On 03/14/2019 G MARSHALL HANN filed a Property - Other Property Fraud lawsuit against DAVID WALTER. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Other.
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
HANN G. MARSHALL
DAVE WALTER TILE & STONE INSTALLATIONS
HANN G. MARSHALL
MARSHALL EVAN DASHIELL
MARSHALL EVAN D
6/18/2020: Notice (name extension) - Notice of Continuance of Demurrer
4/17/2020: Notice (name extension) - Notice of Continuation of Demurrer
1/14/2020: Opposition (name extension) - Opposition to Defendants Demurrer to the 1st Amended Complaint
1/14/2020: Request for Dismissal - Request for Dismissal
1/23/2020: Reply (name extension) - Reply TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT OF PLAINTIFF G. MARSHALL HANN
1/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
12/13/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike
11/19/2019: Notice of Ruling - Notice of Ruling
9/24/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))
8/13/2019: Notice of Ruling - Notice of Ruling
6/27/2019: Opposition (name extension) - Opposition to Defendant's Motion to Strike
7/9/2019: Reply (name extension) - Reply TO Opposition to (1) Demurrer and (2) Motion to Strike Portions of Complaint of Plaintiff G. Marshall Hann
7/16/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))
5/23/2019: Notice of Motion - Notice of Motion
5/23/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)
3/14/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
3/14/2019: First Amended Standing Order - First Amended Standing Order
3/14/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
DocketHearing on Demurrer - without Motion to Strike scheduled for 06/26/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 06/19/2020Read MoreRead Less
DocketNon-Jury Trial scheduled for 09/10/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 06/19/2020Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/17/2022 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 06/19/2020Read MoreRead Less
DocketNotice of Continuance of Demurrer; Filed by: David Walter (Defendant); As to: David Walter (Defendant)Read MoreRead Less
DocketAddress for G. Marshall Hann (Attorney) updatedRead MoreRead Less
DocketNotice of Continuance of Demurrer; Filed by: G. Marshall Hann (Plaintiff); As to: David Walter (Defendant); Dave Walter Tile & Stone Installations (Defendant)Read MoreRead Less
DocketOn the Amended Complaint (1st) filed by G. Marshall Hann on 11/19/2019, entered Request for Dismissal with prejudice filed by G. Marshall Hann as to Dave Walter Tile & Stone Installations and David WalterRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketReset - Court Unavailable, Hearing on Demurrer - without Motion to Strike scheduled for 06/22/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 06/26/2020 10:30 AMRead MoreRead Less
DocketNotice OF CONTINUANCE OF DEMURRER; Filed by: G. Marshall Hann (Plaintiff); As to: David Walter (Defendant); Dave Walter Tile & Stone Installations (Defendant)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by: G. Marshall Hann (Plaintiff); As to: Dave Walter Tile & Stone Installations (Defendant); Proof of Mailing Date: 04/17/2019; Service Cost: 22.50; Service Cost Waived: NoRead MoreRead Less
DocketProof of Service by Substituted Service; Filed by: G. Marshall Hann (Plaintiff); As to: David Walter (Defendant); Proof of Mailing Date: 04/17/2019; Service Cost: 45.00; Service Cost Waived: NoRead MoreRead Less
DocketComplaint; Filed by: G. Marshall Hann (Plaintiff); As to: David Walter (Defendant); Dave Walter Tile & Stone Installations (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: G. Marshall Hann (Plaintiff); As to: David Walter (Defendant); Dave Walter Tile & Stone Installations (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: G. Marshall Hann (Plaintiff); As to: David Walter (Defendant); Dave Walter Tile & Stone Installations (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketNon-Jury Trial scheduled for 09/10/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/17/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk CourthouseRead MoreRead Less
Case Number: 19STLC02586 Hearing Date: November 14, 2019 Dept: 94
DEMURRER TO COMPLAINT
(CCP § 430.10)
MOTION TO STRIKE COMPLAINT
(CCP § 436)
Defendants Dave Walter and Dave Walter Tile & Stone Installations’ Demurrer is SUSTAINED and Motion to Strike is GRANTED, both with 15 days’ leave to amend.
OPPOSITION: Filed on June 27, 2019 [ ] Late [ ] None
REPLY: Filed on July 9, 2019 [ ] Late [ ] None
On March 14, 2019, Plaintiff G. Marshall Hann (“Plaintiff”) brought this action for breach of contract and related claims against Defendants Dave Walter and Dave Walter Tile & Stone Installations (collectively, “Defendants”). In response, Defendants filed a Demurrer to and a Motion to Strike the Complaint on May 23, 2019. Plaintiff filed his Opposition Papers on June 27, and Defendants replied on July 9.
At the initial hearing on July 16, the Court found that Defendants failed to meet and confer with Plaintiff as required by CCP § 430.41(a) and § 435.5(a) and continued the Demurrer to and a Motion to Strike. Defendants’ counsel subsequently met and conferred with Plaintiff’s counsel via various letters in July and August 2019. (9/10/19 Marshall Decl., Exhs. 1-3.) The exchange does not seem to have resulted in a resolution on the Demurrer and Motion to Strike, and Plaintiff has not complained about the insufficiency of the meet and confer. Accordingly, the Court now turns to the merits of the moving papers.
II. Legal Standard
“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) The legal standard for a demurrer and a motion to strike is the same. “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437(a).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ivanoff, supra, 9 Cal.App.5th p. 725.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
A. Special Demurrer for Uncertainty
Defendants especially demur to the Complaint for uncertainty. (Demurrer pp. 12-13.) But special demurrers for uncertainty are not permitted in a limited jurisdiction court. (See CCP § 92(c).) Accordingly, the Court cannot consider the special demurrer, and it is OVERRULED.
B. General Demurrer to All Five Causes of Action
Plaintiff orally contracted with Defendants to come to his home to install and repair certain granite. (Compl. ¶ GN-1.) Plaintiff stayed at home in April 2017 waiting for Defendants to show up and perform the work, but Defendants failed to appear. (Id. ¶¶ BC-1-BC-2, FR-5, GN-1.) As a result, Plaintiff brought this Complaint asserting five causes of action against Defendants: (1) breach of oral contract, (2) fraud, (3) negligence, (4) unfair business practices, and (5) declaratory relief.
1. Breach of Oral Contract (1st Cause of Action)
“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.)
Defendants contend that Plaintiff fails to allege sufficient facts to constitute a cause of action for breach of contract because he fails to allege consideration and the specific price of the oral contract. (Demurrer pp. 6-7.) The Court mostly agrees.
“‘The statutory presumption of consideration . . . does not, of course, apply to an oral contract. In an action on such an agreement, the essential element of consideration must normally be alleged. [Citation.]’ [Citation.]” (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 284.) Plaintiff alleges that Defendants were supposed to install and repair granite in his house based on an oral contract they made, but fails to allege what benefits (or consideration) Defendants would acquire for such performance.
Defendants cite to secondary sources to argue that that uncertainty over the price of the contract may render it unenforceable, (Demurer p. 7), but a careful reading of those sources show that they apply to contract for sale of goods—not contract for services which is at issue here. Those secondary sources, moreover, are not binding authorities. “[I]t is well settled that a contract need not specify price if it can be objectively determined.’ [Citation.]” (Roberts v. Adams (1958) 164 Cal.App.2d 312, 315.)
Nonetheless, Plaintiff has failed to sufficiently allege consideration, so the Demurrer to the first cause of action is SUSTAINED.
2. Fraud (2nd Cause of Action)
“Promissory fraud is a species of fraud requiring proof of ‘(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e].’ [Citation.]” (Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1079.) “Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity. [Citation.] General and conclusory allegations are insufficient. [Citation.] The particularity requirement demands that a plaintiff plead facts which ‘‘‘show how, when, where, to whom, and by what means the representations were tendered.’’’ [Citation.]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)
Contrary to Defendants’ contention, the Court finds that it was reasonable for Plaintiff to rely on Defendants’ promise to appear on a certain day at his home to install and repair his granite. The Court also disagrees that Plaintiff’s damages in lost wages for having to stay home waiting for Defendants and having to seek a new contractor are tort damages not proper in a claim for promissory fraud. (Demurrer pp. 8-9.) Promissory fraud is a “tort action for deceit,” so Plaintiff is entitled to tort damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
The Court, however, agrees with Defendants that Plaintiff fails to specifically allege “how, when, where, to whom, and by what means the representations were tendered” to Defendants. (Cansino, supra, 224 Cal.App.4th p. 1469.) For this reason, the Demurrer to the second cause of action is SUSTAINED.
3. Negligence (3rd Cause of Action)
“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citation.]” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
Here, Plaintiff fails to sufficiently allege what tort duty Defendants had to Plaintiff and how Defendants breach them. “‘[N]egligent’ performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. [Citation.]” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774, emphasis added.)
4. Declaratory Relief (5th Cause of Action)
“‘The purpose of a judicial declaration of rights in advance of an actual tortious incident is to enable the parties to shape their conduct so as to avoid a breach.’ [Citation.] Declaratory relief ‘‘operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.’’ [Citation.]” (Snyder v. California Ins. Guarantee Assn. (2014) 229 Cal.App.4th 1196, 1207.)
Here, Plaintiff is seeking declaratory relief to address a past wrong, namely Defendants’ alleged breach of oral contract, and there are no allegations of prospective rights that need judicial declaration. Accordingly, Plaintiff has failed to sufficiently allege a claim for declaratory relief.
5. Unfair Business Practices (4th Cause of Action)
“‘‘[A]n action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under [Business and Professions Code] section 17200 et seq. and subject to the distinct remedies provided thereunder.’’ [Citation.]” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 536, emphasis added.)
Given all Plaintiff’s other causes of action fail, the fourth cause of action must necessarily fail because it depends on another violation of the law.
C. Motion to Strike
Defendants also ask to strike allegations of punitive damages and attorney’s fees in the Complaint. (Motion to Strike pp. 4-7.)
“In the absence of an independent tort, punitive damages may not be awarded for breach of contract ‘even where the defendant’s conduct in breaching the contract was willful, fraudulent, or malicious.’’ [Citations.]” (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 61.) “The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages . . . .” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716.)
Here, neither Plaintiff’s breach of contract claim nor negligence claim is sufficient to justify awarding punitive damages. Moreover, “‘[u]nder the American rule, each party to a lawsuit ordinarily pays its own attorney fees.’ [Citation.] This default rule can be modified by contract, statute, or rule. [Citation.]” (N.S. v. D.M. (2018) 21 Cal.App.5th 1040, 1046-1047.) Plaintiff also fails to allege under what legal basis he is entitled to attorney’s fees. Accordingly, striking Plaintiff’s allegations of punitive damages and attorney’s fees is appropriate.
IV. Conclusion & Order
In light of the foregoing, the Demurrer is SUSTAINED and Motion to Strike is GRANTED, both with 15 days’ leave to amend.
Moving parties are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.