Judge: Virginia Keeny, Case: 24STCV25293, Date: 2025-03-25 Tentative Ruling
Case Number: 24STCV25293 Hearing Date: March 25, 2025 Dept: 45
ALEXANDRA IMELDA RODRIGUEZ V. ANDREA
LOMELI, ET AL.
DEMURRER TO COMPLAINT; MOTION TO STRIKE
Date of Hearing: March 25, 2025 Trial
Date: N/A
Department: 45 Case No.: 24STCV25293
Moving
Party: Defendant Andrea Lomeli
Responding
Party: Plaintiff Alexandra Rodriguez
BACKGROUND
On September 30, 2024, Plaintiff Alexandra Rodriguez
(“Plaintiff”) filed a complaint against Defendant Andrea Lomeli (“Defendant”)
and DOES 1 through 10, inclusive, alleging causes of action for: (1) Breach of
Contract; (2) Breach of Fiduciary Duty; and (3) Negligence.
Plaintiff alleges that on or about March 24, 2021, Plaintiff
and Defendant entered into an oral agreement (the “Agreement”) to create a
partnership and engaged in discussions regarding the creation of “VIBE, a joint
venture LLC” (“Vibe”). (Compl., ¶ 7.) Plaintiff led the efforts concerning the
corporate structuring of Vibe. (Compl., ¶ 8.) On or about September 1, 2021,
Defendant communicated her intent to exit from the partnership and disassociate
herself from Vibe. (Compl., ¶ 9.) Upon her exit as a partner of Vibe, Defendant
held a 33 percent partnership in Vibe, and as part of her implied fiduciary
duty as a partner in Vibe, failed to remit to her partner Plaintiff the sum of
$5,272.66. (Compl., ¶ 10.) Plaintiff is seeking a total of $5,272.66 in damages
due to Defendant’s contract breach. (Compl., ¶ 11.)
On December 2, 2024, Defendant filed and served a combined
demurrer and motion to strike. Defendant demurs to each cause of action in the
complaint on the grounds that each cause of action is uncertain and fails to
state facts sufficient to constitute a cause of action.
On March 12, 2025, Plaintiff filed an opposition to the
demurrer and motion to strike.
On March 17, 2025, Defendant filed a reply brief.
Initially, the Court informs Defendant that the demurrer and
motion to strike should have been filed as two separate motions. Defendant
cannot seek to avoid the filing fee by filing a combined demurrer and motion to
strike.
Moreover, the Court notes that the notice of motion as to the
motion to strike is defective. Defendant merely indicates that Defendant is
“moving to strike portions of [the] [c]omplaint.” (Not. of Mot. at p. 1:27-28.)
Defendant, however, has not identified which portions of the complaint are
sought to be stricken in the notice of motion. The motion to strike is
non-compliant with Cal. Rules of Court, rule 3.1322.
[Tentative] Ruling
The Court SUSTAINS the demurrer of Defendant to the first
cause of action for breach of contract and third cause of action for negligence
with 20 days leave to amend.
The demurrer to the second cause of action for breach of
fiduciary duty is OVERRULED.
The motion to strike is DENIED.
LEGAL
STANDARD
A party
may demur to a complaint on the grounds that it “does not state facts
sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd.
(e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.) A party may also demur to a complaint on the grounds that the
complaint is uncertain. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599,
605.) “[A] demurrer for uncertainty is not intended to reach the failure to
incorporate sufficient facts in the pleading, but is directed at the
uncertainty existing in the allegations actually made.” (Ibid.) “A demurrer for
uncertainty will not lie where the ambiguous facts are presumptively within the
knowledge of the demurring party.” (Ibid.)
When
considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc.
(2010) 185 Cal.App.4th 1068, 1078.) “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.” (SKF Farms v.
Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p.
747.)¿On demurrer, a court does “not accept contentions, deductions or
conclusions of fact or law.” (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th
889, 895.)
Although
courts construe pleadings liberally, sufficient facts must be alleged to
support the allegations pled to survive a demurrer. (Rakestraw v. California
Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) 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 party who filed the pleading subject to
demurrer to show the court that a pleading can be amended successfully. (Ibid.)
“Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. §
435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike
out 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.” (Code Civ. Proc. §
436(b).)
DEMURRER
The
Complaint is Not Uncertain
Defendant
contends that the complaint is fatally uncertain and ambiguous. The Court
disagrees.
“[D]emurrers
for uncertainty are disfavored, and are granted only if the pleading is so
incomprehensible that a defendant cannot reasonably respond.” (A.J. Fistes
Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695
[internal quotations omitted].)
The
Court rejects Defendant’s argument that the complaint is uncertain. The allegations
“are sufficiently clear to apprise the defendant of the issues that must be met
. . . .” (Bacon v. Wahrhaftig, supra, 97
Cal.App.2d 599, 605.)
The Court therefore OVERRULES
the demurrer of Defendant to the complaint on the grounds of uncertainty.
First Cause of Action—Breach of Oral Contract
To
state a cause of action for breach of contract, Plaintiff must be able to
establish “(1) the existence of the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) the resulting
damages to the plaintiff.” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
A
breach of contact cause of action is subject to a two-year statute of
limitations. (Code Civ. Proc. § 339(1).) Generally speaking, a cause of action
accrues at the time when the cause of action is complete with all of its
elements.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
806.) “An important exception to the general rule of accrual is the discovery
rule, which postpones accrual of a cause of action until the plaintiff
discovers, or has reason to discover, the cause of action.” (Id. at p.
807.) “A plaintiff has reason to discover a cause of action when he or she has
reason at least to suspect a factual basis for its elements.” (Ibid.)
“[S]uspicion of one or more of the elements of a cause of action, coupled with
knowledge of any remaining elements, will generally trigger the statute of
limitations period.” (Ibid.) “The discovery rule only delays accrual
until the plaintiff has, or should have, inquiry notice of the cause of
action.” (Ibid.) “In order to rely on the discovery rule for delayed
accrual of a cause of action, [a] plaintiff whose complaint shows on its face
that his claim would be barred without the benefit of the discovery rule must
specifically plead facts to show (1) the time and manner of discovery and (2)
the inability to have made earlier discovery despite reasonable diligence.” (Id.
at p. 808.) “In assessing the sufficiency of the allegations of delayed
discovery, the court places the burden on the plaintiff to show diligence;
conclusory allegations will not withstand demurrer.” (Ibid.)¿¿¿
The
Court agrees with Defendant that the first cause of action is barred by the
statute of limitations. Plaintiff’s reliance on Sutton v. Warner (1993)
12 Cal.App.4th 415 is inapposite as such case did not discuss the tolling of
the statute of limitations. In fact, Sutton v. Warner, supra, 12
Cal.App.4th 415 does not mention the statute of limitations at all.
Here,
based on the allegations of the complaint, Defendant breached the contract at
issue on or about September 1, 2021, by failing to pay Plaintiff pursuant to
written invoices sent to Defendant by Plaintiff upon her exit from the
partnership. (Compl., ¶ 16.) The complaint was not filed until September 30,
2024. Thus, the breach of contract claim is outside of the statute of
limitations. Plaintiff offers no facts in the complaint as to the existence of
delayed discovery or any facts showing reasonable diligence.
Thus,
the first cause of action for breach of contract is barred by the statute of
limitations.
The
Court therefore SUSTAINS the demurrer to the first cause of action for breach
of contract.
Second
Cause of Action—Breach of Fiduciary Duty
“The
elements of a cause of action for breach of fiduciary duty are the existence of
a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.) A “[p]artnership is a fiduciary relationship, and
partners may not take advantages for themselves at the expense of the
partnership.” (Enea v. Superior Court (2005) 132 Cal.App.4th 1559,
1564.)
Initially,
the Court finds that the opposition has stated that Leff v. Gunter (1983)
33 Cal.3d 508, 514 held that “a partner’s failure to provide agreed-upon
financial contributions constitutes a breach of fiduciary duty.” (Opp’n at p. 6:7-9.)
Leff, supra, Cal.3d 508, however, does not set forth any such
proposition. Plaintiff is admonished to correctly cite case authorities and to not
cite authorities for propositions for which they do not stand.
Irrespective
of Plaintiff misquoting authority, the Court finds that Plaintiff has stated a valid
cause of action for breach of fiduciary duty. Plaintiff has alleged that the
parties entered into a partnership. (Compl., ¶ 14.) Defendant owed fiduciary
duties of care, loyalty, and good faith to Vibe and to Plaintiff. (Compl., ¶
19.) Defendant is alleged to be partner of Vibe. (Compl., ¶ 19.) Defendant is
alleged to have breached her fiduciary duties of care, loyalty, and good faith
by failing to remit to Plaintiff the sum of $5,272.66, which she owed as a 33%
interest holder and partner in Vibe. (Compl., ¶ 20.)
On
demurrer, the court may make inferences in favor of Plaintiff based on the
allegations of the complaint. (Miyahara v. Wells Fargo Bank, N.A. (2024)
99 Cal.App.5th 687, 702-03.) Thus, the Court infers that by failing to remit
the monies owed, Defendant took financial advantage of the partnership for
herself. Plaintiff has therefore stated a sufficient cause of action for breach
of fiduciary duty.
The
Court OVERRULES the demurrer of Defendant to the second cause of action for
breach of fiduciary duty.
Third
Cause of Action—Negligence
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.) A negligence
cause of action is subject to a two-year statute of limitations. (Code Civ.
Proc. § 335.1.)
Here,
based on the allegations of the complaint, Defendant failed to remit to Plaintiff the sum of $5,272.66, which occurred on
September 1, 2021. (Compl., ¶¶ 13, 16, 24.) The complaint was not filed until
September 30, 2024. Thus, the negligence cause of action is untimely. Plaintiff
offers no facts in the complaint as to the existence of delayed discovery or
any facts showing reasonable diligence.
The
Court therefore SUSTAINS the demurrer to the third cause of action for
negligence.
Leave
to Amend
The
Court must grant leave to amend if there is a reasonable possibility of successful
amendment pursuant to Goodman v.
Kennedy, supra, 18 Cal.3d 335, 349. Plaintiff may allege facts which, if proven, may
state sufficient causes of action for breach of contract and negligence. The
Court therefore will grant leave to amend if plaintiff explains at the hearing
that it has additional facts which would bring these claims within the statute
of limitations.
The demurrer to the
second cause of action for breach of fiduciary duty is OVERRULED.
MOTION TO STRIKE
Procedural
Violations
Cal.
Rules of Court, rule 3.1322 provides that “[a] notice of motion to strike a
portion of a pleading must quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action,
count, or defense. Specifications in a notice must be numbered consecutively.”
(Cal. Rules of Court, rule 3.1322(a).)
The
Court finds that the motion to strike is procedurally deficient. Although the
memorandum of points and authorities in support of the demurrer and motion to
strike indicates that Defendant seeks to strike references to punitive damages
and attorney fees from the complaint (Mot. at pp. 17-21), the notice of motion
does not identify which portions of the complaint are sought to be
stricken. Plaintiff does not raise such
argument in opposition to the motion; however, Defendant should have complied
with California Rules of Court, rule 3.1322.
Therefore,
the Court finds that Defendant’s motion to strike is procedurally defective and
cannot be granted. Due process requires that Plaintiff “be given adequate
notice.” (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.) The
notice of motion is deficient as it concerns Defendant’s motion to strike. Defendant has failed to comply with Cal.
Rules of Court, rule 3.1322 and has not even identified which paragraphs of the
complaint are sought to be stricken.
Thus,
the motion to strike is DENIED.
CONCLUSION
Based on the foregoing, the Court SUSTAINS the demurrer of
Defendant to the first cause of action for breach of contract and third cause
of action for negligence with 20 days leave to amend provided plaintiff has
additional facts to allege.
The demurrer to the second cause of action for breach of
fiduciary duty is OVERRULED.
The motion to strike is DENIED.