Case Number: BC532263    Hearing Date: August 01, 2014    Dept: 34

Moving Party: Defendant Visa, Inc.

Resp. Party: Plaintiff Francisco Saez

Defendant’s demurrer to the first amended complaint is SUSTAINED. The Court will hear from plaintiff at the hearing as to whether he should be given another opportunity to amend his complaint.

PRELIMINARY COMMENTS:

Defendant demurred to the complaint. Plaintiff did not oppose the demurrer, and on April 30, 2014, the Court sustained the demurrer with leave to amend.

Defendant has demurred to the First Amended Complaint; this time plaintiff has opposed the demurrer, but his opposition was filed late. (See CCP § 1005(b).)

The Court disregards the declaration of defense attorney Jacob K. Poorman, filed with the demurrer. A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Poorman’s declaration and the exhibits attached thereto constitute extrinsic evidence. Defendant does not request the Court to take judicial notice of these items.

For similar reasons, the Court disregards the declaration and exhibits filed by Plaintiff with his opposition.

BACKGROUND:

Plaintiff Francisco Saez commenced this action on 1/3/14 against defendant for breach of contract and common counts. On 4/25/14, plaintiff filed a first amended complaint (“FAC”). Plaintiff alleges that defendant failed and refused to reverse charges on his credit card account in breach of its written agreement.

The hearing on this demurrer was originally scheduled for June 27, 2014. Plaintiff did not appear at that hearing. However, defense counsel indicated that he had spoke with plaintiff, and had agreed to continue the hearing to allow plaintiff, who was in pro per, to obtain counsel.

The court continued the hearing until August 1, 2014; the Court also indicated that if Plaintiff did not appear at the August 1st hearing, the court would dismiss the action.

As indicated above, plaintiff filed an untimely opposition on July 25, 2014. Although the Court continued the June 27, 2104 ato allow plaintiff to obtain counsel, his opposition was filed in pro per.

ANALYSIS:

Defendant generally demurs to plaintiff’s complaint on the ground that it fails to allege sufficient facts.

Plaintiff’s sole cause of action is for breach of contract. “[T]he 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 argues that this cause of action fails because defendant is not a party to the cardholder agreement. The FAC admits that defendant is not a party to the subject contract. (See FAC, BC-2.) Plaintiff alleges that defendant “is the named third party processor of the transactions undertaken by Defendant Banque Pour La Commerce Exterieur Lao (‘BCEL’) on Saez’s behalf” and that therefore plaintiff has privity of contract with defendant. (Ibid.) Plaintiff provides no authority which holds that an identified processor of transactions necessarily had privity of a contract to which it is not a party. The one case cited by plaintiff, Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 611 is not on point.

Even if plaintiff could establish that the contract was binding on defendant, plaintiff still fails to allege any other facts as to such agreement. Plaintiff fails to allege any terms of any agreement with defendant. There is no indication that defendant was obligated to reverse charges on plaintiff’s account.

Even if the court were to consider plaintiff’s declaration, the court would still sustain the demurrer. The fact that there is a “Visa” logo on the card (See Exh. A) does not make the Visa responsible for the bank’s actions in refusing to reverse a charge. Plaintiff also refers the Court to the section entitled “Fees Schedule for Visa Credit and Debit Card,” that is part of the contract between plaintiff and the Banque pour le Commerce Exterieur Lao. (See Exh. B.) The Court notes that, according to the contract, the Fee Schedule “is subject to change by the Bank from time to time.” Plaintiff’s argument might be valid if the contract stated that the fee schedule was subject to change by Visa – but it does not. The contract is one between Plaintiff and the Banque pour le Commerce Exterieur Lao.

The proper defendant in this case would be the Bank. Not Visa.

Defendant’s demurrer to the FAC is SUSTAINED without leave to amend.