Judge: Timothy B. Taylor, Case: 37-2022-00035597-CL-CO-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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CASE TITLE: CASE TYPE:

Civil - Limited  Contract - Other Demurrer / Motion to Strike 37-2022-00035597-CL-CO-CTL GALLARDO VS AREYALO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/27/2023

Tentative Ruling on Demurrer to Complaint Gallardo v. Arevalo, Case No. 2022-35597 Sept. 8, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a contract action involving the 'Dolce Cafe/Fresh Eatery' in Chula Vista. The parties were co-venturers in that enterprise, but 'disagreements' arose in April of 2022 culminating in defendant's agreement in May to buy plaintiff out and 'remain as the only partner.' Plaintiff, who is representing herself, filed a Judicial Council form complaint in September of 2022.

Presently, defendant generally and specially demurs to the complaint on several grounds. ROA 26, 29.

There is no opposition.* The case is also set for a continued CMC. ROA 27-28.

2. Applicable Standards.

A. A general demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ.

Proc. § 452.

B. Code of Civil Procedure section 430.10(f) permits a defendant to demur to a complaint that is uncertain. However, demurrers for uncertainty are disfavored and therefore strictly construed. Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.

C. '[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting Calendar No.: Event ID:  TENTATIVE RULINGS

2990630  35 CASE NUMBER: CASE TITLE:  GALLARDO VS AREYALO [IMAGED]  37-2022-00035597-CL-CO-CTL damages to the plaintiff.' Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.

3. Discussion and Ruling.

The hearing on the demurrer is taken off calendar for defective notice. The notice of demurrer does not set forth the correct date or time of today's hearing. Instead, it lists a hearing date of July 21, 2023. See CRC 3.1110(b)(1); see also Code Civ. Proc. § 1010. Plaintiff has not opposed the demurrer. Thus, objections to defects in the notice have not been waived.

4. CMC.

The court will set the case for trial.

__________________________ *While the absence of an opposition is sub-optimal, it is not surprising considering plaintiff's pro per status. What is surprising in defense counsel's use of a caption from a federal criminal case (United States v. Vargas-Valenzuela) in his moving papers.

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2990630  35