Case Number: KC066576 Hearing Date: May 22, 2014 Dept: O

Gaytan v. Morales, et al. (KC066576)

1. Defendant Morales’s DEMURRER TO PLAINTIFF’S COMPLAINT

Respondent: NO OPPOSITION

2. Defendant Morales’s MOTION TO COMPEL ANSWERS TO FORM INTERROGATORIES

Respondent: NO OPPOSITION

TENTATIVE RULING

1. Demurrer

Defendant Morales’s demurrer to plaintiff’s complaint is SUSTAINED. The court will hear from Plaintiff regarding any requests for leave to amend.

UNCERTAINTY:
Demurrer on grounds of uncertainty will not be sustained unless the complaint is so bad that the defendant cannot reasonably respond. (Koury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

The court finds the complaint is so uncertain, Defendants cannot reasonably respond. Plaintiff appears to allege fraud, but the complaint only asserts a Breach of Contract cause of action. Further, as set forth below, the Breach of Contract cause of action does not state sufficient facts to constitute a cause of action.

BREACH OF CONTRACT:
The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct. (CCP 430.10(g).)

Plaintiff alleges that she sold her home to Defendant for $4,700, but Defendant did not change the home into his name, which resulted in her credit being ruined. However, Ex. 3 is the Grant Deed, showing that the transfer was a bonafide gift from Plaintiff to Defendant. Plaintiff has not alleged that the parties entered into a separate contract requiring Defendant to obtain a mortgage to release the then existing mortgage that was in Plaintiff’s name.

Accordingly, demurrer is SUSTAINED.

2. Motion to Compel

Defendant Morales’s motion to compel answers to form interrogatories is GRANTED. Plaintiff is ordered to respond to discovery without objections within 10 days. Sanctions are imposed against Plaintiff in the sum of $1,140.00 payable within 30 days.

CCP 2030.290(b) allows the propounding party to file a motion to compel responses to interrogatories if a response has not been received. If responses are untimely, responding party waives objections. (CCP 2030.290(a).)

Plaintiff failed to serve any responses. Plaintiff is ordered to respond to discovery without objections within 10 days.

Sanctions: CCP 2023.010(d) and 2030.290(c) authorize the court to impose sanctions for failure to respond to discovery without substantial justification.

Here, sanctions are appropriate because Plaintiff failed to serve any responses to discovery. The court finds Defendant’s request of $1,140.00 is reasonable. Sanctions are imposed against Plaintiff in the sum of $1,140.00 payable within 30 days.