Case Name: Anthony Ray McFarland Sr. v. Joseph M. Benedict, et al.

Case No.: 1-14-CV-259539

Demurrer by defendants Fr. Joseph M. Benedict, Bishop Patrick McGrath, and The Roman Catholic Bishop of San Jose to Complaint of Plaintiff Anthony Ray McFarland Sr.

Defendants’ request for judicial notice in support of the demurrer is GRANTED, in part, and DENIED, in part. Defendants’ request that the court take judicial notice that The Roman Catholic Bishop of San Jose is an active California corporation which filed its Articles of Incorporation on March 20, 1981 and has an entity address of 1150 North First Street, Suite 100, San Jose, CA is GRANTED. (See Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1484—court takes judicial notice of a certificate of corporate status.) Defendants’ request that the court take judicial notice that The Roman Catholic Bishop of San Jose is the owner and holder of the fictitious business name, Diocese of San Jose, is GRANTED. (See Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Association of Governments (2008) 167 Cal.App.4th 1229, 1234, fn. 3—court takes judicial notice of fictitious business name statement.) Defendants’ request for judicial notice is otherwise DENIED.

On June 27, 2014, Plaintiff filed a “Rebuttal to Defendants’ Opposition [sic] to Demurrer to Complaint”, and a proof of service showing that it was served by mail the same day. Such service does not comply with Code of Civil Procedure section 1005(c), and in any event, the filing is, in essence, a surreply not authorized by the Code of Civil Procedure. The court has not considered this document.

Plaintiff alleges one cause of action for breach of an oral 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.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Defendants demur, among other reasons, on the ground that Plaintiff has not alleged valid consideration. Although consideration is presumed when the contract is written (Civ. Code, §1614), this statutory presumption does not apply to an oral contract. “In an action on an oral agreement, the essential element of consideration must normally be alleged.” (See 4 Witkin, California Procedure (5th ed. 2010) Pleading, §525 citing Acheson v. Western Union Tel. Co. (1892) 96 Cal. 641, 644.) Plaintiff fails to address this deficiency in his opposition.

Defendants also demur on the ground of uncertainty. The complaint, although purporting to state one cause of action for breach of contract, contains language which renders uncertain whether another cause of action has been combined with the contract claim.

Accordingly, the demurrer on the grounds that the pleading does not state facts sufficient to constitute a cause of action (Code Civ. Proc., §430.10, subd. (e)) and that the pleading is uncertain (Code Civ. Proc., §430.10, subd. (f)) is SUSTAINED with 10 days’ leave to amend.