Superior Court, State of California



DEPARTMENT: 21 DATE: January 14, 2021 TIME: 9:00 AM

PREVAILING PARTY SHALL PREPARE THE ORDER, UNLESS OTHERWISE INDICATED BELOW.

(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))

TROUBLESHOOTING TENTATIVE RULINGS

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ALL APPEARANCES MUST BE BY COURTCALL, UNLESS OTHERWISE AUTHORIZED BY THE COURT. COURT REPORTING ALSO MUST BE DONE REMOTELY (NOT IN COURTROOM) AND FORM #CV-5100 IS REQUIRED.

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AS A REMINDER, STATE AND LOCAL COURT RULES PROHIBIT RECORDING OF COURT PROCEEDINGS WITHOUT A COURT ORDER. THIS PROHIBITION APPLIES WHILE IN THE COURTROOM AND WHILE LISTENING IN ON THE PUBLIC ACCESS LINE.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |20CV366925 |David Buchanan et al vs. Robert B. French et al |Demurrer by defendant Robert B. French dba Bob’s Deals on Wheels to |

| | | |the complaint of plaintiffs David Bryan Buchanan and Diane Marie |

| | | |Buchanan. |

| | | | |

| | | |Please press ctrl key and click on Line 1 for tentative ruling. |

| | | | |

| | | |The Court will prepare the order. |

|LINE 2 |20CV366939 |ZL Technologies, Inc. vs. Arvind Srinivasan et al |Demurrer by Plaintiff to the Cross-Complaint filed by |

| | | |Defendant/Cross-Complainant Arvind Srinivasan. |

| | | | |

| | | |Please press ctrl key and click on Line 2 for tentative ruling. |

| | | | |

| | | |The Court will prepare the order. |

|LINE 3 |18CV333011 |John Heineke vs. Jane Doe et al |Defendant Santa Clara University and Jane Doe (“Defendants”)’s motion |

| | | |to compel Plaintiff’s deposition answers. |

| | | | |

| | | |Defendants’ request for the Court to disregard Plaintiff’s opposition |

| | | |papers is DENIED. |

| | | |Defendant Santa Clara University and Jane Doe (“Defendants”)’s motion |

| | | |to compel Plaintiff’s deposition answers is GRANTED as to question |

| | | |nos. 3, 6, 7, 8, and 9. |

| | | | |

| | | |(“Defendants”)’s motion to compel Plaintiff’s deposition answers is |

| | | |DENIED as to questions nos. 1, 2, 4, 5, 10, 11, and 12. |

| | | | |

| | | |Plaintiff is to appear at the next properly noticed deposition to |

| | | |answer question nos. 3, 6, 7, 8, and 9. |

| | | |Defendants’ request for monetary sanctions is DENIED. |

| | | | |

| | | |Plaintiff’s request for monetary sanctions is DENIED in its entirety, |

| | | |including the request for monetary sanction for violation of Business |

| | | |& Profession Code section 6068(d). |

| | | | |

| | | |Neither Plaintiff nor Defendants can be deemed to be the prevailing |

| | | |party. |

| | | | |

| | | |Defendants are to prepare the final order. |

|LINE 4 |18CV334671 |Vector Fabrication, Inc., a California Corporation |Plaintiff Vector Fabrication, Inc. (“Plaintiff”)’s motion for order |

| | |et al vs. Hieu Nguyen et al |deeming truth of facts and genuineness of documents is unopposed and |

| | | |is GRANTED as to Plaintiff’s Request For Admissions, Set No. One, |

| | | |served on Defendant Nguyen Thi Thu Thao, Trustee of the 2016 Nguyen |

| | | |Minh Hieu& Nguyen Thi Ngoc Quy Insurance Trust (“Defendant Trustee”). |

| | | | |

| | | |Plaintiff’s request for monetary sanctions is GRANTED against |

| | | |Defendant Trustee in the amount of $975.00, payable within 30 days of |

| | | |the filing of this order. |

| | | | |

| | | |Plaintiff is to prepare the final order. |

|LINE 5 |18CV338383 |Saurabh Sharma vs. FCA US, LLC et al |Plaintiff Sharma Saurabh’s Motion for Attorney’s Fees, Costs and |

| | | |Expenses. |

| | | | |

| | | |Counsel are invited to appear telephonically. |

|LINE 6 |2015-1-CV-277423 |Federaci n Jalisco Del Norte De California vs. F. |Cross-complainant FEDERACION JALISCO del NORTE de CALIFORNIA’s Motion |

| | |Fonseca, et al |for an Order to Show Cause re: Contempt and for attorney’s fees and |

| | | |costs (“motion”) is DENIED WITHOUT PREJUDICE. |

| | | | |

| | | |There is no proof of service of the motion on Cross-defendant HUMBERTO|

| | | |AREVALO. |

|LINE 7 |19CV355084 |State Farm Mutual Automobile Insurance Company vs. |State Farm Mutual Automobile Insurance Company (“State Farm”)’s motion|

| | |Luis Ramos Mares |to enforce the Stipulation for Settlement entered into by |

| | | |State Farm and Defendant Luis Ramos Mares is unopposed and is GRANTED.|

| | | | |

| | | |Judgment is entered in favor of State Farm and against against |

| | | |Defendant Luis Ramos Mares in |

| | | |The amount of $10,683.32. |

| | | | |

| | | |State Farm is to prepare the final order. |

|LINE 8 |2009-5-CV-003611 |Portfolio Recovery Associates, LLC vs. F. Gonzalez |Plaintiff Portfolio Recovery Associates, LLC ("Plaintiff“)’s motion |

| | | |for an order vacating the judgment as to Defendant Frank P Gonzalez is|

| | | |unopposed and is GRANTED. |

| | | | |

| | | |Pursuant to Plaintiff’s request, the above-entitled action is |

| | | |dismissed without prejudice. |

| | | | |

| | | |Plaintiff is to prepare the final order. |

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Case Name: David Bryan Buchanan, et al. v. Robert B. French

Case No.: 20-CV-366925

Before the Court is the demurrer by defendant Robert B. French dba Bob’s Deals on Wheels (“Defendant”) to the complaint of plaintiffs David Bryan Buchanan and Diane Marie Buchanan (collectively, “Plaintiffs”).

Factual and Procedural Background

This action arises out of the sale of a used car. Defendant is engaged in the business of buying, repairing, and re-selling used vehicles to the general public and taking vehicles in trade. (Complaint, ¶ 3.) Defendant Great American Insurance Company (“Great American”) was the surety on a bond in the amount of $50,000.00, which Defendant maintained pursuant to Vehicle Code section 11710. (Id. at ¶ 6.)

On June 19, 2017, Plaintiffs went to Defendant’s place of business and purchased a used 2015 Toyota Prius (the “Vehicle”) for Diane Marie Buchanan’s son, Stephen Forbes (“Forbes”). (Complaint, ¶ 14.) Prior to the sale, Defendant informed Plaintiffs that the Vehicle had been in an accident, but all damage was repaired and there was no frame damage. (Id. at ¶ 15.) Defendant allegedly misrepresented the history and/or repair condition of the Vehicle, the level of damage and repairs done to the Vehicle. (Id. at ¶¶ 15-16.) Defendant was aware, or should have known, that his assertions were false. (Id. at ¶ 30.) Also, Defendant did not disclose that the repairs performed on the Vehicle were substandard, the Vehicle had been branded as having frame/unibody damage, or the Vehicle had existing structural, frame, or unibody damage. (Id. at ¶ 16.) The Vehicle had been in a prior accident, underwent substandard repair, had been branded as having frame/unibody damage, had suffered structural damage to its frame/unibody as a result of a prior accident, or had existing structural, frame, or unibody damage. (Id. at ¶ 17.) Plaintiffs would not have purchased the Vehicle if they had been made aware of its true condition. (Id. at ¶¶ 18 & 52.)

Based on Defendant’s representations, Plaintiffs agreed to purchase the Vehicle, executed a retail installment sales contract, and took delivery of the Vehicle. (Complaint, ¶ 20.) “While the [contract] is in [Forbes’] name, Plaintiffs paid for the [Vehicle], were

present during the entire sales transaction, and [Forbes] has transferred all of his rights to the [Vehicle] to Plaintiffs.” (Id. at ¶ 21.) Sometime after the purchase of the Vehicle, and within the last three years, Plaintiffs discovered that the Vehicle had in fact been previously damaged, involved in an accident, had frame/unibody damage, or it had substandard repair. (Id. at ¶ 25.) As a result of Defendant’s misrepresentations and omissions, Plaintiffs were damaged. (Id. at ¶¶ 18, 27, 31, 38, 52, 59, & 71-72.)

Based on the foregoing allegations, Plaintiffs filed a complaint against Defendant and Great American, alleging causes of action for: (1) violation of Civil Code section 1750, et seq. (the “CLRA”) (against Defendant); (2) violation of Business and Professions Code section 17200, et seq. (the “UCL”) (against Defendant); (3) negligent misrepresentation (against Defendant); and (4) claim against surety (against Great American).

On September 29, 2020, Defendant filed the instant demurrer to the complaint. Plaintiffs filed an opposition to the demurrer on December 28, 2020.

Discussion

Defendant demurs to the complaint, in its entirety, on the ground of failure to allege facts sufficient to constitute a cause of action.[1] (Defendant’s Notice of Demurrer, p. 1:21-26; Id. at p. 2:2-4; Defendant’s Mem. Ps. & As., pp. 1:22-24, 5:1-5, & 6:2-4; see Code Civ. Proc., § 430.10, subd. (e).)

I. Request for Judicial Notice

In connection with his moving papers, Defendant asks the Court to take judicial notice of the complaint and “[a]ny and all papers, pleadings, records and other documentation in the file on [this] action ….” (Defendant’s RJN, p. 1:22-26.)

As an initial matter, Defendant’s request for judicial notice of the complaint is unnecessary as the Court already considers the operative pleading in analyzing the pending demurrer. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1 [denying as unnecessary a request for judicial notice of the pleading under review on demurrer].) Therefore, the Court declines to take judicial notice of the complaint.

Furthermore, Defendant’s request for judicial notice of all documents contained in the court file is improper. The request violates California Rules of Court, rule 3.1113(l), which states that “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested ….” Here, the general reference to the entire court file simply does not constitute a specific item. Thus, the Court declines to take judicial notice of all documents filed in this case.

Accordingly, Defendant’s request for judicial notice is DENIED.

II. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

III. Analysis

As a threshold matter, Defendant’s demurrer is framed as being directed to the complaint as a whole. This is significant because a demurrer directed to the complaint in its entirety must be overruled if any of the causes of action alleged is not vulnerable to the objection(s) asserted in the demurrer. (See Jones v. Iverson (1900) 131 Cal. 101, 104 [“The rule is well established that a general demurrer directed to the whole of the complaint should be overruled, if some portion of the complaint states a cause of action.”]; see also Lord v. Garland (1946) 27 Cal.2d 840, 850 [“[A] demurrer which attacks an entire pleading should be overruled if one of the counts therein is not vulnerable to the objection.”]; Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 36 [“[A] general demurrer directed to the whole of the complaint should be overruled if some portion of the complaint states a cause of action.”].) Thus, if any one of Plaintiffs’ claims is not vulnerable to Defendant’s objections, the demurrer must be overruled.

Turning to the merits of the demurrer, the Court initially notes that Defendant challenges the fourth cause of action of the complaint even though that claim is only alleged against Great American. Defendant does not have standing to challenge the fourth cause of action because a party can demur only to those claims filed against it. (Code Civ. Proc., § 430.10 [a demurrer may be filed only by “[t]he party against whom a complaint … has been filed”]; see Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1004.) Consequently, the fourth cause of action is not vulnerable to Defendant’s objections and the demurrer to the complaint may be overruled on that basis alone.

Next, Defendant argues the first cause of action for violation of the CLRA, the second cause of action for violation of the UCL, and the third cause of action for negligent misrepresentation fail to state a claim because Plaintiffs lack standing to bring those causes of action. Defendant cites Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162 for the proposition that someone who is not a party to a contract has no standing to enforce the contract or to recover extra-contract damages for wrongfully withholding benefits to the contracting party. Defendant then points out that Plaintiffs are not parties to the retail installment sales contract. Defendant also states that the terms of the contract prohibit Forbes from transferring any interest in the contract or Vehicle without Defendant’s prior written permission. Defendant notes there are no allegations in the complaint establishing that he granted Forbes permission to assign any interest in the contract or Vehicle. Defendant concludes there has been no valid transfer or assignment of any interest in the contract or Vehicle to Plaintiffs and Plaintiffs, therefore, lack standing to bring the first through third causes of action.

Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer. [Citations.] To have standing to sue, a person, or those whom he properly represents, must “ ‘have a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.’ [Citation.]” [Citation.] Code of Civil Procedure section 367 establishes the rule that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” A real party in interest is one who has “an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action.” [Citation.]

(Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031-1032.)

Defendant’s argument regarding standing is not well-taken as to the third cause of action. Defendant does not present reasoned argument or legal authority demonstrating that the existence of a contractual relationship between the parties is an element of a claim for negligent misrepresentation or that the third cause of action seeks to enforce the retail installment sales contract. Instead, that claim seeks to recover damages that Plaintiffs sustained as a result of Defendant’s alleged misrepresentations regarding the history and condition of the Vehicle. In the FAC, Plaintiffs allege that Defendant made misrepresentations to them regarding the Vehicle’s history and condition, they relied on Defendant’s representations, they agreed to purchase the Vehicle based on Defendant’s representations, and they paid the purchase price for the Vehicle. (FAC, ¶¶ 14-16, 18, & 20-21.) Thus, Plaintiffs sustained damages as a result of Defendant’s alleged misrepresentations because they paid money for the Vehicle. As the persons to whom the representations were made and who justifiably relied on the representations and suffered damage, Plaintiffs are real parties in interest whose rights allegedly were violated under the substantive law of fraud. (See Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638, 909 P.2d 981 [stating the elements of a fraud cause of action]; see also Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407; Christiansen v. Roddy (1986) 186 Cal.App.3d 780, 785-786.) Therefore, Plaintiffs allege sufficient facts to establish that they have standing to sue based on Defendant’s negligent misrepresentations.

Because the third cause of action is not vulnerable to Defendant’s objections on demurrer, the demurrer to the complaint as a whole cannot be sustained.[2]

Accordingly, Defendant’s demurrer to the complaint on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED.

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Case Name: ZL Technologies, Inc. v. SplitByte, Inc., Arvind Srinivasan

Case No.: 20CV366939

This is a dispute between Plaintiff ZL Technologies, Inc. (“Plaintiff”) and Defendants SplitByte, Inc. and Arvind Srinivasan (a former officer and employee of Plaintiff who is alleged to have founded SplitByte). The now operative First Amended Complaint (“FAC”) filed November 24, 2020 states claims for breach of fiduciary duty and unfair competition among others.

Before the Court is Plaintiff’s demurrer to the Cross-Complaint filed by Defendant/Cross-Complainant Srinivasan on August 21, 2020. The Cross-Complaint states claims for: 1) Violation of Labor Code §201; 2) Violation of Labor Code §227.3; 3) Breach of Implied Contract to pay deferred wages; 4) Breach of Contract (severance, vacation, deferred wages); 5) Breach of Contract (Chennai Operation); 6) Promissory Estoppel; 7) Common Count; 8) Wrongful Termination; 9) Reformation of Contract (loan agreement); 10) Declaratory Relief (alternative to reformation); 11) Breach of Contract (Indemnity), and; 12) Declaratory Relief (Indemnity). No documents are attached the Cross-Complaint as exhibits.

Plaintiff demurrers to the Cross-Complaint’s third, fourth, and fifth causes of action.

Request for Judicial Notice

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

With the opposition to the demurrer Plaintiff has submitted a request for the Court to take judicial notice of three documents pursuant to Evidence Code §452(d): 1) the original complaint; 2) the operative FAC, and; 3) The Notice of the current Demurrer. No copies of these documents are attached to the request.

The request is DENIED as unnecessary as to all three documents. The Court already considers the targeted pleading and the documents supporting the demurrer in evaluating the demurrer. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].) Neither the FAC nor the no longer operative original complaint are relevant to the present demurrer.

Demurrer to Cross-Complaint

The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

The Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are denied. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the declaration of Defense Counsel Eric Kastner or the exhibits attached to it. The declaration of Plaintiff’s Counsel Adron Been has only been considered to the extent it describes the required meet and confer efforts.

Plaintiff demurrers to the Cross-Complaint’s third, fourth, and fifth causes of action on the basis that all three of them fail to state sufficient facts and fail to indicate whether the contracts alleged are written, oral, or implied by conduct. (See Demurrer at pp. 2:3-3:2.) While these are stated as two separate grounds, Plaintiff’s actual argument is that the targeted claims fail to state sufficient facts because they fail to specify what type of contract is alleged.

As an initial matter the Court notes that Defendant/Cross-Complaint suggests, without expressly arguing, that the demurrer is somehow untimely because the notice of demurrer did not state a hearing date. During the ongoing COVID-19 crisis and the (related) reduction in court personnel and court business hours the Court has allowed parties to file timely motions with a hearing date to be assigned later.

Assuming for purposes of argument the present demurrer could be considered untimely, it is within the discretion of the court to consider an untimely demurrer. (Code of Civil Procedure [“CCP”] §473(a)(1); Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [appellate court determined that trial court properly exercised its discretion in considering untimely demurrer]; see also McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 282 [appellate court held that trial court’s decision to entertain second demurrer did not affect plaintiff’s substantial rights].) Accordingly, to the extent it may be considered necessary, the Court exercises its discretion and will consider the merits of the present demurrer.

Third cause of action

Plaintiff’s demurrer to the Cross-Complaint’s third cause of action is SUSTAINED with leave to amend within 10 days of the filing of this order.

To properly state a breach of contact claim a plaintiff or cross-complainant must allege: 1) the existence of a (valid) contract; 2) Plaintiff’s performance or excuse for nonperformance; 3) Defendant’s breach, and; 4) damage to Plaintiff resulting from that breach. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

The third cause of action is labeled one for “Breach of Implied Contract to pay deferred wages.” It alleges (Cross-Complaint at ¶43) that “Among other provisions within Srinivasan’s employment contract was a requirement that ZL pay Cross-Complainant an annual lump sum of $300,000 in deferred compensation for work Cross-Complainant performed the prior year.” It then alleges at ¶45 that ZL “breached its implied obligation” by refusing to pay the deferred compensation. As presently alleged the third cause of action is inherently contradictory, does not clearly describe an implied contract, and fails to clearly indicate what type of contract is being alleged. The general allegations in the Cross-Complaint at ¶¶13-18 (“Srinivasan’s Vested Unpaid Deferred Wages”), expressly incorporated by reference, do not resolve this contradiction or provide sufficient clarity. They allege an “agreement” to pay deferred wages but do not clearly state if it is written, oral, or implied by conduct.

“Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the more general allegation and the specific allegations.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235.) “To handle these contradictions, California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Id. at pp. 1235–1236.) “Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient.” (Id. at p. 1236.)

“An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code §1621, emphasis added; See also California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134 [an implied contract “. . . consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words. In order to plead a cause of action for implied contract, the facts from which the promise is implied must be alleged.”] Emphasis added.) As has been noted in a different employment context: “‘There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.’ The express term is controlling even if it is not contained in an integrated employment contract. Thus, the … at-will agreement precluded the existence of an implied contract requiring good cause for termination.” (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38; See also Halvorsen v. Aramark Uniform Servs. (1998) 65 Cal.App.4th 1383, 1388 [“factors supporting a finding of an implied-in-fact employment agreement are irrelevant when, as here, there is an express agreement.”])

Where a contract is alleged to be written consideration is presumed. (See Civ. Code, §1614—“A written instrument is presumptive evidence of a consideration.”) No such presumption applies to an alleged oral contract or an alleged contract implied by conduct and the essential element of consideration must be clearly alleged in such instances.

If it is Defendant/Cross-Complainant’s contention that his written employment agreement included a provision promising to pay him deferred compensation, he must amend to clearly allege that. If it is his contention that this promise was based on oral statements (which means it was not an implied contract), that must be clearly alleged. If it is his contention that a promise of deferred compensation was implied through conduct (which by definition means it was neither a written contract term nor an oral promise) he must amend to clearly allege that.

Fourth cause of action

Plaintiff’s demurrer to the fourth cause of action is SUSTAINED with with leave to amend within 10 days of the filing of this order.

The fourth cause of action (Cross-Complaint at ¶¶46-49) is labeled one for “Breach of Contract (Severance, Vacation and Deferred Wages),” but does not clearly allege what contract or what type of contract it is based upon. It alleges (at ¶47) that Cross-Complainant “complied with all conditions in his employment agreement with ZL,” and then alleges (at ¶48) that ZL “breached its contract” by failing to pay Cross-Complainant “his due and vested wages,” suggesting that the fourth cause of action alleges a breach of “employment agreement with ZL.” However, the general allegations at ¶¶19-22 (“Srinivasan’s Unpaid Vested Severance Wages”) expressly incorporated into the fourth cause of action by reference, allege a wholly separate agreement dealing with severance. “This severance agreement and formula was reduced to a writing signed by Srinivasan and Leong.” (Cross-Complaint at ¶20.) Defendant/Cross-Complainant shall amend to clarify what contract is the basis of the fourth cause of action and to specify whether it is alleged that the “severance agreement and formula” is a written contract.

Fifth cause of action

Plaintiff’s demurrer to the fifth cause of action is SUSTAINED with with leave to amend within 10 days of the filing of this order.

The fifth cause of action (Cross-Complaint at ¶¶50-53) is labeled one for “Breach of Contract (Chennai Operation).” It alleges that Cross-Complainant “complied with all conditions in his agreement with ZL to establish and staff an office in Chennai, India. Cross-Defendant breached its contract with Cross-Complainant by terminating him and refusing to pay him the promised amount of $300,000 additional wages . . .” The fifth cause of action does not specify whether the “agreement” is alleged to be written, oral or implied by conduct. The general allegations at ¶¶28-31 (“Unpaid additional $300,000 owed to Srinivasan to establish a ZL outpost in Chennai”), expressly incorporated into the fifth cause of action by reference, appear to describe the “agreement” as follows: “On or about June 7, 2019 . . . Leong proposed terms he wrote out on a white board, which Srinivasan photographed and to which he agreed.” (Cross-Complaint at ¶28.)

Cross-Complainant/Defendant shall amend to clarify whether the fifth cause of action is based on the photographed white board and what type of contract (written, oral or implied by conduct) is alleged to have been breached by ZL’s failure to pay severance.

Cross-Complainant/Defendant is reminded that when a demurrer is sustained with leave to amend the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend. Absent prior leave of court an amended complaint raising entirely new and different causes of action may be subject to a motion to strike. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”])

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[1] In his demurrer, Defendant also states that the demurrer is brought on the ground of lack of subject matter jurisdiction. (Defendant’s Demurrer, pp. 1:28-2:1; see Code Civ. Proc., § 430.10, subd. (a) [the party against whom a complaint has been filed may object by demurrer to the pleading on the ground that the court has no jurisdiction of the subject of the cause of action alleged in the pleading].) However, Defendant does not mention this additional ground for demurrer in his notice of demurrer or memorandum of points and authorities. Because Defendant does not present any argument regarding the ground of lack of subject matter jurisdiction, his demurrer on that ground is not well-taken. (See Cal. Rules of Ct., rule 3.1113(a)-(b) [providing that the absence of supporting argument in the memorandum of points and authorities may be construed as a waiver of that ground for demurrer]; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Consequently, the demurrer to the complaint on the ground of lack of subject matter jurisdiction is OVERRULED.

[2] The Court need not address Defendant’s standing argument with respect to the first and second causes of action because Defendant’s failure to prevail on the third cause of action is dispositive of the demurrer.

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