Chan v. Matthew doing business as Pain Management Care

Defendants Merus Case, LLC and LegalTech, LLC, apply for an order granting David F. Pustilnik admission to appear pro hac vice on their behalf. The application is unopposed. Defendants have complied with all procedural and statutory requirements. Thus, the Court grants David F. Pustilnik's application to appear on behalf of Defendants Merus Case, LLC and LegalTech, LLC.

I. Montgomery Department 516 Hearing Date: September 4, 2026 Case Name: Chan v. Matthew doing business as Pain Management Care Case No.: 26STCV11203 Matter: Demurrer with Motion to Strike Moving Party: Defendant Matthew doing business as Pain Management Care Responding Party: Plaintiff Tony Chan Tentative Ruling: Defendant Matthew doing business as Pain Management Care's demurrer is sustained in its entirety. Defendant Matthew doing business as Pain Management Care's motion to strike is rendered moot.

Plaintiff Tony L. Chan ("Plaintiff") filed this action against Matthew doing business as Pain Management Care ("Defendant") and Does 1 to 10. The First Amended Complaint ("FAC") alleges three causes of action for: (1) declaratory relief; (2) breach of lease agreement (failure to comply with renewal provisions); and (3) breach of lease provisions (insurance obligations). Defendant demurs to Plaintiff's FAC and moves to strike portions of the pleading. Plaintiff opposes.

Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.¿(Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿The purpose of a demurrer is to challenge the

sufficiency of a pleading by raising questions of law.¿(Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)¿"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., Sec. 452.)¿The court "'"treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . ."'"¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.¿(Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court."¿(Code Civ. Proc., Sec. 436.) "Immaterial" or "irrelevant" matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ.

Proc., Sec. 431.10, subds. (b)(1)-(3).) Request for Judicial Notice Defendant requests that the Court take judicial notice of Plaintiff's Complaint and FAC. The Court grants Defendant's request for judicial notice pursuant to Evidence Code section 452, subdivision (d).

Analysis

Meet and Confer Pursuant to Code of Civil Procedure section 430.41, "a demurring party is required to meet and confer in person, by telephone, or video conference with the party that filed the pleading. . . ." (Code Civ. Proc. Sec. 430.41, subd. (a).) A moving party in a motion to strike must meet and confer before filing the motion. (Code Civ. Proc. Sec.435.5, subd. (a).) Defendant contends that the parties met and conferred through letter. (Mackay Decl., P.P. 6-9.) Thus, the parties did not meet and confer as required by the statute to "meet and confer in person, by telephone, or video conference." (Code Civ.

Proc. Sec. 430.41, subd. (a).) In the interest of judicial efficiency, the Court will address the merits of Defendant's demurrer and motion to strike. Preliminary Issues "Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages." (Cal. Rules of Court, rule 3.1113(d).)

Plaintiff filed a 22-page memorandum, which exceeds the length permitted by the California Rules of Court. Plaintiff did not explain why its memorandum exceeded 15 pages. Nor has the Court granted Plaintiff permission to exceed the page limit. The Court is not required to accept the parties' papers that exceed the procedural page limit. Thus, the Court will not consider the opposition after the first 15 pages. Demurrer Defendant demurs to Plaintiff's FAC on the grounds that the FAC is a sham pleading, is uncertain, and Plaintiff fails to allege sufficient facts.

Sham Pleading "Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers." (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) "A noted commentator has explained, '[a]llegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.' " (Id. at p. 425-26.)

The Court is not persuaded by Defendant's argument. First, Defendant made an undeveloped argument to the Court, and the Court is unable to ascertain the basis for making such argument. Thus, the demurrer is overruled based on the argument the FAC is a sham pleading. Uncertainty Per Code of Civil Procedure section 430.10, subdivision (f), a demurrer must be sustained if a pleading is uncertain. (Code Civ. Proc., Sec. 430.10, subd. (f).) The term uncertain means "ambiguous and unintelligible." (Ibid.)

However, demurrers for uncertainty will not be sustained unless "'the pleading is so incomprehensi[ve] that a defendant could not reasonably respond.'" (A. J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, quoting Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn.3 (A.J. Fistes Corp.).) In looking at the FAC as a whole, it is not incomprehensible. The FAC alleges sufficient facts for Defendant to respond. Thus, the Court overrules the demurrer on this basis.

Fails to Allege Sufficient Facts Second Cause of Action

The elements of a cause of action for breach of contract are: "(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Defendant contends that Plaintiff has failed to attach a copy of the lease or any contractual obligation that was breached. The FAC contains contradictory allegations as to whether a breach of Section 1.02 of the Lease occurred.

The FAC alleges that Plaintiff "proposed objective methods for determining fair market value," but also that "Plaintiff accepted Defendant's proposal," that the renewal rent to be determined through the use of a neutral MAI-designated appraiser. (FAC, P.P. 11, 27-28.) Defendant contends that the dispute between the parties is a separate agreement regarding the rental valuation. However, the Court is not persuaded by this claim. The attached lease agreement states that: Section 1.02. Option to Extend Term.

Landlord will grant first 1 option to extend the lease for a period of five (5) years for each option. The base rent will be renegotiated if and when an option to extend the lease is exercised. (FAC, Ex. A.) Defendant also argues that Plaintiff has no viable cause of action because an agreement to renegotiate is not actionable. Defendant cites to Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1256.) In Copeland, the Court determined that: A contract to negotiate the terms of an agreement is not, in form or substance, an "agreement to agree."

If, despite their good faith efforts, the parties fail to reach ultimate agreement on the terms in issue the contract to negotiate is deemed performed and the parties are discharged from their obligations. Failure to agree is not, itself, a breach of the contract to negotiate. A party will be liable only if a failure to reach ultimate agreement resulted from a breach of that party's obligation to negotiate or to negotiate in good faith. For these reasons, criticisms of an "agreement to agree" as "absurd" and a "contradiction in terms" do not apply to a contract to negotiate an agreement. (Copeland v.

Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1256.) Here, Plaintiff has not alleged that Defendant did not engage in good faith negotiations or failed to negotiate. The FAC alleges the opposite: that Defendant did engage in negotiations. (FAC, P. 29.) In opposition, Plaintiff contends that the FAC alleges the obligations under the lease. Plaintiff cites to Section 1.02 of the Lease. However, the Court is not persuaded. The provision only states that, if the "option to extend" the lease is exercised, the parties agree to renegotiate the rent.

The lease does not include any method for determining the rate or a process for resolving disputes if the parties do not agree. Plaintiff

also argues that Copeland does not apply because the case involved preliminary agreements. However, Plaintiff provides no legal authority to support his argument. Additionally, Plaintiff argues that the dispute is "the proper construction" of provision 1.02. (Opp., 3:5-8.) Thus, the demurrer is sustained. Third Cause of Action Section 12.03(c) states: (ii) Certificates of Insurance. Tenant will deliver to Landlord certificates of insurance for all insurance required to be maintained by Tenant no later than the Commencement Date.

Tenant will, at least thirty (30) days prior to expiration of the policy, furnish Landlord with certificates of renewal or binders. If Tenant fails to maintain any insurance required in this Lease, Tenant will be liable for all losses and costs resulting from that failure; Landlord will have the right, but not the obligation, to obtain insurance on behalf of Tenant, and Tenant will immediately on demand pay Landlord the premiums on the insurance; and Landlord may declare a default under this Lease. (FAC, Ex.

A.) Similarly, Defendant contends that Plaintiff did not allege a breach of the insurance provision because the only allegations are that, upon request, Defendant did not produce documents. (FAC, P.P.34-35.) The allegations do not support an alleged breach of the provision because they do not state that Defendant lacked insurance. Paragraph 36 is based on information and belief that Defendant failed to maintain coverage. (FAC, P. 36.) "[A] complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts." (Doe v.

City of Los Angeles (2007) 42 Cal.4th 531, 550.) "Moreover, "[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true." (Ibid.) Here, Plaintiff does not provide information to support his allegations based on "information and belief that Defendant did not have insurance. In opposition, Plaintiff argues that he is not required to prove his claim at this stage, and that Defendant's argument that Plaintiff does not allege that he complied with the contractual precedent and opportunity to cure.

The Court finds that the allegations are insufficient to allege a viable cause of action. Plaintiff does not allege any damages for its alleged breach of the contract provision, and provides no legal authority to dispute that he is not required to. Additionally, Plaintiff is alleging a claim against Defendant for breach of the lease as to whether Defendant had insurance or did not. Plaintiff has not provided the Court with any authority to support that his allegations are sufficient. Thus, the Court sustains the demurrer as to the third cause of action.

First Cause of Action "[D]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them." (Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) Defendant argues that Plaintiff seeks to redress alleged past breaches. Plaintiff is seeking a declaration from the Court on whether prior conduct modified the lease; this is a past wrong.

Moreover, assuming Plaintiff were to allege his second and third causes of action, they would also be duplicative of alleged breaches of the lease. In opposition, Plaintiff argues that the parties have a written agreement in dispute. "Code of Civil Procedure section 1060 is clear: "Any person interested under a written instrument, ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court ... for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract." (Ludgate Ins.

Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 605.) The Court finds that Plaintiff has not alleged sufficient facts to support his claim for declaratory relief. Plaintiff relies on the allegations also made under the breach-of-contract claim, but those allegations are not incorporated as to the first cause of action. Assuming Plaintiff can allege a viable breach of contract claim, the Court notes that because the dispute arises from the same incident, the causes of action seek duplicative relief.

Thus, the Court sustains Defendant's demurrer as to the first cause of action. Motion to Strike Defendant moves to strike the following paragraphs in the FAC: (1) P. 9; (2) P. 14; (3) P. 28; (4) P. 29; (5) P. 30; (6) P. 36; (7) P. 37; (8) prayer for relief P.P. 4 and 5. Here, because the Court sustained Defendant's demurrer as to all three causes of action in the FAC, the motion to strike is rendered moot. Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v.

Kennedy (1976) 18 Cal.3d 335, 349 [court shall not "sustain a demurrer

without leave to amend if there is any reasonable possibility that the defect can be cured by amendment"]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 ["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."]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 ["When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend."].) The burden is on the complainant to show the Court that the pleading can be successfully amended. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court finds that Plaintiff has met his burden of establishing that leave to amend should be granted. The Court will allow Plaintiff the opportunity to amend his FAC.

Conclusion

Defendant Matthew doing business as Pain Management Care's demurrer as to the first, second, and third causes of action is sustained. Defendant Matthew doing business as Pain Management Care's motion to strike is Rendered moot. Plaintiff shall have leave to amend and must file an amended pleading by October 5, 2026. | Home -->)" -->