On 07/03/2017 WEST ADAM PROPERTY LLC filed a Contract - Other Contract lawsuit against MOSES, JACK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
WEST ADAM PROPERTY LLC
TOMER J FEDIDA EWQ
Court documents are not available for this case.
NON-JURY TRIAL SET FOR 01/03/19, 08:30 AM, DEPT 77Read MoreRead Less
OSC SET 07/06/20, 08:30 AM, DEPT. 77 PURSUANT TO GENERAL ORDERRead MoreRead Less
COMPLAINT FILED - BREACH OF CONTRACTRead MoreRead Less
SUMMONS FILEDRead MoreRead Less
Case Number: 17K08213 Hearing Date: February 11, 2020 Dept: 26
WEST ADAM PROPERTY, LLC; and GABRIEL FEDIDA
Case No.: LAM17K08213
Hearing Date: February 11, 2020
[TENTATIVE] order RE:
DEFENDANTS’ Demurrer to THE First amended complaint
On July 3, 2017, Plaintiff West Adam Property, LLC (“Plaintiff West Adam”) and Gabriel Fedida (“Plaintiff Fedida”) (collectively “Plaintiffs”) commenced the instant action against defendants Jack Moses (“Defendant”) and Does 1 through 10 for allegedly failing to provide reproductions and observation as required pursuant to the parties’ architectural services contract. (First Amended Complaint, ¶¶ 7-28.) On July 29, 2019, Plaintiffs filed the operative First Amended Complaint (“FAC”) asserting two causes of action for breach of contract and violations of Business and Professions Code section 5500 et. seq.
On September 12, 2019, Defendant filed the instant demurrer against the FAC primarily arguing lack of standing. On January 15, 2020, Plaintiffs filed an opposition. On January 22, 2020, Defendant replied.
On January 29, 2020, the Court continued the motion to allow Defendant to file a meet and confer declaration. On February 4, 2020, Defendant filed the required declaration.
Meet and Confer Requirement
CCP Section 430.41(a) 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.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C.C.P. § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at subd. (a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at subd. (a).)
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, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).
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. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) 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.) “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 Ct. (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, 147 Cal.App.4th at 747.)
A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Meet and Confer Requirement
The Court finds that Defendant has now complied with the meet and confer requirement. (See Rubin Decl. ¶¶ 4-5.)
First Cause of Action: Breach of Contract
Defendant contends that Plaintiff West Adam does not have standing to sue Defendant for breach of contract because Plaintiff West Adam was not an original party to the contract that forms the basis of the suit. Nor is Plaintiff West Adam a third party beneficiary of the contract.
Generally, a person who is not a party to a contract has no standing to enforce the contract or to recover damages for wrongful withholding of benefits to the contracting party. (See, e.g., Republic Indemnity Co. v. Schofield (1996) 47 Cal.App.4th 220, 227; Gantman v. United Pacific Insurance Co. (1991) 232 Cal.App.3d 1560, 1566.)
Code of Civil Procedure § 367 provides that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (CCP § 367.) “Only the real party in interest has ‘an actual and substantial interest in the subject matter of the action,’ and stands to be ‘benefited or injured’ by a judgment in the action.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 60.)
“[A] third party — that is, an individual or entity that is not a party to a contract — may bring a breach of contract action against a party to a contract only if the third party establishes not only (1) that it is likely to benefit from the contract, but also (2) that a motivating purpose of the contracting parties is to provide a benefit to the third party, and further (3) that permitting the third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 821.
Here, the First Amended Complaint alleges that Defendant entered into a written agreement with Plaintiff Fedida to perform architectural services for the construction of the subject property in 2008. (FAC ¶ 7.) “The contract was entered into for the sole and express purpose of and benefit of constructing and developing the subject property.” (Ibid.) Plaintiff West Adam became owner of the subject property and therefore benefited from Defendants’ ongoing performance of the contract. (FAC ¶¶ 7-9.) “Prior to 2011, Defendant was at all times relevant aware that [Plaintiff] Fedida was the developer, but that the Subject Property would be held for ownership through other entities.” (FAC ¶ 10.) Further, the FAC alleges that Defendant knew of the ownership by Plaintiff West Adam and “requested notarized documents pertaining to formation of [Plaintiff West] Adam, to proceed with the permit process.” (FAC ¶ 11.) Plaintiff West Adam paid Defendant multiple times for his services in relation to the contract. (FAC ¶ 20, Ex. F.) The Court finds that based on these allegations, Defendant could reasonably expect Plaintiff West Adam to bring a breach of contract claim. Finally, the FAC further alleges that Defendant and Plaintiff Fedida as owner of Plaintiff West Adam agreed to an addendum to the contract in 2016. (FAC ¶¶ 15-16, Ex. D.)
Accordingly, as alleged in the FAC, (1) Plaintiff West Adam directly benefited from the contract, (2) a motivating factor of the contract was to benefit the owner of the subject property, which would be an entity controlled by Plaintiff Fedida, and (3) allowing Plaintiff West Adam to bring a breach of contract cause of action is consistent with the contract and is a reasonable expectation of Defendant and Plaintiff Fedida. Therefore, Defendant’s demurrer to Plaintiff West Adam for the first cause of action for lack of standing is overruled.
Second Cause of Action: Violations of Business and Professions Code section 5500 et. seq.
Defendant argues that the Court should sustain Defendant’s demurrer to the second cause of action of the FAC because it does not state a claim, was never pled in the previous iteration of the complaint, and was added to the FAC without the Court's leave.
When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (Patrick v. Alacer Corp. (2008) 167 Cal App. 4th 995, 1015; see also Zakk v. Diesel (2019) 33 Cal. App.5th 431, 456.) The addition of a new cause of action may be proper, however, when it “directly responds to the court's reason for sustaining the earlier demurrer.” (Patrick v. Alacer Corp., supra, 167 Cal. App. 4th at 1015.)
Further, the court may grant leave to amend the pleadings at any stage of the action. (See CCP §473(a).) “So long as the action as set out in the amendment is not entirely foreign to the original form of the action, the amendment is within the discretion of the court;¿the relief sought arising out of the same general state of facts.” (Ford v. Ford (1919) 44 Cal. App. 415.) “[A]bsent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.)
Though this cause of action appears to arise out of the same facts as the original complaint, the Court declines to grant leave to add this cause of action at this juncture. The Court notes it appears that this cause of action would fail as Plaintiffs do not appear to have standing to bring this claim. Enforcement pursuant to this section is allowed only by the relevant board or by criminal charges. (See Bus. & Prof. Code, § 5510.1. [“The board shall establish a fair and uniform enforcement policy to deter and prosecute violations of this chapter or any rules and regulations promulgated pursuant to this chapter to provide for the protection of the consumer.”] [emphasis added].) Nor do Plaintiffs provide any basis to allow this amendment. Accordingly, the Court sustains Defendant’s demurrer to this cause of action without prejudice for Plaintiff to file a noticed motion seeking leave to amend to add this cause of action.
Misjoinder: Plaintiff Fedida Defendant contends that there is a misjoinder as to Plaintiff Fedida because Plaintiff Fedida was not a plaintiff to the original complaint and has not petitioned the court for leave to intervene.
Demurrers on the ground of misjoinder lie only when the defect appears on the face of the complaint or matters judicially noticed. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.) Further, “[a]lthough the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect, this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled.” (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231, fn 1, [alterations and emphasis in original].))
Defendant has pled no prejudice. It is clear from Defendant’s own cross-complaint arising out of this contract that Plaintiff Fedida has an interest in the instant action. Further, the addition of Plaintiff Fedida “directly responds to the court's reason for sustaining the earlier demurrer.” (Patrick v. Alacer Corp., supra, 167 Cal. App. 4th at 1015.) Accordingly, Defendant’s demurrer on misjoinder grounds is OVERRULED.
Defendant also demurrers to Plaintiff’s claim for punitive damages. A motion to strike -- not a general demurrer -- is the proper procedure to attack a claim for punitive damages. As general demurrer challenges, only the sufficiency of the cause of action pleaded, and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action. (See Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562 as modified on denial of reh'g (Aug. 22, 1996).) Accordingly, Defendant’s demurrer to punitive damages is OVERRULED.
However, on the Court’s own motion pursuant to Code of Civil Procedure § 436, the Court will strike the punitive damages as punitive damages are improper for a mere claim of contract. (Civ. Code, § 3294(a); See also Crogan v. Metz (1957) 47 Cal.2d 398.)
Leave to Amend
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 plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)
For the reasons noted above, the Court declines to grant leave to amend as to the second cause of action at this juncture as it does not appear that Plaintiff can remedy the defect identified by the Court. Accordingly, the Court sustains Defendant’s demurrer to the second cause of action without prejudice for Plaintiff to file a noticed motion seeking leave to amend to add this cause of action.
As to punitive damages, the Court will allow Plaintiffs make an offer at the hearing as to what additional facts Plaintiff may allege to support a claim for punitive damages.
Conclusion and ORDER
Defendant Jack Moses’s demurrer to the second cause of action is sustained without prejudice for Plaintiff to file a noticed motion seeking leave to amend to add this cause of action. Defendant’s demurrer is otherwise OVERRULED.
On the Court's own motion, Plaintiffs’ claim for punitive damages is stricken. Plaintiffs may make an offer at the hearing as to what additional facts Plaintiff may allege to support a claim for punitive damages.
Moving Party is ordered to give notice and file proof of service of such.
DATED: February 11, 2020 ___________________________
Judge of the Superior Court
 The Court notes that while the notice states a claim of misjoinder it appears Defendant is actually claiming that there is a lack of standing and the Court analyzes as such.
 Further, it appears Plaintiff West Adam is a direct party to the contract due to the addendum added to the contract in 2016. (FAC, Ex. D.)