Judge: Upinder S. Kalra, Case: 21STCV31559, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV31559    Hearing Date: July 27, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   July 27, 2022                                     

CASE NAME:            Stephen Grollnek v. Fashion Enya, et al.

CASE NO.:                21STCV31559

DEFENDANT’S DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendants Fashion Enya, et al.

RESPONDING PARTY(S): None as of July 22, 2022.

REQUESTED RELIEF:

1.      An order sustaining the first, third, and fifth causes of action

2.      An order striking the prayer for attorneys’ fees and punitive damages

TENTATIVE RULING:

1.      Demurrer as to the first, third, and fifth causes of action is SUSTAINED, with leave to amend is granted only as to the FIRST cause of action.

2.      Motion to Strike punitive damages is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 25, 2021, plaintiff Stephen Grollnek filed this action against Defendants Fashion Enya, NB Bros. Corp., Trendz, and Pingo Inc., alleging causes of action for:

C/A 1: Breach of Contract

C/A 2: Common Counts (reasonable value)

C/A 3: Fraud

C/A 4: Unjust Enrichment

C/A 5: Intentional Infliction of Emotional Distress

Plaintiff alleges that Defendants promised him permanent employment if he helped the Defendants obtain buyers for their products at larger companies. If Plaintiff performed, he was to receive compensation and permanent employment. However, Plaintiff alleges that he was fired prior to obtaining this employment and bonus.

On October 25, 2021, Defendants filed a demurrer with a motion to strike as to all causes of action as well as punitive damages and attorneys’ fees. The demurrer was SUSTAINED, with leave to amend as to causes of action 1, 3, and 5, and OVERRULED, as to causes of action 2 and 4. The Motion to Strike was GRANTED, with leave to amend.

On February 22, 2022, Plaintiff filed a First Amended Complaint.

This Demurrer with Motion to strike was filed on April 18, 2022. No opposition has been filed as of July 22, 2022.

Procedural Issues:

Plaintiff filed the First Amended Complaint on February 22, 2022. This was mail to Defendants’ counsel via USPS First lass Mail. However, the required Notice of Acknowledgment that is required under CCP 415.30 was not included. Additionally, Defendants contend that none of the Defendants were served directly in accordance with this section. According to Annie Wong’s Declaration, Defendant’s counsel contacted Plaintiff regarding the defective service, but Plaintiff was not responsive. (Dec. Wong ¶ 4-7). Even so, Defendant proceeded with the demurrer on the substance of the FAC.

Service was defective. As the Court determined in Tandy Corp., where the notice and acknowledgement of receipt of summons was not returned, service not completed under CCP § 415.30 (Tandy Corp. v. Superior Court (1981) 117 Cal.App.3d 911, 913). While here, the notice and acknowledgment was never provided, without this service is deemed ineffective. “In order to obtain in personam jurisdiction by a form of constructive service, there must be strict compliance with the requisite statutory procedures.” (Id.).

Meet and Confer:

The Declaration Annie Wong indicates that she attempted to meet and confer with the Plaintiff, first about the service defect and later about the FAC. On April 12, 2022, Defendant telephonically met and conferred, but the issues could not be resolved.

LEGAL STANDARD

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. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:8. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn 147 Cal.App.4th at 747.  

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

ANALYSIS:

1.      Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff.  [Citation.]”  (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

            Defendant contends that the FAC does not sufficiently plead the terms of the oral contract, who breached the contract, or the amount of damages.

            The FAC does describe the terms of an oral contract entered into with a person Plaintiff understood to be the owner of Fashion Enya and the Co-Defendant and generally describes the terms of a guaranteed employment contract, the date of the breach and the time left on the contract. What is lacking is whether the so-called owner of Fashion Enya was contracting on behalf: himself, Fashion Enya, some of the defendants or all of the defendants. Therefore, the Demurrer is SUSTAINED, with leave to amend, as to the first cause of action.

As for the attorneys’ fees, Plaintiff has failed to indicate that these contract contained any reference to attorneys’ fees, as stated in Civil Code § 1717. However, the motion to strike is now moot since the court SUSTAINED this cause of action.

2.      Fraud

The Court sustained the Fraud cause of action in the original complain for failing to allege fraud with the required specificity. The Court granted Defendant leave to amend to cure this defect. The FAC does not plead any new facts. In fact, the FAC asserts the exact same allegations, verbatim, that were previously deemed insufficient.  Accordingly, once again, the demurrer as to the third cause of action is SUSTAINED, but this time, without leave to amend.  

3.      Intentional Infliction of Emotional Distress

The Court sustained this cause of action in the original complaint with leave to amend. Again, Defendant did not allege any new facts in the FAC .Instead, the claim in the FAC is word for word the same as the complaint. Therefore, the demurrer is SUSTAINED, without leave to amend, as to the fifth cause of action.

Motion to Strike:

The Court previously sustained the motion to strike the punitive damages. The FAC does not allege any new facts to support punitive damages. In fact, in regards to the prayer for punitive damages, the FAC is exactly the same as the original complaint. Accordingly, the Motion to Strike is GRANTED, without leave to amend. 

Leave to Amend

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.  (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”].) Here, the court previously granted leave to amend. Plaintiff, did alleged additional facts regarding the breach of contract claim. However, Plaintiff failed to make any attempt to amend the third and fifth cause of action or the prayer for punitive damages. Accordingly, leave to amend is granted only as to the first cause of action.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Demurrer as to the first, third, and fifth causes of action is SUSTAINED, with leave to amend only as to the first cause of action.

Motion to Strike punitive damages is GRANTED, without leave to amend.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: July 27, 2022                                      __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court