2012-00134712-CU-BC

Anwar Ali vs. I Design

Nature of Proceeding: Hearing on Demurrer

Filed By: Vorobyov, Veronika

Defendant’s demurrer to the complaint is SUSTAINED with leave to amend, as follows.

This action arises out of plaintiff’s dissatisfaction with defendant’s performance of a
contract to cater a wedding. Neither plaintiff nor defendant is represented by counsel.

The complaint, although it includes extraneous and duplicative material, apparently
attempts to plead a single cause of action for breach of contract against defendant.
The complaint concludes with a prayer for $500,000 in damages as well as both
punitive and exemplary damages.

However, the complaint nowhere specifically states whether the alleged contract with
defendant was written or oral, or both. Moreover, the allegations in the complaint add
to the uncertainty relating not only to the nature of the contract on which this action is
based but also to its specific terms, which are essential to determine whether any
breach of the contract actually occurred. (See, Levy v. State Farm Mut. Auto. Ins. Co.
(2007) 150 Cal.App.4th 1, 5 [breach of contract must be pleaded with factual specificity
which affirmatively demonstrates breach of a material contract term].)

Additionally, although the complaint specifically alleges defendant was paid $7,000 to
cater the wedding, it remains unclear whether this payment constitutes the complete
performance of plaintiff’s obligations under the contract with defendant or whether
plaintiff’s further performance of the contract was excused. Without an allegation that
plaintiff fully performed the alleged contract or that he was excused from performing,
the breach of contract claim remains subject to demurrer. For these reasons, the demurrer to the complaint is sustained.

The Court notes defendant’s demurrer also challenges several of the damages
claimed in the prayer. While it appears that several of the damages sought are not
properly recoverable on a breach of contract theory, a demurrer is not the proper
vehicle by which to object to the damages being claimed. Instead, a motion to strike
must be filed and served.

Since this is the first challenge to the complaint, leave to amend is granted. Plaintiff
may file and serve an amended complaint no later than 11/27/2013. Although not
required by court rule or statute, plaintiff is directed to present a copy of this
order when the amended complaint is presented for filing.

Defendant to respond within 10 days if the amended complaint is personally served,
15 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)