On 05/26/2017 PAWNEE LEASING CORPORATION filed a Contract - Other Contract lawsuit against MASSINO ARCELLA. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.
Pending - Other Pending
Spring Street Courthouse
Los Angeles, California
GEORGINA T. RIZK
PAWNEE LEASING CORPORATION
ARCELLA MASSINO DBA MASSI GELATI
AMAZING SNOW LLC
FERNS BARRY WAYNE
Attorney at Ferns, Adams & Associates
2815 Mitchell Dr Ste 210
Walnut Creek, CA 94598
12/30/2019: Answer - Answer
12/4/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))
9/23/2019: Opposition (name extension) - Opposition to Demurrer to Second Amended Complaint
9/4/2019: Notice (name extension) - Notice of Motion and Motion to Strike Punitive and Exemplary Damage Allegations of Second Amended Complaint
6/27/2019: Opposition (name extension) - Opposition to defendant Amazing Snow LLC'S General Demurrer
5/7/2019: Opposition (name extension) - Opposition to Defendant Amazing Snow, LLC's Motion to Strike
5/7/2019: Request (name extension) - Request for Exemption from Mandatory Electronic Filing and Service
4/18/2019: Notice of Motion - Notice of Motion AND MOTION TO STRIKE PUNITIVE AND EXEMPLARY DAMAGE ALLEGATIONS OF FIRST AMENDED COMPLAINT OF PLAINTIFF PAWNEE LEASING CORPORATION
7/16/2018: Other - (name extension)
5/17/2018: Other - (name extension)
5/17/2018: Proof of Service by Mail
5/17/2018: Other - (name extension)
5/29/2018: Order for Publication - FOR MASSINO
5/17/2018: Notice of Case Assignment - Limited Civil Case
DocketAnswer; Filed by: Amazing Snow, LLC (Defendant); As to: Pawnee Leasing Corporation (Plaintiff)Read MoreRead Less
DocketMinute Order (Ruling on Submitted Matter)Read MoreRead Less
DocketCertificate of Mailing for (Ruling on Submitted Matter) of 12/20/2019; Filed by: ClerkRead MoreRead Less
DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))Read MoreRead Less
DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 12/04/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 12/04/2019; Result Type to Held - Taken under SubmissionRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketThere being no judge available this date, Hearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 10/09/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Court's Motion was rescheduled to 12/04/2019 10:30 AMRead MoreRead Less
DocketReply Memorandum of Points and Authorities in Support of Motion to Strike Punitive and Exemplary Damage Allegations of Second Amended Complaint; Filed by: Amazing Snow, LLC (Defendant)Read MoreRead Less
DocketReply Memorandum of Points and Authorities in Support of Demurrer to Second Amended Complaint; Filed by: Amazing Snow, LLC (Defendant)Read MoreRead Less
DocketOpposition to Demurrer to Second Amended Complaint; Filed by: Pawnee Leasing Corporation (Plaintiff)Read MoreRead Less
DocketUpdated -- Civil Case Cover Sheet: Status Date changed from 05/26/2017 to 05/17/2018Read MoreRead Less
DocketMinute Order; Filed by: ClerkRead MoreRead Less
DocketReceipt for Transmitted Record; Filed by: ClerkRead MoreRead Less
DocketNotice of Incoming Transfer; Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketComplaint Transferred In From Los Angeles; Filed by: Pawnee Leasing Corporation (Plaintiff); As to: Massino Arcella (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Pawnee Leasing Corporation (Plaintiff)Read MoreRead Less
DocketUpdated -- Complaint: Status Date changed from 01/11/2018 to 05/26/2017Read MoreRead Less
DocketUpdated -- Transfer In Case Documents: Status Date changed from 05/17/2018 to 05/26/2017Read MoreRead Less
DocketUpdated -- First Amended Complaint: Status Date changed from 07/16/2018 to 05/26/2017Read MoreRead Less
Case Number: 18STLC02911 Hearing Date: December 04, 2019 Dept: 94
Pawnee Leasing Corp. v. Massino Arcella, et al.
DEMURRER; MOTION TO STRIKE
(CCP §§ 430.31, et seq., 435-436)
Defendant Amazing Snow, LLC’s Demurrer to the Second Amended Complaint is OVERRULED as to the first cause of action and SUSTAINED without leave to amend as to the second, third, fourth, and fifth causes of action.
Defendant Amazing Snow, LLC’s Motion to Strike is GRANTED without leave to amend.
Non-party Currency Capital, LLC (“CCL”) assigned its right to the contract in controversy here to Plaintiff, who then brought the instant breach-of-contract action. (SAC ¶ 17, Exh. 8.) Arcella responded to a sales advertisement by Defendant wanting to purchase a refurbished Gelato Machine #502 G for his business. (SAC ¶ 8.) Arcella asked CCL to finance the purchase, which it agreed to do, and CCL, in turn, agreed to lease the Gelato Machine #502 G to Arcella. (Id. ¶¶ 9-10.) Plaintiff alleges that under the terms of the contract, Defendant was supposed to deliver the Gelato Machine #502 G to Arcella, but instead delivered an Ice Cream Machine #502, which does not produce gelato. (Id. ¶¶ 20-25.) Because Defendant failed to deliver the Gelato Machine #502 G, Plaintiff alleges that it breached its contractual obligations. (Id. ¶¶ 22-24, 39.)
Plaintiff Pawnee Leasing Corp. (“Plaintiff”) initiated this action in unlimited jurisdiction court in the Santa Monica Courthouse on May 26, 2017, and it was transferred to this courthouse and reclassified to limited jurisdiction court on May 17, 2018. Plaintiff filed a First Amended Complaint (“FAC”) against Defendant Amazing Snow, LLC (“Defendant”) on July 16, 2018 for (1) breach of contract, (2) negligence, and (3) and intentional interference with contractual relations. Plaintiff dismissed former defendant Massino Arcella d/b/a Massi Gelati (“Arcella”) on April 17, 2019.
Defendant filed a Demurrer to and Motion to Strike the FAC on April 17 and 18, 2019. The Court sustained the Demurrer as to the first cause of action for breach of contract with 30 days leave to amend, and sustained the Demurrer as to the second and third causes of action without leave to amend. As to the first cause of action, the Court found that the FAC included conclusory allegations as to performance and breach. Additionally, the Court granted the Motion to Strike punitive damages without leave to amend.
Plaintiff filed the operative Second Amended Complaint (“SAC”) on August 19, 2019 alleging causes of action for (1) breach of contract, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) breach of implied warranty, and (5) unfair business practices. Defendant filed the instant Demurrer and Motion to Strike on September 4, 2019. Plaintiff opposed on September 23, 2019, and Defendant replied on September 27, 2019.
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code of Civil Procedure section 430.10 subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure section 430.10 subdivision (a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.
However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. 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).)
Motion to Strike
California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (CCP § 92(d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)
In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (Code Civ. Proc., § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc., § 436.)
Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)
Meet and Confer Requirement
The Court finds that the meet and confer declarations which accompany both the Demurrer and Motion to Strike satisfy the requirements of Code of Civil Procedure sections 430.41 and 439. (Demurrer, Moss Decl.; Motion to Strike, Moss Decl.)
First 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.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) Defendant demurs on the ground that Plaintiff has not alleged facts proving how the contract was breached.
Defendant contends that the contract, submitted as Exhibits 2 (lease agreement) and 4 (invoice) with the SAC, shows that the item purchased was a Refurbished Crapigiani Batch Freezer Model LB 502—not a Model 502 G. (Demurrer pp. 4-5.) Thus, Defendant argues that it could not have breached its contract for sending the wrong machine because it delivered the model required pursuant to the contract. (Id.)
As to the invoice, Plaintiff alleges in the SAC that Defendant intentionally omitted the letter “G” from the machine description even though Defendant was aware that Plaintiff only sought the Model 502 G and specifically needed that type of machine for gelato. (Plaintiff’s SAC, ¶ 39.) To support this argument, Plaintiff points to the FedEx packing slip receipt which lists the item being delivered as a Model LB 502 G. (SAC, Exh. 10.) The Court finds that this conflict shown through Plaintiff’s allegation and accompanying exhibit sufficiently demonstrates that Defendant may have misidentified the model of machine to Plaintiff in the course of performing on the contract. Thus, the evidence and allegations included as to the cause of action for breach of contract are sufficient.
Accordingly, the demurrer as to the first cause of action for breach of contract is overruled.
Second, Third, Fourth and Fifth Causes of Action
In addition to the amended cause of action for breach of contract, Plaintiff has asserted four new causes of action in the SAC for alleging causes of action for intentional misrepresentation, negligent misrepresentation, breach of implied warranty, and unfair business practices. The Court notes these causes of action were improperly added to the SAC. “Generally, where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the cause(s) of action to which the demurrer has been sustained . . .” (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 6:635.5; see Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) However, a court has discretion to allow other amendments. (Edmon & Karnow, ¶¶ 6:635.6, 6:640; see Code Civ. Proc., §§ 473(a)(1), 576.)
Pursuant to the Court’s Minute Order on July 17, 209, Plaintiff was only given permission to amend the cause of action for breach of contract. There are no indications that Plaintiff requested and the Court granted leave to add the four causes of action listed above. As such, these causes of action were improperly added to the SAC.
Accordingly, the demurrers to the second, third, fourth, and fifth causes of action are sustained without leave to amend. If Plaintiff intends to pursue these causes of action, Plaintiff must properly seek leave to do so by filing a motion for leave to amend pursuant to CCP section 473.
Motion to Strike Portions of the Second Amended Complaint
Defendant moves to strike Plaintiff’s request for punitive and exemplary damages in the amount of $50,000. “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.]
These statutory elements include allegations that the defendant has been guilty of oppression,
fraud or malice. [Citation.]” (Turman v. Turning Point of Central Calif., Inc. (2010) 191
Cal.App.4th 53, 63.)
Defendant contends that Plaintiff fails to allege sufficient facts in support of its request for
punitive damages, and improperly stated specific amounts in its prayer for relief. (Motion to Strike, p. 5.) The Court agrees. “Code section 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Because Section 3294 prohibits punitive damages on a breach of contract claim, and given that the Court has sustained all other causes of action, the Motion to Strike allegations of punitive and exemplary damages is GRANTED without leave to amend.
Defendant Amazing Snow LLC’s Demurrer to the Complaint is OVERRULED as to the first cause of action and SUSTAINED without leave to amend as to the second, third, fourth, and fifth causes of action.
Defendant Amazing Snow LLC’s Motion to Strike Portions of the Complaint is GRANTED without leave to amend.
Moving party to give notice.