GIDEON BENAKIVA VS REUBEN ZADEH

Tentative Rulings

Case Number: 20STLC01645    Hearing Date: July 01, 2020    Dept: 25

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Reuben Zadeh’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of June 29, 2020 [ ] Late [X] None

REPLY: None filed as of June 29, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On February 20, 2020, Plaintiff Gideon Benakiva (“Plaintiff”) filed a complaint, in pro per, against Defendant Reuben Zadeh (“Defendant”).

On April 8, 2020, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). To date, no opposition has been filed.

1. 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.)

“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 Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) 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.” (Harris, supra, 56 Cal.4th p. 240.) “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 general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

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. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

1. Discussion

As an initial matter, the Court notes that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41 subdivision (a). (Demurrer, Mann Decl., ¶ 3.)

Defendant demurs to the Complaint on the basis that it is uncertain. (Demurrer, p. 4:15-17.) Demurrers for failure to state a cause of action or for lack of subject matter jurisdiction are “general” demurrers. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) All other grounds listed in Code of Civil Procedure section 430.10 are “special” demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court cannot consider this Demurrer on grounds of uncertainty.

Defendant also demurs to the Complaint on the basis that it does not allege sufficient facts to state a cause of action. (Demurrer, p. 2:10-11.) Indeed, Plaintiff’s failure to specify any cause of action in his Complaint is a violation of California Rules of Court, rule 2.112 which requires that each cause of action separately state its number (e.g., “first cause of action”), its nature (e.g., “for fraud”), and the party or parties against whom the cause of action is directed.

Notwithstanding this, Plaintiff appears to attempt to state a cause of action for 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.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

The Complaint alleges that Defendant owes Plaintiff $16,500.00 arising from the sale of a property located in Santa Monica, CA. (Compl., p. 2:1-3.) However, the Complaint doesn’t clearly allege that a contract existed between the parties and doesn’t include any details regarding the terms of any alleged contract. The Complaint also does not allege that Plaintiff performed or was excused from performing under an alleged contract. In addition, because Plaintiff did not allege what the terms of the contract were, Defendant’s breach is unclear.

Thus, Defendant’s Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

1. Conclusion & Order

For the foregoing reasons, Defendant Reuben Zadeh’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party is ordered to give notice.