Judge: Thomas Falls, Case: 22PSCV00085, Date: 2023-01-23 Tentative Ruling

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Case Number: 22PSCV00085    Hearing Date: January 23, 2023    Dept: O

HEARING DATE:                 Monday, January 23, 2023

Defendants Lakeside Property’s and Jason Abboud’s Demurrer (collectively, “Defendants”)

Responding Party: Unopposed as of 1/12/23 (due nine court days before the hearing [Monday, 01/09/23][1]

Tentative Ruling

Defendants Lakeside Property’s and Jason Abboud’s Demurrer is SUSTAINED WITHOUT leave to amend.

Background

This pertains to a purported breach of a lease agreement. Plaintiffs KATHLEEN GRAHAM and GINO GAUDARRAMA (“Plaintiff Gino”) (collectively, “Plaintiffs”) allege the following against Defendants JASON ABBOUD, SECOND STREET PROMENADE, LLC, a California entity, THE ABBOUD FAMILY TRUST, LAKESIDE PROPERTY and DOES 1 to 5 (collectively, “Defendants”): In May 2021, the parties entered into a 2-year lease agreement for a work/live unit. The property was then “red tagged” for building code violations, which led Plaintiffs to cease their work operations (as Kitty’s Bakery) and vacate the property.[2]

On January 26, 2022, Plaintiffs filed suit against Defendants for breach of contract.

On May 2, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) against Defendants.

On July 6, 2022, Defendants Second Street Promenade, LLC, Lakeside Property and Jason Abboud, as an individual filed a Demurrer and On July 7, 2022, Defendant Jason Abboud, Trustee of The Abboud Family Trust, filed a Cross-Complaint against Plaintiffs for Breach of Contract because Plaintiffs “vacat[ed] the Premises leaving a balance owed for rent and rental charges in the amount of $10,000.00.”

On September 1, 2022, the court sustained the demurrer with leave to amend (there was no opposition to the demurrer filed by Plaintiffs nor an appearance at the hearing by Plaintiffs).

On September 12, 2022, Plaintiffs filed their respective Answers to the cross-complaint. That same day, Plaintiffs filed a Second Amended Complaint (“SAC”), which was asserting the same cause of action against same Defendants.

On November 21, 2022, Defendants filed the instant Demurrer.

To date, as of Tuesday, as of 1/12/23 at 9 AM, no Opposition has been received.  

Legal Standard

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)   

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “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.)  A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond.  (Code Civ. Proc., § 430.10, subd. (f).) 

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)  

Discussion

This demurrer is made on identical grounds as the previous demurrer.

Defendants demur on the grounds that the contract was entered between Plaintiffs and the landlord, The Abboud Family Trust. Thus, as the demurring Defendants are not named as parties to the contract, Plaintiffs cannot sustain a cause of action for breach of contract against them.

Indeed, the general rule in California is that “only a signatory to a contract may be liable for any breach.”  (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 452.) A breach of contract cannot be made the basis of an action for damages against defendants who did not execute it and who did nothing to assume its obligations.  (Gold v. Gibbons (1960) 178 Cal.App.2d 517, 519) (emphasis added).

Here, a review of the agreement provides that the Lease Agreement is between Plaintiffs/Tenants, Gino Guadarrama and Kathleen A. Graham DBA Kitty’s Café and Bakery and the Landlord/The Abboud Family Trust.

Therefore, absent a contractual relationship between the demurring Defendants—Lakeside Property and Jason Abboud—there is no viable cause of action for breach of contract.

Conclusion

Based thereon, the demurrer is SUSTAINED. As for leave to amend, the court denies leave to amend for the following three reasons: (1) a plaintiff is to request leave to amend, but Plaintiffs have filed no opposition to make such a request; (2) the court previously granted leave to amend, but Plaintiffs made no changes, indicating that there is no reasonable possibility of curing the defect; and (3) Plaintiffs have filed no opposition to provide an argument that they have stated a cause of action for breach of contract.[3] Therefore, the demurrer is sustained without leave to amend.