Case Number: 18GDCV00168 Hearing Date: February 14, 2020 Dept: E

DEMURRER

[CCP §430.10 et. seq.]

Date: 2/14/20

Case: Tahmasian, et al. v. Business Strategies Solutions, et al. (18GDCV00168)

TENTATIVE RULING:

Defendants Business Strategies Solutions, Inc.’s, NetPay Plus+, Inc.’s, and Barbara J. Orem’s UNOPPOSED Demurrer to plaintiff George Voskanian’s First Amended Complaint (“FAC”) is OVERRULED. While a party who fails to oppose a demurrer does so at his peril, the Court must nonetheless address and determine whether the demurrer has merit, even if there is no opposition, whether it be due to strategy, choice, cost-saving, negligence, incompetence, lack of professionalism, malpractice, or some combination thereof.

On the merits, as a preliminary matter, the Court notes that plaintiff could serve the FAC electronically, because the parties, who are all represented by counsel, are required to file documents electronically. (Cal. Rules of Court, rule 2.251(c)(3) [providing generally that “a party or other person that is required to file documents electronically in an action must also serve documents and accept service of documents electronically from all other parties or persons”] [emphasis added].)

With respect to the first cause of action for Breach of Written Contract, failure to attach copies of documents evidencing damages does not render the FAC uncertain. A special demurrer for uncertainty must be “strictly construed” and only sustained where subject pleadings are so ambiguous and so unintelligible that they prevent a party from reasonably responding to the allegations before him or her. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the allegations in the FAC provide adequate notice of the nature of plaintiff’s lawsuit, specifically, that defendants’ vacating of the property before the end of the lease resulted in damages arising from defendants’ non-payment of rent and utilities. (FAC ¶¶ 19-21.)

The Court finds that the alter ego allegations against defendant Barbara J. Orem are sufficient. Plaintiff alleges Orem commingled funds with corporate defendants Business Strategies Solutions, Inc. and Netpay Plus+, Inc., used corporate funds to pay personal debts, underfunded the corporate defendants, controlled day-to-day operations of the corporate defendants, and failed to adhere to corporate formalities. (FAC ¶¶ 11-15; Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838–40.) The foregoing are factual averments that, if true, may support a finding that the defendants are alter egos of one another. Plaintiff also alleges that Orem underfunded the corporate entities to the point that they are judgment proof. (FAC ¶ 12.) The inability to collect a judgment constitutes an inequitable result that may support liability for Orem under an alter ego theory. (Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 816.)

Because the alter ego allegations against Orem are sufficient, the demurrer to the first cause of action for Breach of Written Contract is OVERRULED as to all defendants. Because the first cause of action is sufficiently stated, the demurrer to the second cause of action for Common Counts is OVERRULED as to all defendants as well.

Defendants Business Strategies Solutions, Inc., Netpay Plus+, Inc., and Barbara J. Orem are ordered to file an Answer to the First Amended Complaint within 10 days of this ruling.