Case Name: ?? Cornet, et al. v. Brar, et al.
Case No.:??????? 1-13-CV-241439
This is an action for breach of contract regarding the sale of a restaurant. ?The cross-complaint alleges that on December 1, 2011, cross-complainant Kaddu, Inc. (?Kaddu?) entered into an agreement with cross-defendant Sandrine Cornet to allow her to take possession of the restaurant known as Da Zucca.? (See cross-complaint (?XC?), ? 8.)? Cornet paid Kaddu $200,000 of the $390,000 purchase price.? (Id.)? In January 2012, Cornet formed Opa Verde, Inc. (?Opa Verde?) (collectively with Cornet, ?cross-defendants?) to enter into the operative purchase agreement.? (See XC, ? 9.)? On January 30, 2012, Kaddu and Opa Verde entered into a contract entitled ?Business Purchase Agreement? where Opa Verde agreed to purchase Kaddu and its assets, assume the existing lease, apply to transfer Kaddu?s state liquor license into their name, transfer all utilities in their name, and mediate any dispute or claim.? (See XC, ? 10.)? Despite Kaddu?s performance, cross-defendants failed to assume the existing lease, transfer Kaddu?s state liquor license into their name, or transfer the utilities into their name.? (See XC, ? 15.)? In addition, cross-defendants instead filed a complaint without mediating or attempting to mediate the dispute as agreed.? (See XC, ? 17.)? Cornet is alleged to be the alter ego and sole shareholder of Opa Verde.? (See XC, ? 4.)? On August 12, 2013, cross-complainant Kaddu filed the XC against cross-defendants for:? breach of contract; embezzlement/conversion; declaratory relief; and, accounting.
On November 18, 2014, Kaddu filed a first amended cross-complaint (?FAXC?) newly alleging that Cornet?s father, Jean Luc Cornet, and her mother and stepfather, Arlette Gauze Sanouillet and Remy Sanouillet (collectively, ? Sanouillets?), were investors, shareholders or alter egos of Opa Verde.? On April 19, 2015, the Court granted Jean Luc Cornet?s motion to quash and sustained the Sanouillets? demurrer, noting that:
these allegations are plainly insufficient to invoke the alter ego doctrine.? First, the alter ego doctrine is solely applied when an individual is attempting to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose via use of a corporation, not another individual.? (See Sonora Diamond Corp. v. Super. Ct. (Sonora Union High School Dist.) (2000) 83 Cal.App.4th 523, 538.)? Regardless, these facts do not support application of the alter ego doctrine.? There are, for example, no allegations regarding?commingling of funds and other assets, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of?the same offices and employees, and use of one corporate entity as a mere shell or conduit for the affairs of the other, inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers.? (Id. at pp.538-539.)
(April 9, 2015?s order re: Jean Luc Cornet?s motion to quash service of summons and the Sanouillets? demurrer to FAXC, p.6:15-25.)
Kaddu moved for reconsideration of the April 19, 2015 order as to the motion to quash, and also filed a second amended cross-complaint that still included allegations as to Jean Luc Cornet.? On June 2, 2015, the Court denied the motion for reconsideration, struck allegations regarding Jean Luc Cornet, and directed Kaddu to file a third amended cross-complaint in conformance with the Court?s order.? On August 4, 2015, Kaddu filed a third amended cross-complaint (?TAXC?) that alleged causes of action against cross-defendants Sandrine Cornet and the Sanouillets (collectively, ?Cross-defendants?) for: breach of contract; declaratory relief; and, accounting.? The TAXC alleges that Cross-defendants were the alter ego of Opa Verde (see TAXC, ?? 10-11) or, in the alternative were somehow liable as investors in the company (see TAXC, ?? 12-32). The Sanouillets move for summary judgment, or in the alternative for summary adjudication of each cause of action against them. ?Sandrine Cornet moves for summary adjudication of the second cause of action for declaratory relief.
The Sanouillets? motion for summary judgment, or in the alternative for summary adjudication
?A defendant seeking summary judgment must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action. ?? ?The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.? ?(Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)
?The ?tried and true? way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff?s claim.? ?(Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ? 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) ??The moving party?s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff?s claim ?in order to avoid unjustly depriving the plaintiff of a trial.?? ?(Id. at ? 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
?Another way for a defendant to obtain summary judgment is to ?show? that an essential element of plaintiff?s claim cannot be established. ?Defendant does so by presenting evidence that plaintiff ?does not possess and cannot reasonably obtain, needed evidence? (because plaintiff must be allowed a reasonable opportunity to oppose the motion). ?Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.? ?(Id. at ? 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
First cause of action for breach of contract
The TAXC?s first cause of action alleges that Cross-Defendants breached the Buy Sell Agreement and the Business Purchase Agreement.? The Sanouillets contend that the breach of cause of action is without merit as to them because there is no evidence that they are liable: in an individual capacity as parties to the agreement; as investors of Opa Verde; as partners of Sandrine Cornet; nor, as alter egos of Opa Verde.
Buy Sell Agreement
Here, the parties of the December 1, 2011 Buy Sell Agreement were ?Sandrine Cornet? and ?Surjit Brar, President, Kaddu Inc.?? The TAXC alleges that ?[i]n or about January 2012, Cross-Defendant Sandrine Cornet, Arlette Gauze and Remy Sanouillet formed Opa Verde, Inc., to enter into the Business Purchase Agreement with Kaddu, Inc.? ?It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.?? (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (stating that ?[t]he complaint limits the issues to be addressed at the motion for summary judgment? [t]he rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond?); see also Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 (stating that ?[o]n summary judgment motions, the pleadings always define the issues?).)
Here, the Sanouillets were not parties to the agreement.? Nor could they be alter egos of Opa Verde, since?according to the TAXC?Opa Verde was not yet formed.? The Sanouillets also present evidence demonstrating that they never agreed to form a partnership with Sandrine Cornet as to Opa Verde. ?(See Gauze decl., ?? 4-6; see also Sanouillet decl., ?? 4-6; see also Cornet decl., ?? 7, 9-11.)? The Sanouillets meet their initial burden to demonstrate that they are not liable as to the Buy Sell Agreement.
In opposition, Kaddu makes a lengthy argument with regards to alter ego liability.? However, again, the Buy Sell Agreement lists the party as Sandrine Cornet and Opa Verde was not yet formed.? Thus, Kaddu?s argument is without merit as to the Buy Sell Agreement.
Kaddu also argues that the Sanouillets are liable as investors and that the Sanouillets fail to cite to any case authority regarding the absence of such liability.? Nevertheless, Kaddu likewise fails to cite to any authority suggesting that an investor is somehow liable for the debts of a corporation.? Moreover, again, Sandrine Cornet is the sole party named on the agreement and Opa Verde was not yet in existence.? The Sanouillets are not personally liable for Sandrine Cornet?s contractual obligations unless they were guarantors, and Kaddu has not submitted any evidence regarding such a guaranty agreement.
Kaddu lastly argues that the Sanouillets are liable as general partners or joint venturers.? However, Kaddu has not presented any evidence suggesting the existence of such a partnership.? Kaddu presents Sandrine Cornet?s deposition testimony that on December 1, 2011, Jean Luc Cornet invested the $200,000 that ?[p]ursuant to the Buy Sell Agreement, Sandrine Cornet paid Kaddu? (TAXC, ? 37); however, this actually suggests that the Sanouillets made no such investment as to the Buy Sell Agreement.? (See Ryan decl., exh. B (?Cornet depo?), pp. 55:3-23, 233:9-25, 241:3-12.)? Moreover, Kaddu presents deposition testimony from Sandrine Cornet stating that she did not ?borrow money from anybody else to purchase the restaurant prior to signing the Buy Sell Agreement.?? (Cornet depo, p.242:20-23.)? Accordingly, Kaddu fails to demonstrate a triable issue of material fact with regards to the Buy Sell Agreement as to the Sanouillets.
Business Purchase Agreement
The parties of the January 30, 2012 Business Purchase Agreement were ?Kaddu Inc? Surjit Brar? as Seller and Opa Verde Inc as Buyer.? Again, the Sanouillets are not listed as parties to the agreement.
As to the partnership liability and joint venture liability theories, the TAXC alleges that ?Sandrine Cornet, Arlette Gauze, Remy Sanouillet and Opa Verde, Inc., or some combination of them, formed a partnership or joint venture, by their spoken words, written documents including email and text exchanges as well as their acts? pursuant to California Corporations Code ? 16202.?? (TAXC, ? 9.)? Generally, a corporation has no power to enter into a partnership unless authorized to do so by its articles of incorporation.? (See Milton Kauffman, Inc., v. Superior Court in and for Los Angeles County (1949) 94 Cal.App.2d 8, 17 (stating ?a corporation has no power to enter into a partnership?); see also Fee v. McPhee Co. (1916) 31 Cal.App. 295, 315 (stating that ?[o]rdinarily, in the absence of special authority, a corporation cannot enter into partnership with a private person?).)? However, a corporation ?may, under a joint venture with others, transact any business which is within the scope of its legitimate powers?.?? (Milton Kauffman, Inc, supra, 94 Cal.App.2d at p.17.)? Here, the Sanouillets present evidence demonstrating that they did not enter into any agreement with Opa Verde so as to render them liable for the debts of the corporation.? (See Cornet decl., ? 10-11; Gauze decl., ?? 4-5; Sanouillet decl., ? 4-5.)? The Sanouillets meet their initial burden to demonstrate that they are not liable under the partnership liability and joint venture liability theories.
In opposition, Kaddu presents deposition testimony from Sandrine Cornet stating that: the Sanouillets loaned her $115,000 (see Cornet depo, pp.61:17-25, 62:1-11); the Sanouillets ?were investing money for [Sandrine Cornet] to put into the escrow? (Cornet depo, pp.258:2-25, 259:1-2); and, Gauze used her credit card to pay to change tile in the kitchen (Cornet depo, pp.259:15-24, 261:20-22).? Kaddu also presents Gauze?s deposition testimony in which she states that: she ?invest[s] in [her] daughter? and wrote a check for $40,000, a $5,000 money order and $5,000 in cash (Ryan decl., exh. D (?Gauze depo?), pp.8:25, 9:1-9, 13:9-21); the purpose of the money was so that Sandrine Cornet ?can invest in the restaurant? (Gauze depo, p.9:16-25, 10:1-7 (also stating that ?she was in the process of buying the restaurant? the idea was forming that she was trying to buy the restaurant?)); her daughter uses a credit card that Gauze pays (Gauze depo, pp.14:5-18, 15:2-21); she, her husband a couple of friends painted, cleaned, ?took care of the flower,? planted new plants, changed an electrical fixture and scrubbed the floor of the restaurant in February 2012 (Gauze depo, pp.25:23-25, 26:1-25, 27:1-3); the only other time that she went to the restaurant was to see her daughter a couple of times a week, including Sundays when she would buy Sandrine Cornet a croissant (Gauze depo, p.27:6-24).? Kaddu also presents deposition testimony of Remy Sanouillet who states that: he did not discuss negotiations to purchase the restaurant prior to the meeting for the Business Purchase Agreement (Ryan decl., exh. E (?Sanouillet depo?), p.66:7-25); and, he met with Barry Fujii and Surjit Brar in late 2012 ?to hear his side of the story?? ?just to listen? and not to negotiate (Sanouillet depo, pp.103:14-25, 104:1- 25, 105:1-24).? Kaddu lastly presents deposition testimony of Dhiraj Singha, who states that: Gauze was arranging to give Sandrine Cornet money so that Sandrine Cornet, who had just incorporated Opa Verde, could complete the transaction (Ryan decl., exh. F (?Singha depo?), p.118:11-25, 119:1-5; see also Ryan decl., exh. G (?Singha depo 2?), pp. 74:22-25, 75:1-25, 76:1-23); and, Sanouillet had questions about the restaurant such that he was aware of the restaurant (Singha depo, p.118:3-10; Singha depo 2, pp.82:5-25, 83:1-25, 84:1-14, 85:19-25).
Kaddu?s evidence does not suggest that the Sanouillets agreed to have joint control over Opa Verde, or share in the profits in Opa Verde.? (See Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 91 (stating that ?[t]here are three basic elements?of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise?); see also Greene v. Brooks (1965) 235 Cal.App.2d 161, 165 (stating that ?[s]ome degree of participation by partners in management and control of the business is one of the primary elements of partnership?); see also Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 364 (stating that ?[a]n essential element of a partnership or joint venture is the right of joint participation in the management and control of the business? [a]bsent such right, the mere fact that one party is to receive benefits in consideration of services rendered or for capital contribution does not, as a matter of law, make him a partner or joint?venturer?); see also Spier v. Lang (1935) 4 Cal.2d 711, 716 (stating the division of profits does not establish a partnership relation, where there is no joint participation in management of business and the division of profits is made to compensate for use of money advanced).)? Kaddu?s evidence also does not demonstrate that the Sanouillets ever intended to be partners or joint venturers with regards to the Sanouillets? ?investment in their daughter.?? (See Greene v. Brooks (1965) 235 Cal.App.2d 161, 165-66 (stating that ?[t]he ultimate test of the existence of a partnership is the intention of the parties to carry on a definite business as co-owners? [which] may be determined from the terms of the parties’ agreement or from the surrounding circumstances?).)? Accordingly, Kaddu fails to demonstrate a triable issue as to whether the Sanouillets are liable under a partnership or joint venture liability theory.
The Sanouillets also assert that they are not liable under an alter ego theory of liability.? They have presented evidence demonstrating that Sandrine Cornet is Opa Verde?s sole shareholder, sole officer, and sole director, and is the only person or entity with ownership interest in Opa Verde.? (See Cornet decl., ? 9; Gauze decl. ?? 4, 6; Sanouillet decl., ?? 4, 6.)? The Sanouillets meet their initial burden to demonstrate that they are not alter egos of Opa Verde.? (See Automotriz Del Golfo De California S. A. De C. V. v. Resnick (1957) 47 Cal.2d 792, 796 (stating that ?the two requirements for application of [the alter ego] doctrine are (1) that there be such unity of?interest?and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow?); see also Hennessey’s Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1358 (stating that ?[b]efore the courts will disregard the corporate entity of one corporation and treat it as the alter ego of another, even though the latter may own all the stock of the former, it must further appear that there is such a unity of interest and ownership that the individuality of the one corporation and the owner or owners of its stock has ceased and, further, that the observance of the fiction of separate existence would under the circumstances sanction a fraud or promote injustice?); see also Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 837 (stating that ?[b]efore a corporation?s acts and obligations can be legally recognized as those of a particular person, and vice versa, it must be made to appear that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of such person and corporation has ceased, and that the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice?)
In opposition, Kaddu cites the same evidence referenced above, and an additional statement by Singha in which he states ?Sandrine wanted him as an investor or partner in the corporation.?? (Singha depo, p.118:12-13.)? The Sanouillets object to this statement, and the objection is SUSTAINED.? In the Court?s order regarding the Sanouillets? demurrer to the FAXC, the Court specifically noted that its allegations?the mere investment of $115,000 towards the purchase of the subject business, Sandrine Cornet?s consultation with them ?about all material matters associated with the purchase of the restaurant business?; Sandrine Cornet?s acting in accordance to the Sanouillets? instructions; Sandrine Cornet?s authorization to enter into contracts for the purchase of the restaurant business by the Sanouillets; and, the Sanouillets participation in and control of the negotiations of the contracts??[we]re plainly insufficient to invoke the alter ego doctrine.?? (April 9, 2015?s order re: Jean Luc Cornet?s motion to quash service of summons and the Sanouillets? demurrer to FAXC, p.9-15.)? The Court specifically noted that ?these facts do not support application of the alter ego doctrine? [because f]or example, Kaddu does not allege commingling of funds and other assets, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one corporate entity as a mere shell or conduct for the affairs of the other? and identical directors and officers.?? (Id. at p.6:19-25, citing Sonora Diamond Corp. v. Super. Ct. (Sonora Union High School Dist.) (2000) 83 Cal.App.4th 523, 538-539.)
Although the TAXC added new allegations addressing these deficiencies, Kaddu fails to offer evidence regarding these allegations.? For example, Kaddu?s evidence does not demonstrate that the Sanouillets ever? ?held themselves out as personally liable for the debts of the corporation,? ?commingled personal and business records, ?requested that Sandrine Cornet open the business account with their address so that they could receive bank statements and monitor restaurant related finances as part of their control of Opa Verde,? ?hired attorneys for Opa Verde,? ?concealed and misrepresented the identity of the responsible ownership, management, and financial interest, holding out Sandrine Cornet as the sole equitable owners although Arlette Gauze Sanouillet and Remy Sanouillet were also equitable owners,? ?diverted assets from Opa Verde, Inc. to Cross-Defendant Sandrine Cornet, to the detriment of the creditors,? ?formed and used Opa Verde, Inc. to transfer to it the existing liability of another person or entity, namely that of Sandrine Cornet.?? (TAXC, ? 10.)? In fact, Kaddu presents evidence to the contrary.? (See Cornet depo, p.56:12-14, 62:7-17 (Sanouillets did not become investors in restaurant or corporation, rather was a loan), 124:23-25, 125:1-25, 126:1-25, 127:1-11 (formation of Opa Verde at suggestion of Dean Singha, not Sanouillets), 128:7-24 (obtained insurance for Opa Verde), 264:6-25, 265:1-3 (prepared articles of incorporation for Opa Verde and Opa Verde had an agent), 266:3-22 (Dean Singha told Sandrine Cornet to open a corporation), 267:4-6 (no stock issued to Sanouillets), 267:20-24 (created articles of incorporation for Opa Verde), 268:5-8 (Opa Verde is still active), 268:15-17 (Sandrine Cornet opened bank accounts for Opa Verde).)? Kaddu fails to demonstrate a triable issue of material fact as to whether there is such a unity of interest and ownership between Opa Verde and the Sanouillets such that the individuality, or separateness, of the Sanouillets and Opa Verde have ceased, and that the facts are such that an adherence to the fiction of the separate existence of Opa Verde would, under the particular circumstances, sanction a fraud or promote injustice.
Kaddu?s objections do not quote or set forth the objectionable statement or material to which it objects and thus violate Rule of Court 3.1354, subdivision (b).? The objections are therefore OVERRULED in their entirety.
Second cause of action for declaratory relief
The second cause of action seeks a declaration that Kaddu is entitled to payments of funds from all cross-defendants.? A claim for declaratory relief is one pursuant to Code of Civil Procedure section 1060, and allows for ?[a]ny person interested under a written instrument, excluding a will or a trust, or under a contract? [to] bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.?? (Code Civ. Proc. ? 1060.)? Here, the contracts at issue are the subject of the first cause of action.? For the reasons stated above, the Sanouillets met their initial burden to demonstrate that they are not liable under any theory as to those contracts, and, in opposition, Kaddu fails to demonstrate the existence of a triable issue of material fact as to whether they are entitled to a declaration regarding those contracts.
Third cause of action for accounting
The third cause of action for accounting is dependent on the existence of either a partnership or joint venture relationship or that the Sanouillets are the alter ego of Opa Verde.? (See TAXC, ? 55.)? For reasons stated above, the Sanouillets meet their initial burden with regards to the third cause of action, and in opposition, Kaddu fails to demonstrate the existence of a triable issue of material fact as to whether there exists a relationship or other circumstances that require an accounting.
Accordingly, the Sanouillets? motion for summary judgment is GRANTED.? After Sanouillets have served notice of entry of the order signed by the Court, Sanouillets shall present a judgment of dismissal.
Sandrine Cornet and Opa Verde?s motion for summary adjudication of the second cause of action for declaratory relief
Sandrine Cornet and Opa Verde move for summary adjudication of the second cause of action for declaratory relief, arguing that the cause of action merely addresses past wrongs.? The second cause of action alleges that Kaddu ?is entitled to reimbursement from Cross-Defendants for the reasonable value of rent, or quantum meruit for rent, utilities, maintenance, licenses, permits, vendor accounts, insurance, and/or upkeep relating to Cross-Defendants? use and occupation of the Premises between December 1, 2011, and approximately October 31, 2012, and is entitled to funds belonging to Kaddu, Inc., in the form of Groupon payments that Cross-Defendants retained for themselves although such payments were earned prior to December 1, 2011? to payment of the funds that Cross-Defendants deposited into escrow, as well as of the funds that Cross-Defendants promised to deposit into escrow, as such funds became Kaddu, Inc.?s property after Cross-Defendants failed to perform their obligations to close escrow.?? (TAXC, ? 51.)
Here, Cornet and Opa Verde argue that the second cause of action is deficient as a matter of law, not that Kaddu lacks evidence to support such a cause of action.? ?When a motion for summary judgment is used to test whether the complaint states a cause of action,?[the Court]?treat[s] the motion as a motion for judgment on the pleadings.?? (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118, citing People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.)
?A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court.? ?(Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947, citing Cal. Code Civ. Proc. ? 1060 and Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719.) ?If ?the rights of the complaining party have crystallized into a cause of action for past wrongs [such] that a money judgment will fully resolve the dispute, and that no continuing relationship exists to justify a declaration of future rights? an actual controversy which can be resolved by means of declaratory judgment? is not presented. ?(See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 (stating that ?[d]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs?); see also Code Civ. Proc. ? 1061 (stating that ?[t]he court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances?); see also General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470 (stating that ?[t]he declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action?; also stating that ?[t]he availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief?); see also Pacific Electric Ry. Co. v. Dewey (1949) 95 Cal.App.2d 69, 73 (stating that ?declaratory relief is unavailable for the determination of issues involved in an already pending action or to prevent such issues from being presented to a jury?); see also Warren v. Kaiser Foundation Health Plan, Inc. (1975) 47 Cal.App.3d 678, 683 (stating that ?the court may refuse to entertain the action where ?the rights of the complaining party have crystallized into a cause of action for past wrongs, [and] all relationship between the parties has ceased to exist??).)
Here, the declaratory relief cause of action addresses the same issues as the first cause of action.? In opposition, Kaddu does not dispute this.? (See Kaddu?s opposition to motion for summary judgment (?Opposition?), p. 8:20-21 (stating that ?Kaddu and the Cross-Defendants have an actual controversy relating to the legal rights and duties set forth in the contracts between them?).)? Kaddu argues that the alleged controversy nevertheless ?is prospective in nature, because it pertains to funds that are currently in escrow (TAXC ? 51), who is responsible for the premises after December 1, 2011 (TAXC, ? 53), and whether Plaintiffs and Cross-Defendants? conduct in filing a lawsuit before mediation will require them to pay attorney fees to Kaddu (TAXC at 13:2-3).?? (Opposition, p.8:21-25.)? However, the resolution of the first cause of action for breach of contract will necessarily determine all issues encompassed by the second cause of action.
Accordingly, Cornet and Opa Verde?s motion for judgment on the pleadings as to the second cause of action is GRANTED without leave to amend.
The Court will prepare the order.