Case Number: BC542355 Hearing Date: June 24, 2014 Dept: 34

Moving Party: Defendant James Jung (“defendant”)

Resp. Party: None

Defendant’s demurrer to plaintiff’s complaint is SUSTAINED with leave to amend.

BACKGROUND:

Plaintiff Woong Ki Kim commenced this action on 4/10/14 against defendant for breach of contract and common counts. Plaintiff alleges that defendant promised plaintiff to pay money from September 2013 to February 2014, that defendant did not pay the money until April 2014, and that plaintiff did not receive $50,000.00. (Compl., BC-1, 2, 4.)

ANALYSIS:

Defendant demurs to the complaint and the two causes of action contained therein on the grounds that plaintiff fails to allege sufficient facts and the complaint is uncertain.

First Cause of Action for Breach of Contract

The essential elements of a breach of contract claim are “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.) In this case, Plaintiff alleges a breach of an oral contract.

Plaintiff fails to allege sufficient facts to support the breach of contract claim. Plaintiff alleges the following facts: “Defendant promised Plaintiffs to pay money 6–months worth from September, 2013 February, 2014.” (Complaint, ¶ BC-1).

Later in the complaint, plaintiff alleges, “Defendant didn’t pay the money until April 9, 2014 to plaintiffs.” (Complaint, ¶ BC-2.) It is not clear if Defendant paid the promised amount. It is unclear how much money was to be paid or why defendant made such a promise.

Plaintiff further alleges that “Plaintiffs did not receive $50,000.” (Complaint, ¶ BC-4.) However, there are no allegations which show that the terms of the alleged agreement included an obligation to pay this amount. There are no allegations as to any consideration given by plaintiff for this promise.

Accordingly, defendant’s demurrer to the first cause of action is SUSTAINED.

Second Cause of Action for Common Counts

“[A] common count, by long continued practice is not subject to attack by general demurrer or by a special demurrer for uncertainty.” (Auckland v. Conlin (1928) 203 Cal. 776, 778. Accord Smith v. Bentson (1932) 127 Cal.App.Supp. 789, 791.” However, “[w]hen a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1560.)

Here, plaintiff’s second cause of action seeks the same recovery and appears to be based on the same facts as the first cause of action. (See Compl., CC-1.) Therefore, it fails for the same reason as the first cause of action.

Accordingly, defendant’s demurrer to the second cause of action is SUSTAINED.

Plaintiff may file an amended complaint within 10 days to correct these issues.