This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 01:35:24 (UTC).

ABRAHAM H GOMEZ VS HAVANA VIEJA CUBAN RESTAURANT ET AL

Case Summary

On 09/02/2016 ABRAHAM H GOMEZ filed a Contract - Other Contract lawsuit against HAVANA VIEJA CUBAN RESTAURANT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is HOLLY E. KENDIG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2733

  • Filing Date:

    09/02/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

HOLLY E. KENDIG

 

Party Details

Plaintiff and Petitioner

GOMEZ ABRAHAM H.

Defendants and Respondents

CHAVEZ JOSE

HAVANA VIEJA CUBAN RESTAURANT

MONTEZ TERESA

DOES 1 TO 20

SOLIS ELIZABETH

SOLIS HECTOR

MONTEZ FERNANDO

OLD HABANA INC. DOE 1

ALEVY FAMILY TRUST CV.LLC

HABANA VIEJA CUBAN RESTAURANT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MEIZLIK JAMES M. ESQ.

MEIZLIK JAMES MARK ESQ.

Defendant Attorney

GAUGH KENNETH RAY ESQ.

 

Court Documents

REQUEST FOR ENTRY OF DEFAULT

1/4/2018: REQUEST FOR ENTRY OF DEFAULT

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

4/27/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

5/1/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

1ST AMENDED COMPLAINT REQUEST FOR ENTRY OF DEFAULT

5/18/2018: 1ST AMENDED COMPLAINT REQUEST FOR ENTRY OF DEFAULT

NOTICE OF RULING

7/9/2018: NOTICE OF RULING

SUMMONS

9/2/2016: SUMMONS

COMPLAINT-CONTRACT

9/2/2016: COMPLAINT-CONTRACT

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

10/5/2016: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

PROOF OF SERVICE SUMMONS

10/7/2016: PROOF OF SERVICE SUMMONS

Unknown

10/20/2016: Unknown

REQUEST FOR DISMISSAL

12/7/2016: REQUEST FOR DISMISSAL

REQUEST FOR ENTRY OF DEFAULT

12/7/2016: REQUEST FOR ENTRY OF DEFAULT

1ST AMENDED COMPLAINT REQUEST FOR ENTRY OF DEFAULT

12/23/2016: 1ST AMENDED COMPLAINT REQUEST FOR ENTRY OF DEFAULT

FIRST AMENDED PROOF OF SERVICE OF SUMMONS

3/24/2017: FIRST AMENDED PROOF OF SERVICE OF SUMMONS

PLAINTIFF'S STATEMENT OF DAMAGES 1. BREACH OF CONTRACT; ETC.

3/28/2017: PLAINTIFF'S STATEMENT OF DAMAGES 1. BREACH OF CONTRACT; ETC.

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

3/28/2017: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

SECOND AMENDED PROOF OF SERVICE OF SUMMONS

8/8/2017: SECOND AMENDED PROOF OF SERVICE OF SUMMONS

Unknown

11/21/2017: Unknown

106 More Documents Available

 

Docket Entries

  • 05/31/2019
  • Exhibit List; Filed by Abraham H. Gomez (Plaintiff)

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  • 05/31/2019
  • Witness List; Filed by Abraham H. Gomez (Plaintiff)

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  • 05/29/2019
  • Proof of Personal Service; Filed by Abraham H. Gomez (Plaintiff)

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  • 05/17/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Abraham H. Gomez (Plaintiff)

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  • 02/21/2019
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 12/19/2018
  • Notice of Case Reassignment for All Purposes; Filed by Abraham H. Gomez (Plaintiff)

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  • 12/07/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/03/2018
  • at 09:30 AM in Department 42, Holly E. Kendig, Presiding; Jury Trial - Not Held - Continued - Court's Motion

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  • 11/16/2018
  • at 08:30 AM in Department 42, Holly E. Kendig, Presiding; Final Status Conference - Held - Continued

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  • 11/16/2018
  • Minute Order ((FINAL STATUS CONFERENCE)); Filed by Clerk

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226 More Docket Entries
  • 09/30/2016
  • Proof of Service (not Summons and Complaint); Filed by Abraham H. Gomez (Plaintiff)

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  • 09/30/2016
  • Proof of Service (not Summons and Complaint); Filed by Abraham H. Gomez (Plaintiff)

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  • 09/30/2016
  • Proof of Service (not Summons and Complaint); Filed by Abraham H. Gomez (Plaintiff)

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  • 09/23/2016
  • FIRST AMENDED SUMMONS

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  • 09/23/2016
  • FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF: 1. BREACH OF CONTRACT, ETC

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  • 09/23/2016
  • First Amended Complaint; Filed by Abraham H. Gomez (Plaintiff)

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  • 09/23/2016
  • Summons; Filed by Abraham H. Gomez (Plaintiff)

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  • 09/02/2016
  • SUMMONS

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  • 09/02/2016
  • COMPLAINT-CONTRACT

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  • 09/02/2016
  • Complaint; Filed by Abraham H. Gomez (Plaintiff)

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Tentative Rulings

Case Number: BC632733    Hearing Date: January 31, 2020    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

ABRAHAM GOMEZ;

Plaintiff,

vs.

HAVANA VIEJA, et al.;

Defendants.

Case No.: BC632733

Hearing Date: January 31, 2020

[TENTATIVE] order RE:

DEFENDANTS old habana Inc., teresa montez and fernando montez’s Demurrer to THE Second amended complaint

Background

On September 2, 2016, Plaintiff Abraham H. Gomez (“Plaintiff”) initiated this action against Defendants Havana Vieja Cuban Restaurant; Teresa Montez; Fernando Montez; Hector Solis; Elizabeth Solis; Jose Chavez; and Does 1 to 20 for (1) breach of contract, (2) conspiracy to commit fraud, and (3) fraud.

On September 23, 2016, Plaintiff filed a First Amended Complaint for (1) breach of contract, (2) conspiracy to commit fraud, (3) fraud, and (4) intentional infliction of emotional distress. Plaintiff also added Alevy Family Trust CV LLC as a defendant.

On May 17, 2019, Plaintiff filed an amendment to the complaint, substituting in Old Habana, Inc. for Doe 1.

On August 8, 2019, the Court sustained a demurrer to the First Amended Complaint with leave to amend.

On August 16, 2019, Plaintiff filed a Second Amended Complaint (“SAC”) against all defendants except the previously added defendant Alevy Family Trust CV LLC for (1) breach of contract, (2) common counts, and (3) fraud.

On September 19, 2019, Defendants Old Habana, Inc., Teresa Montez, and Fernando Montez (“Moving Defendants”) filed and served the instant demurrer to the Second Amended Complaint.

On September 23, 2019, Plaintiff’s counsel, James M. Meizlik, filed and served a notice of his ineligibility to represent Plaintiff.

On December 18, 2019, a substitution of counsel was filed on behalf of Plaintiff naming Speros P. Maniates as Counsel of record.

Plaintiff has not filed any opposition.

Legal Standard

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).)

Demurrer Standard

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.)

Motion to Strike Standard

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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Discussion

Meet and Confer Requirement

The Court finds that Defendant has complied with the meet and confer requirement. (See Altholz Decl. ¶ 2(b).)

First Cause of Action: Breach of Contract

Moving Defendants demurrer to the first cause of action for breach of contract on the grounds that Plaintiff fails to plead the form of the contract; the statute of frauds bars the action; the SAC fails to plead a contract establishing a partnership;[1] and the interest on the investment is usurious, and therefore, uncollectable.

The elements that must be alleged for a breach of contract are “(1) the [existence of a] contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) The complaint must allege whether the contract is written, oral, or implied by conduct. (CCP § 430.10(g).)

Moving Defendants assert that Plaintiff fails to plead the form of the contract. Defendants are mistaken. Plaintiff expressly alleges that the contract was oral and was made on March 25, 2014. (SAC ¶ BC-1(a).)

Moving Defendants next contend that the statute of frauds bars the first cause of action. This argument is also unavailing. The Statute of Frauds states applies to “[a] contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars[.]” (Civ. Code, § 1624, [emphasis added].) Here Plaintiff has alleged an $85,000 investment and an investment of $15,000 of meat product, for a total of exactly $100,000. The alleged total investment is not an amount greater than $100,000. Accordingly, the statute of frauds does not apply.

Moving Defendants next contend that the statute of limitations bars the first cause of action.

Where the dates alleged in the complaint show that the action is barred by the statute of limitations, a general demurrer lies.  (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) However, when nothing appearing on the face of the complaint suggests that the action is barred by the statute of limitations, there are no grounds for a demurrer. (Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.)  Further, a demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred.  (Valvo v. University of Southern California (1977) 67 Cal. App. 3d 887, 895.  Instead, it must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.  (Id.)  

Here, Moving Defendants cite to the two-year statute of limitations for oral contracts (pursuant to CCP § 339) and argue that the complaint is time-barred as of December 31, 2016. However, it is not apparent from the SAC that the cause of action is time-barred. Plaintiff initiated this action on September 2, 2016 with the filing of the original complaint. The causes of action of the SAC all appear to relate to the original complaint, which was filed prior to the expiration of the statute of limitations.[2] Accordingly, the causes of action of the SAC are not time-barred.

Finally, Moving Defendants contend that because the interest on the investment that Plaintiff has pled – 25% -- is usurious, it is uncollectable, and the cause of action as a whole fails to state a claim. However, a “demurrer may not be sustained, nor a motion for judgment on the pleadings granted, as to a portion of a cause of action.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.) A Defendant “may attack any portion of a cause of action that is ‘substantively defective on the face of the complaint ... by filing a motion to strike’” (Ibid, [internal citations omitted].)

The Court does agree that the alleged 25% interest is usurious as it exceeds the permitted percentage under the California Constitution XV Section 1. Accordingly, the claim for interest is void as a matter of law, and Plaintiff is entitled to repayment of the principal sum only. (Hardwick v. Wilcox (2017) 11 Cal.App.5th 975, 979.) Therefore, on the Court's own motion, the claim for 25% interest is stricken from the SAC. (CCP §436(b).)

Second Cause of Action: Common Counts

Moving Defendants argue that the second cause of action for common counts is contradictory to the first amended complaint and that it fails to state a cause of action.

“A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454, [internal citations omitted].) “A cause of action for money had and received is stated if it is alleged [that] the defendant ‘is indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.’” (Ibid, [internal citations omitted], [alterations in original].) For a complaint, the plaintiff must allege that “defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the money was not used for the plaintiff's benefit, and that the defendant has not given the money to the plaintiff.” (Ibid, [internal citations omitted], [alterations in original].) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.)

Moving Defendants contend that the second cause of action is directly contradictory to the first cause of action, which alleges that the funds and goods were provided on March 25, 2014. Moving Defendants argues that this alleged date of March 25, 2014 of the first cause of action contradicts the allegation of the second cause of action that Defendants became indebted to Plaintiff within the last two years. (See SAC, ¶ CC-1(b).) However, these allegations in fact do not directly contradict each other as one becomes indebted when payment is due under the contract -- not on the formation of the Contract. Moreover, even if the factual assertions were contradictory, this would not serve as a proper basis to sustain Defendants’ demurrer to the second cause of action as parties may plead in the alternative. Therefore, Moving Defendants’ demurrer to the second cause of action is overruled.

Third Cause of Action: Fraud

Moving Defendants argue that the third cause of action fails because Plaintiff has failed to allege fraud with the requisite specificity, and the economic loss rule prohibits recovery[3].

Specificity

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

Plaintiff has failed to sufficiently plead intentional misrepresentation against Moving Defendants. Intentional misrepresentation requires the defendant to represent a material fact as true when it is actually false and also requires that the defendant knew the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth. (See Manderville v. PCG & S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498.) Here, there are no factual allegations setting forth any false misrepresentations that were made on behalf of any of the Moving Defendants. Plaintiff merely alleges that “Defendants” made representations of material facts to Plaintiff that Habana Vieja Cuban Restaurant was a very successful business without specifying which defendants made the representations, or how when, where, to whom, and by what means the representations were made. (SAC, ¶ FR-2(a) .) Given that fraud must be specifically pled, the general reference to “Defendants” is insufficient. Accordingly, the demurrer to the third cause of action is SUSTAINED.

Motion to Strike

Moving Defendants move to strike each cause of action for the entirety of Paragraphs: BC-1, BC-2, BC-4, CC-1, CC-2, FR-1, FR-2, FR-3, FR-4, FR-5, and FR-6 Given that the demurrer to the SAC is sustained as to the third cause of action, the motions to strike as to those sections, FR-1, FR-2, FR-3, FR-4, FR-5, and FR-6, are MOOT.

With regard to the first and second causes of action as discussed above, Plaintiff has stated proper causes of action, and there is no basis to strike the entirety of any of the paragraphs identified by Moving Defendants. Accordingly, Moving Defendants’ motions to strike is DENIED as to paragraphs BC-1, BC-2, BC-4, CC-1, and CC-2 of the SAC.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of a 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. Kennedysupra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

Plaintiff has already previously been given the opportunity the amend his complaint as to the lack of specificity of his fraud allegations. (See 8/8/19 Order ruling on demurrer to FAC.) The SAC does not include any more specific factual allegations than the FAC to which a demurrer was sustained on the same precise ground of lack of specificity as to the fraud allegations. Plaintiff has also failed to file any opposition to the instant demurrer. Accordingly, the Court finds that Plaintiff has failed to demonstrate how the complaint can reasonably be amended to state a fraud cause of action, and the Court declines to grant leave to amend at this time. If at a later time Plaintiff becomes aware of additional facts that would enable Plaintiff to allege fraud with specificity, Plaintiff may bring a noticed motion seeking leave to amend to re-add his fraud claim at that time.

Conclusion and ORDER

Moving Defendants’ demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for fraud. Moving Defendants’ demurrer to the First Cause of Action and Second Cause of Action is OVERRULED.

Moving Defendants’ motion to strike paragraphs FR-1, FR-2, FR-3, FR-4, FR-5, and FR-6, of the SAC is MOOT

Moving Defendants’ motion to strike paragraphs BC-1, BC-2, BC-4, CC-1, and CC-2 of the SAC is DENIED.

On the Court's own motion claim, the phrase “and a 25% interest on the amount invested until paid back” is stricken from paragraph BC-1 (a).

Moving Defendants are to file an answer within 10 days.

Moving Parties are ordered to give notice and file proof of service of such.

DATED: January 31, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The Court disagrees. Though a joint share of profits and losses is required to establish a partnership, “[a]n agreement for division of profits implies, of course, an agreement also to bear the losses.” (Sandberg v. Jacobson (1967) 253 Cal.App.2d 663, 668.) Hence, an allegation that the parties agreed to share profits implies an agreement to share losses, and Plaintiff need not expressly allege an agreement to share losses where he has alleged an agreement to share profits.

[2] “The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408–409, [internal citations omitted].)

[3] The economic loss rule posits that a purchaser of a product that does not live up to the buyer’s expectations can only recover in contract and not tort, “unless [the purchaser] can demonstrate harm above and beyond a broken contractual promise.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130 (quoting Robinson Helicopter Company, Inc. v. Dana Corporation (2004) 34 Cal.4th 979, 988), [emphasis added].) There is no allegation of a purchase of any product; therefore, the economic loss rule does not apply.