a party to the LLC Operating Agreement. Thus, based on the allegations of the FAC, there is no contract between Plaintiff and Defendant SCLARC. A review of the Operating Agreement shows that Defendant SCLARC is not a signatory to such an agreement. Plaintiff has therefore failed to state a cause of action for breach of contract against Defendant SCLARC.

Defendant SCLARC contends that the third cause of action fails. (Demurrer at pp. 9-10.)

Pursuant to the third cause of action, the FAC alleges that Defendant SCLARC “intentionally collaborated and intentionally assisted in the conversion of Original Serenity and intentionally assisted in breach of the LLC Operating Agreement between Defendant Wade and the Plaintiff.” (FAC ¶ 19.) Based on the allegations of the third cause of action, it appears that Plaintiff is alleging both conversion and intentional interference with contractual relations causes of action against Defendant SCLARC. The third cause of action is labeled “Intentional Tort.”

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

The elements of a cause of action for intentional interference with contractual relations are “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289.)

The FAC does not allege a cause of action for conversion against Defendant SCLARC as there is no allegation that Plaintiff owned or had a right to property, or how Defendant SCLARC wrongfully disposed of any of Plaintiff’s property rights. Plaintiff has merely alleged conversion without any sufficient facts in support thereof.

The FAC also does not state a claim for intentional interference for contractual relations against Defendant SCLARC. Plaintiff does not allege a valid contract, Defendant SCLARC’s knowledge of such a contract, or what acts Defendant SCLARC took to disrupt a contractual relationship.

As such, the third cause of action does not state cause of action for intentional tort against Defendant SCLARC.

Defendant SCLARC contends that Plaintiff’s claim for general negligence fails. (Demurrer at pp. 10-11.)

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671, citation omitted.)

The FAC alleges that Defendant SCLARC “ignored whistleblower complaints and inquiries . . . by the Plaintiff, alerting them of fraudulent federal billing taking place against all consumers, who cannot help themselves in this particular regard, served by their organization, whose services are under their coordination of California Title 17 guidance, via direct e-mail and direct telephone calls to representatives of the organization.” (FAC ¶ 20.)

The Court finds that the fourth cause of action for general negligence is insufficiently alleged. Plaintiff has failed to allege the elements of duty, breach, and causation. As such, Plaintiff has not set forth sufficient facts to constitute a cause of action against Defendant SCLARC for negligence.

The demurrer of Defendant SCLARC to the second, third, and fourth causes of action in the FAC is SUSTAINED with 20 days’ leave to amend. While Plaintiff is representing himself in pro per, a pro per litigant is held to the same standards as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Thus, if and when a Second Amended Complaint is filed, the Court orders Plaintiff to set forth the causes of action and facts therein in a clear and concise manner and label such causes of action.

The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)

Defendant SCLARC moves to strike Plaintiff’s claim for attorneys’ fees from the FAC as well as Plaintiffs’ claim for permanent and mandatory injunctions against Defendant SCLARC.

Attorneys’ fees are allowed only when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A)-(C).) Here, the FAC does not allege any basis for attorneys’ fees pursuant to contract, statute, or law.

“To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1298.)

Here, the FAC does not allege that there is an inadequate remedy at law to warrant an injunction against Defendant SCLARC. Moreover, only the second through fourth causes of action in the FAC are asserted against Defendant SCLARC. As indicated above pursuant to the Court’s discussion of the demurrer, such causes of action are insufficiently alleged against Defendant SCLARC. Thus, Plaintiff lacks a valid cause of action upon which to base a request for a permanent injunction against Defendant SCLARC.

Additionally, given that the demurrer and motion to strike are both unopposed, there is an inference they are meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court