Case Name: Laton v. Williams
Case No.: 1-14-CV-741178

Defendants Brian B. Williams and Paula Williams (collectively, “Defendants”) demur to the complaint (“Complaint”) filed by plaintiff Robert C, Laton (“Plaintiff”).

This is action for breach of contract. According to the allegations of the Complaint, in November 2009, Plaintiff and Defendants entered into an oral agreement for the latter to rent a house in Sunnyvale owned by Plaintiff on a month to month basis. (Complaint, ¶ 2.) Rent was initially $1,000 per month but was raised to $1,300 per month in January 2012. (Id.) On August 1, 2013, Defendants stopped paying rent. (Id., ¶ 4.) Consequently, on August 31, 2013, Defendants were served with a 60-day Notice to Terminate Tenancy. (Id., ¶ 5.)

On November 15, 2013, Defendants vacated the property. (Complaint, ¶ 6.) During their tenancy, Defendants subletted space within the house to additional tenants without Plaintiff’s permission and altered the interior in order to accommodate those individuals. (Id., ¶¶ 7, 8.) Defendants also caused additional damage to the property, including holes in the interior walls, damage to the flooring and carpets, tile damage and destruction of the kitchen cabinets. (Id., ¶ 9.) On December 9, 2014, Plaintiff filed the Complaint asserting a single cause of action for breach of contract. Plaintiff seeks to recover for unpaid rent and expenses incurred to repair the damage to the property caused by Defendants.

On February 5, 2014, Defendants filed the instant demurrer to the Complaint on the grounds of uncertainty, failure to state facts sufficient to constitute a cause of action and that there is another action pending between the parties on the same cause of action. (Code Civ. Proc., § 430.10, subds. (c), (e) and (f).)

As a threshold matter, Defendants contend that Plaintiff’s action is barred by the doctrine of res judicata due to the dismissal of a prior action filed by Plaintiff against Defendants in this court seeking the same recovery. On January 22, 2014, Plaintiff filed the action entitled Laton v. Williams, et al., Case No. 1-14-CV-259405, a limited civil case, which asserted a single cause of action for breach of contract based on the same allegations of non-payment of rent present in the instant unlimited action. Defendants filed a cross-complaint two months later for breach of contract and intentional misrepresentation. On October 23, 2014, Plaintiff’s complaint was dismissed without prejudice for failure to appear. Defendants argue that Plaintiff already had an opportunity to pursue his claims and should not be permitted to have a “second bite at the apple.” However, the law is clear that a dismissal without prejudice is not res judicata and thus is no bar to the plaintiff filing a new lawsuit. (See Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784.) Consequently, this argument is without merit.

Defendants also contend that their demurrer should be sustained because the aforementioned limited civil case is still pending. This contention is unavailing. A demurrer pursuant to subdivision (c) of Code of Civil Procedure section 430.10, i.e., there is another action pending between the same parties on the same cause of action, requires that an identical cause of action be involved in both suits such that judgment in the first action would be res judicata on the claim in the second. (See Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) While the limited case between the parties is still pending due to Defendants’ cross-complaint, the dismissal of Plaintiff’s complaint eliminated all of his affirmative causes of action, and thus removed the possibility of a judgment in the limited action which could be res judicata on Plaintiff’s claim in the instant lawsuit. The fact that some of the same issues may be involved in Defendants’ cross-complaint in the limited action and Plaintiff’s complaint in this unlimited case is not enough to meet the “same cause of action” requirement for a demurrer on this ground. (Id. [stating that issue preclusion is not enough to support sustaining a demurrer pursuant to Code of Civil Procedure § 430.10, subd. (c)].) Because the causes of action involved in both suits are not identical, Defendants’ demurrer to the Complaint on the ground that there is another action pending between the same parties is OVERRULED.

Finally, Defendants argue that the Complaint is uncertain and that Plaintiff fails to plead all of the elements of a breach of contract cause of action. Defendants’ assertion that the Complaint is uncertain is not persuasive; a demurrer for uncertainty will be sustained only where the allegations of the complaint are so unintelligible that the defendant cannot reasonably respond to them. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations of the Complaint do not qualify as such as the nature of Plaintiff’s claim against Defendants is abundantly clear. Consequently, Defendants’ demurrer to the Complaint on the ground of uncertainty is OVERRULED.

However, Defendants’ remaining contention, that Plaintiff has not pleaded all of the elements of a breach of contract claim, is well-taken. In order to state a cause of action for breach of contract, a plaintiff must plead facts establishing the following: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damages to the plaintiff as a result of the breach. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) Here, Plaintiff fails to plead his performance or excuse for nonperformance under the contract. Accordingly, Defendants’ demurrer to the Complaint on the ground of failure to state facts sufficient constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.