2017-00219853-CU-OE

Arthur Howell vs. The City of Sacramento

Nature of Proceeding: Hearing on Demurrer

Filed By: Rogan, Kathleen T.

Defendant City of Sacramento’s unopposed demurrer to the seventh and eighth causes of action in Plaintiff Arthur Howell’s complaint is sustained with leave to amend.

The Court notes that Plaintiff filed a first amended complaint on January 10, 2018. However, effective January 1, 2016, absent a stipulation, a party may only amend a pleading as a matter of right in response to a demurrer no later than the date the opposition to the demurrer is due. (CCP § 472(a).) The opposition was due on January 4, 2018 and no stipulation has been presented to the Court. The Court therefore strikes the first amended complaint filed on January 10, 2018, on its own motion. The Clerk is directed to strike the first amended complaint.

In this employment action Plaintiff alleges numerous causes of action against Defendant and others for violations of FEHA and breach of contract. Defendant demurs to the seventh and eighth causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing.

The demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) Here, Plaintiff alleged that he entered into a contract with Defendant that was illegal and unenforceable. A breach of contract cause of action requires an enforceable contract. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1516.) In addition, Plaintiff failed to allege whether the agreement was written or oral, failed to identify the language of the agreement that was breached or identify how Defendant breached the agreement. Given that the breach of contract cause of action is inadequately pled, so too is the implied covenant of good faith and fair dealing claim which is dependent on a contract, In addition, with respect the common law implied covenant claim, Defendant is a public entity Plaintiff failed to allege a statutory basis for liability. (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96.)

The demurrer is sustained for the reasons stated in Defendant’s memorandum of points and authorities. The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. Nevertheless, as this is the first challenge to the pleading, leave to amend is granted.

Plaintiff may file and serve an amended complaint no later than January 29, 2018. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.