Case Number: BC515124 Hearing Date: June 06, 2014 Dept: 46

Posted 6-3-2014 9:30

Case Number: BC515124
HAWKEYE ENTERTAINMENT LLC VS NEW VISION HORIZON LLC
Filing Date: 07/15/2013
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)

06/06/2014 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Hearing on Demurrer

TENTATIVE RULING: Demurrer to Complaint is OVERRULED. Defendant to answer within 20 days. Case to be set for Case Management Conference for July 21, 2014 at 8:30 a.m. in Dept. 46.
1. First Cause of Action – breach of oral contract

The plaintiff has adequately plead a cause of action for breach of an oral agreement where the parties would enter into a joint venture where each party would contribute assets including a building and expensive build-out and operations for a nightclub business and then share equally in the profits of a nightclub business.

The existence of a joint venture agreement has been adequately alleged and the agreement to transfer the nightclub and title to the building to the joint venture falls within the general exception to the statute of frauds as stated in the case of Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 583-584.

There is sufficient pleading of joint control to meet the requirements of a joint venture. Plaintiff would have had a 50% ownership interest in the joint venture as well as a share of the profits. Plaintiff would had to consent to any sale of the building or nightclub and approve any major decision under the operating agreements including consenting to capital contributions for renovation or improvements. This case provides more facts than as alleged in the case of Epstein v. Stahl (1969) 176 CXal.App.2d 53 where the existence of a joint venture agreement was found to have been adequately pled.

Further, the statute of frauds does not apply under Kaljian and Epstein because the transfer that was agreed to was to the joint venture and not to one of the partners in the joint venture.

2. Second Cause of Action – Breach of Implied Contract

The plaintiff has not properly pled a cause of action for breach of implied contract as the allegations appear to be merely an unenforceable agreement to agree which therefore is unenforceable due to lack of consideration. Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199. The allegations do support a cause of action for promissory estoppel and as such the demurrer is overruled.

However, where the factual allegations of the complaint are adequate to state a cause of action under any legal theory, a demurrer must be overruled. Charpentier v. Los Angeles Rams Football Co. (1999) 75 Cal.App.4th 301, 306-307.

The factual allegations are sufficient to state a cause of action for promissory estoppel. The elements of the claim for Promissory Estoppel are stated in Aceves v. U.S. Bank N.A (2011) 192 Cal. App. 4th 218, 225 as follows:

1. a promise clear and unambiguous in its terms;
2. reliance by the party to whom the promise is made;
3. [the] reliance must be both reasonable and foreseeable; and
4. the party asserting the estoppel must be injured by his reliance.

See also Jolley v. Chase Home Finance LLC (2013) 213
Cal.App.4th 872, 897; Toscano v. Green E Music (2004) 124 Cal.App.4th 685, 692.)

A promissory estoppel claim is “basically the same as contract actions, but only missing the consideration element.” U.S. Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 903.