Demurrer to Complaint; Motion to Strike
regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves." (15 Williston on Contracts (3d ed. 1972) 1763A, pp. 226-227; see also A & M Produce Co., supra, 135 Cal. App. 3d at p. 487.) In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. [Emphasis Added] Because there is only a small degree of procedural and substantive unconscionability, the motion is granted. Accordingly, the case is stayed. Defendants shall prepare and submit a form of order consistent with this ruling within 2 weeks.
9-10. 26CV01568 Burger Hut Inc v. Williams, Priscilla K et al
EVENT: (1) Demurrer of Defendants Reuben James Williams and Priscilla K. Williams to Complaint (2) Defendants’ Motion to Strike
Defendants’ request for judicial notice filed in conjunction with the moving papers is granted. Defendants’ supplemental request for judicial notice filed in conjunction with the reply is denied. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537[The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.])
Demurrer
Breach of Contract Cause of Action Defendants argue Exhibit B to the Complaint is nothing more than an offer. The Court disagrees. While the document indicates at the beginning that it is an offer, the end of the document provides signature lines for plaintiffs with the important notation “accepted by”. Defendants contend Exhibit B is unenforceable because it provides no time for performance. Civ. Code § 1657. Time of performance of contract If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly— as, for example, if it consists in the payment of money only—it must be performed immediately upon the thing to be done being exactly ascertained.
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Per Civ. Code 1657, the failure to provide a time for performance does not render the contract unenforceable. Additionally, the document addresses the essential terms of price and subject matter. On the issue of whether the Reuben James Williams and Priscilla K Williams Trust is a necessary party, the Court finds that it is. One of the material terms is that past rent due will be forgiven. As Defendants note, only the trust has authority to satisfy that obligation. Accordingly, the demurrer is sustained with leave to amend on this ground for Plaintiffs to name the trust as a defendant.
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Promissory Estoppel Preliminarily, for the same reasons discussed in the breach of contract discussion, the Court rejects Defendants’ argument that the terms are not definite. As to whether the Complaint sufficiently alleges facts supporting reliance, while a close call, the Court finds paragraph 31 sufficiently alleges ultimate facts supporting reliance. With respect to the argument that the breach of contract allegations (which include bargained for consideration) are inconsistent or mutually exclusive to promissory estoppel, when a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1222) Accordingly, the demurrer is overruled.
Fraud The demurrer is sustained with leave to amend. It is well settled that fraud must be pled with specificity. The Complaint does not sufficiently plead the intent element. Something more than nonperformance is required to prove the defendant's intent not to perform his promise. (Tenzer v. Superscope (1985) 39 Cal.3d 18, 30) To be sure, fraudulent intent must often be established by circumstantial evidence. Prosser, for example, cites cases in which fraudulent intent has been inferred from such circumstances as defendant's insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform. (Id)
Motion to Strike The motion is granted in its entirety with leave to amend.
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Regarding punitive damages, the Court’s ruling sustaining the demurrer to the fraud cause of action necessarily requires striking the punitive damages allegations. There are no facts supporting malice or oppression. As to attorney fees, it is well settled that attorney fees may be obtained only through written contract or based on statute. The opposition does not address the fact that there is no attorney fee provision included in the contract. As such the complaint fails to allege a legal basis supporting an award of attorney fees. To the extent leave to amend is granted, Plaintiffs, if they so choose, shall amend within 20 days’ notice of this order. If Plaintiffs elect not to amend, Defendants shall file an answer within 20 days thereafter. Defendants shall prepare and submit a form of order consistent with this ruling within two weeks.
11. 26CV01619 In re: Jackson, Melissa
EVENT: Change of name (minor)
The Court will hear from Petitioner. The Court is in receipt of the proof of publication. CCP 1277(f) requires petitioner serve the petition on any living parents, and if the parents cannot be located, then the grandparents, if living, are to be served.
12. 26CV01761 Estrella, Jaime
EVENT: Change of name (adult)
As of this writing the Court is awaiting the results of the background check.
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