2018-00244754-CU-BC

Lucy Chua vs. Franklin Ganal

Nature of Proceeding: Hearing on Demurrer

Filed By: Mahon, Michael D.

Defendant Franklin Ganal’s (Ganal) demurrer to the complaint is SUSTAINED with leave to amend; sanctions denied.

Plaintiff Lucy Chua’s (Chua) request for judicial notice is granted.

This is an action for breach of a loan agreement in the amount of $30,000. Chua alleges that she loaned Ganal $30,000 and that he only repaid $1,800. Chua alleges that the loan agreement is written and that a copy of the agreement is attached to the complaint. The attachment, however, is a 1992 memorandum providing that Chua will receive $30,000 of Ganal’s life insurance proceeds should he die. The attachment

directs Ganal’s wife to pay the $30,000 in life insurance proceeds. It also provides that Chua “has control over all personal properties inside [Ganal’s] house.”

Ganal asserts that he is alive and, therefore, that a condition needed to trigger any obligation to pay Chua is not ripe. The complaint does not contain an allegation that Ganal has died. Nor is there any allegation that Ganal was required to repay the loan before he died.

The demurrer is sustained because Chua has not alleged facts establishing Ganal’s breach. As noted above, she alleges that the contract consists of a writing entitling her to insurance proceeds and control over personal property. That writing, however, does not entitle Chua to repayment from any source other than life insurance proceeds upon Ganal’s death.

In opposition to the demurrer, Chua suggests that the memorandum attached to the complaint is a security instrument reflecting a separate loan agreement. But that is not what Chua has alleged in the complaint. Instead, she has alleged that the written memorandum is the contract. As previously indicated, the memorandum does not provide for repayment of the loan until Ganal’s death.

Chua also argues in opposition that Ganal’s answer contains a concession that he received the loan. Again, however, the materials before the court do not establish that Ganal breached any obligation to repay the loan while is alive.

No later than 2/15/19, Chua may file and serve a first amended complaint (FAC) in an attempt to cure the defects in her complaint; response(s) due within 30 days thereafter, 35 days if the FAC is served by mail.

Although not required by any statute or rule of court, Chua is requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.

If any defendant intends to demur to the FAC or move to strike, (s)he/it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the FAC shall be included with the moving papers.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC .1312 is required.