Case Number: BC674905 Hearing Date: March 20, 2018 Dept: 74

JOHN CHUNG,

Plaintiff,

vs.

HERON FAMILY TRUST, ET AL.,

Defendants

Case No.: BC674905

[TENTATIVE] ORDER SUSTAINING DEMURRER WITH LEAVE TO AMEND

TENTATIVE RULING: Defendants April Heidarian and Eiman Shekarchi’s demurrer to the third cause of action is SUSTAINED with 10 days’ leave to amend.

Discussion

Defendant demurs to the third cause of action for breach of contract.

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Plaintiff has failed to allege sufficient facts to state this cause of action against Defendants. Plaintiff has alleged the existence of a Business Purchase Agreement between the parties for sale of Ocean Park Novel Café, LLC to Defendants. (See FAC, ¶¶ 10, 36.) However, Plaintiff has failed to allege whether this agreement is written, oral, or implied by conduct. (See Code Civ. Proc., § 430.10(g).) Furthermore, it is still unclear whether the contingency that Defendants had to obtain a new lease of the premises from The Heron Family Trust is a term in the Business Purchase Agreement or if it was a condition that was separate from the agreement. Without clarifying whether the contingency is a term of the Business Purchase Agreement, Plaintiff has failed to demonstrate Defendants’ breach. Plaintiff has also failed to allege his performance or excuse from performance.

Defendants assert this cause of action is time-barred. Defendants’ assertion is unavailing. As discussed, Plaintiff has failed to allege whether the Business Purchase Agreement is written, oral, or implied by conduct. It is thus unclear whether the four-year statute of limitations or two-year statute of limitations applies. Assuming it is a written contract, as discussed in the prior ruling, Plaintiff’s breach of contract cause of action would have accrued on January 4, 2013, meaning this cause of action would generally be time-barred. However, Plaintiff has alleged that Defendants were absent from California “in excess of @45 [sic] days between January 4, 2013 and September 6, 2017.” (FAC, ¶ 18.) “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.” (Code Civ. Proc., § 351.) A tolling of at least 245 days would mean this cause of action is not time-barred.

Defendants assert Plaintiff’s allegation of Defendants being absent from California is a sham pleading. The Court is unpersuaded. “Under the sham pleading doctrine, allegations in an original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.) “The purpose of the doctrine is to enable the courts to prevent an abuse of process.” (Id.) “The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts.” (Id.) The Court notes that Defendants have not requested judicial notice of the original complaint for consideration on this demurrer. The Court thus takes judicial notice of its own file. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500.) The Court finds that this allegation was added to clarify that the statute of limitations does not apply in this case because it has been tolled. There are thus no inconsistencies with the allegations in the original complaint. Defendants’ assertion appears to be based on Plaintiff’s failure to provide evidentiary support for this allegation. Whether Plaintiff can prove that Defendants were in fact out of state for the requisite amount of time to toll the statute of limitations is not an issue for this demurrer. For the purposes of a demurrer, “‘the facts alleged in the pleading are deemed to be true, however improbable they may be.’” (Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522, 1537 (quoting Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604).)

Therefore, Defendants’ demurrer to the third cause of action is sustained with 10 days’ leave to amend.