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18-CIV-02773 ZAHAVA STROUD VS. MARK PALERMO, ET AL.

ZAHAVA STROUD MARK PALERMO
PAUL K. LEE SHANNON B. JONES

HEARING ON DEMURRER TENTATIVE RULING:

The Demurrer of Defendants Mark Palermo and TCGSC, Inc. (“Defendants”) to the Complaint of Plaintiff Zahava Stroud (“Plaintiff”) is SUSTAINED WITH LEAVE TO AMEND.

Defendants demur to the Fifth Cause of Action for Breach of Contract based on failure to allege facts sufficient to support this claim. (See Code of Civ. Proc. § 430.10(e).)

The elements of a breach of contract claim are: (1) the existence of the contract; (2) plaintiff’s performance or excuse for failing to perform; (3) the defendant’s breach; and (4) plaintiff’s damages. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.)

This claim alleges that Plaintiff and Defendant Palermo entered into an oral and written contract. (Complaint ¶ 52.) Plaintiff fails to allege sufficient facts to support either an oral or written contract with Palermo though.

For 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 has not done either.

Further, for breach of an oral contract, Plaintiff alleges that Palermo agreed to be her agent and find her a home she could rent on a short term basis and breached the contract by failing to find her such a home. As pled, such an oral contract is subject to the Statute of Frauds. An oral agreement employing an agent, broker, or any other person to purchase or sell real estate is invalid unless the agreement, some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party’s agent. (Civil Code sec. 1624(a)(4).) Plaintiff claims that she will be able to amend to provide emails or other writings to support such a contract though, and therefore is given leave to amend.

Plaintiff is to file and serve a First Amended Complaint by no later than May 13, 2019.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written 18-CIV-02773 ZAHAVA STROUD VS. MARK PALERMO, ET AL.

ZAHAVA STROUD MARK PALERMO
PAUL K. LEE SHANNON B. JONES

HEARING ON DEMURRER TENTATIVE RULING:

The Demurrer of Defendants Mark Palermo and TCGSC, Inc. (“Defendants”) to the Complaint of Plaintiff Zahava Stroud (“Plaintiff”) is SUSTAINED WITH LEAVE TO AMEND.

Defendants demur to the Fifth Cause of Action for Breach of Contract based on failure to allege facts sufficient to support this claim. (See Code of Civ. Proc. § 430.10(e).)

The elements of a breach of contract claim are: (1) the existence of the contract; (2) plaintiff’s performance or excuse for failing to perform; (3) the defendant’s breach; and (4) plaintiff’s damages. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.)

This claim alleges that Plaintiff and Defendant Palermo entered into an oral and written contract. (Complaint ¶ 52.) Plaintiff fails to allege sufficient facts to support either an oral or written contract with Palermo though.

For 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 has not done either.

Further, for breach of an oral contract, Plaintiff alleges that Palermo agreed to be her agent and find her a home she could rent on a short term basis and breached the contract by failing to find her such a home. As pled, such an oral contract is subject to the Statute of Frauds. An oral agreement employing an agent, broker, or any other person to purchase or sell real estate is invalid unless the agreement, some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party’s agent. (Civil Code sec. 1624(a)(4).) Plaintiff claims that she will be able to amend to provide emails or other writings to support such a contract though, and therefore is given leave to amend.

Plaintiff is to file and serve a First Amended Complaint by no later than May 13, 2019.

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18-CIV-02773 ZAHAVA STROUD VS. MARK PALERMO, ET AL.

ZAHAVA STROUD MARK PALERMO
PAUL K. LEE SHANNON B. JONES

THE MOTION OF DEFENDANTS MARK PALERMO AND TCGSC, INC. (“DEFENDANTS”) TO STRIKE PORTIONS OF THE COMPLAINT OF PLAINTIFF ZAHAVA STROUD TENTATIVE RULING:

The Motion of Defendants Mark Palermo and TCGSC, Inc. (“Defendants”) to Strike Portions of the Complaint of Plaintiff Zahava Stroud (“Plaintiff”) is ruled on as follows:

The Motion to Strike paragraphs 26, 33, 42 and 49 concerning unusual maintenance and consultant’s fees, and the prayer for professional and technical fees, is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff fails to oppose the motion as to these fees, and thus has not established she will be able to amend to allege facts to support she may recover these fees.

The Motion to Strike paragraph 50 and the prayer for exemplary and punitive damages is GRANTED WITH LEAVE TO AMEND. As pled, Plaintiff fails to allege facts to support that Defendants acted with oppression, fraud or malice. (See Civil Code sec. 3294.) Plaintiff has alleged false statement by Defendant Palermo, see e.g. paragraphs 12, 18, 44, but fails to allege that Defendant Palermo knew that the allegation was false, an essential element to support a fraud predicate for punitive damages. See CACI 1900.

Plaintiff has until May 13, 2019 to amend her punitive damages allegations