Demurrers
26-1554736 12. Mito’s Holdings, Inc. v. Deniz Restaurants, LLC 25-1534622 Before the Court are three demurrers filed by defendants Deniz Restaurants, LLC (Deniz), Berkay Altintas (Berkay) and Nalan Altin tas (Nalan)(collectively, Defendants) to the complaint of plaintiff M ito’s Holdings, Inc. (Plaintiff). For the reasons set forth below, the demurrers by Deniz, Berkay and Nalan are SUSTAINED with 20 days’ leave to amend on the 8th cause of action and OVERRULED on the 9th, 10th and 12th causes of action. In addition, the demurrers by Berkay an d Nalan are SUSTAINED with 20 days’ leave to amend on the 6th cause of action.
A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civ. Proc. § 430.10, subd. (e).)
Demurrer by Deniz
8th cause of action (indemnification): Civil Code section 2772 provides:
“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.” Because an indemnity agreement is basically a contract, it is subject to all the requirements applicable to contracts in general. (Branson v. Sun Diamond Growers (1994) 24 Cal.App.4th 327, 347; see also San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 439 [elements of breach of contract].) Here, Plaintiff fails to adequately allege damages, i.e., that a third party h as filed a claim against Plaintiff arising out of Defendants’ alleged wrongful conduct. Plaintiff simply alleges exposure to “potential claims, demands and liability,” that has not materialized. (Compl. ¶ 164.) As such, the demurrer is SUSTAINED as to this cause of action with 20 days’ leave to amend.
9th and 10th cause of action (fraud claims): Defendant does not argue insufficiency of pleading allegations – only that these claims are duplicative of the breach of contract claim. Redundancy of a cause of action is not a ground on which a demurrer may be sustained. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890
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12th cause of action (intentional interference with prospective economic advantage): The Court finds Plaintiff adequately pleads the elements of this cause of action, including actual disruption that has caused damage to Plaintiff’s reputation and goodwill. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 [elements]; see also Compl. ¶¶ 209-216.) As such, the demurrer is OVERRULED as to this cause of action.
Demurrers by Berkay and Nalan
6th cause of action: Plaintiff fails to adequately plead actual disrupt ion of the contractual relationship and damages resulting from Defendants’ conduct. Instead, Plaintiff merely alleges “potential” disruption an d “potential damages. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 [elements]; see also Compl. ¶¶ 150-152.) As such, the demurrers are SUSTAINED as to this cause of action with 20 days’ leave to amend.
8th cause of action: The demurrers are SUSTAINED as to this cause of action for the same reasons Deniz’s demurrer is SUSTAINED. 20 days’ leave to amend is granted.
9th, 10th, 12th causes of action: The demurrers are OVERRULED as to these causes of action for the same reasons Deniz’s demurrer is OVERRULED.
Counsel for Defendants shall give notice of this ruling.
13. JSMPG LLC v. Qu 25-1423928 Defendant Shen Qu‘s (“Defendant”) Motion for Judgment on the Pleadings (“Motion”) regarding plaintiff JSMPG, LLC’s (“Plaintiff”) First Amended Complaint (“FAC”) is GRANTED.
Defendant moves for judgment on the pleadings as to the first two causes of action (“COA”) in the FAC based upon failure to state sufficient facts. (Civ. Proc. Code § 438.) “A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation omitted.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice.” (Wise v. Pac. Gas & Elec. Co. (2005) 132 Cal. App. 4th 725, 738, as modified (Sept. 19, 2005).)
1) COA No. 1 – Breach of Contract
“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant’s breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.)
Plaintiff attached Shareholder Universal Settlement Agreement (“Agreement”) to the FAC at Ex. A. The Agreement was entered between Plaintiff and one Open Corner LLC (“OCLLC”), which appears to have been signed by Defendant in his capacity as a member of OCLLC. The Agreement only states that all assets and liabilities of two different non-party companies, Birchhill Inc and Apure Pharma LLC,