JAY MELDMAN VS TANK TOP DOG LLC

Tentative Rulings

Case Number: *******9957 Hearing Date: August 29, 2022 Dept: 61

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant demurrers to the fourth cause of action for breach of employment contract on the grounds that no facts are pleaded to suggest what precise terms or obligations Defendant breached. (Demurrer at pp. 2–4.)

Defendant has simply failed to read the Complaint. The Complaint alleges that Plaintiff and Defendant orally agreed to a term of employment of at least one year, to be terminated only for good cause within that time, and that such for-cause agreement was corroborated in the writings attached as exhibits to the Complaint. (Complaint 44–50, Exh. B.) Although Defendant notes that at-will employment is presumed, Defendant neglects that the at-will rule applies only to employment contracts “having no specified term.” (Lab. Code 2922.) Plaintiff alleges that the parties specifically agreed to for-cause termination, at least within a one-year period. Defendant’s argument is without merit.

In reply, Defendant argues for the first time that the contract is barred by the statute of frauds, specifically that provision requiring agreements necessarily performed in excess of a year from execution to be memorialized in writing. (Reply at pp. 4–5, citing Newfield v. Insurance Co. of the West (1984) 156 Cal.App.3d 440, 446.)

This argument furnishes no basis to sustain the demurrer, however, both because it is offered only in reply, and thus without providing Plaintiff with an opportunity to rebut it, and also because it is wrong on the substance. For one, the agreement that Plaintiff alleges is memorialized in writings, attached to the Complaint and interpreted in Plaintiff’s allegations. (Complaint Exh. B.) What’s more, although Defendant cites the Newfield case, which indeed held long-term employment contracts to fall within the statute of frauds, Defendant also, perhaps inadvertently, cites the California Supreme Court case which explicitly overruled the Newfield decision and held long-term for-cause termination contracts to be outside the ambit of the statute of frauds. (Reply at p. 5, citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 673 [“Because the employee can quit or the employer can discharge for cause, even an agreement that strictly defines appropriate grounds for discharge can be completely performed within one year—or within one day for that matter.”].) The agreement described in the Complaint is thus concrete in the obligations described and not subject to the statute of frauds. Defendant’s demurrer is meritless and OVERRULED.