Motion for Judgment on the Pleadings as to the Complaint (Judge Elaine Lu)

Case Number: 19STCV24755    Hearing Date: August 30, 2022    Dept: 26

Superior Court of California

County of Los Angeles 

Department 26 









Case No.:  19STCV24755


Hearing Date:  August 30, 2022





On July 15, 2019, plaintiff ASAP Contractors, Inc. (“Plaintiff”) commenced this action against defendants Sarmad Sadeghi (“Sadeghi”), Afsaneh Barzi (“Defendant Barzi”), the Sadeghi Family Trust, and Does 1 to 10, alleging causes of action for breach of contract, foreclosure of mechanic’s lien, fraud, and negligent misrepresentation.

The complaint alleges in relevant part the following:  Around November of 2018, Plaintiff entered into a contract with Sadeghi to remodel a portion of the property at 912 Regent Park Drive, La Canada, California (“Property”).  (Id. ¶ 12.) A copy of the contract is attached to Plaintiff’s complaint. (Exh. A.) Based on a 328 sq. ft. estimate of the Property, Plaintiff and Sadeghi initially agreed to a $130,000 price. (Complaint ¶ 15, Exh. A.) When the Property was later determined to be 470 sq. ft., Plaintiff negotiated a written change order for an additional $50,000 with a singular “defendant.” (Complaint ¶ 15.) A copy of the change order is also attached to the complaint. (Exh. B.) After performing a substantial amount of its obligations, Plaintiff determined the actual square footage of the Property to be 650, at which point “Defendants” (plural) orally agreed to pay Plaintiff based on a 650 sq. ft. scale and approved Plaintiff to finish the project. (Complaint ¶ 22.) On or about March 20, 2019, “Defendants” (plural) wrongfully ejected Plaintiff from the Property, which precluded Plaintiff from completing its obligations and obtaining the full amount of monies due in the sum of $139,600. (Id. ¶¶ 27-28.)

On August 4, 2022, Defendant Barzi, alone, filed the instant motion for judgment on the pleadings with respect to the first cause of action for breach of contract.  On August 16, 2022, Plaintiff filed an opposition, and on August 23, 2022, Defendant Barzi filed a reply.


A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Id. at 1013.) In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)


            Defendant Barzi argues that she was not a party to the contract in question and is therefore entitled to judgment as a matter of law on the cause of action for breach of contract. Plaintiff responds by noting Defendant Barzi failed to meet and confer before filing the instant motion for judgement on the pleadings as required by Code of Civil Procedure § 439(a). Plaintiff also requests leave to amend should the court grant the instant motion.

Meet and Confer

Per CCP section 439(a), before filing a judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion for judgment on the pleadings…” (CCP § 439(a).) However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (CCP § 439(a)(4) (emphasis added).)

Plaintiff offers evidence that Defendant Barzi failed to meet and confer. (Carlo Ignacio Decl. ¶ 3.) While Defendant Barzi does not dispute that she failed to do so, and is admonished to do so in the future, this is not grounds to grant or deny the motion.[1] The Court will rule on the merits.


To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Further, when a written instrument that is the foundation of a cause of action is attached to a pleading as an exhibit and incorporated into it by proper reference, the court may, on demurrer, examine the exhibit and treat the pleader’s allegations of its legal effect as surplusage. (Hill v. City of Santa Barbara (1961) 196 Cal. App. 2d 580, 586.)

            Here, Defendant Barzi argues that Plaintiff cannot establish the existence of a contract between the two. The contract attached to Plaintiff’s complaint clearly includes Sadeghi’s name and not Defendant Barzi’s name. (Exh. A.) Likewise, the change order attached to Plaintiff’s complaint also clearly includes Sadeghi’s name and not Defendant Barzi’s name. (Exh. B.) Though the complaint does refer to plural “Defendants” in general, at no point does the Complaint explicitly refer to Defendant Barzi or state the name “Barzi.” (Id. ¶¶ 14-18, 20-28.) The written contracts attached to Plaintiff’s complaint clearly indicate that Defendant Barzi was not a party to the contract. Because Plaintiff does not dispute this, the Court finds Plaintiff cannot prove a breach of contract against Defendant Barzi.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedysupra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

            Here, Plaintiff proffers no additional facts and offers no solutions for how it could successfully amend its complaint to allege a cause of action for breach of contract against Defendant Barzi—especially considering that Defendant Barzi’s name is clearly not on the original contract or subsequent change order attached to Plaintiff’s complaint. Plaintiff only offers case law for the general proposition that the Court is allowed to offer leave to amend. The Court finds that Plaintiff has not met its burden of showing why leave to amend should be granted in this case.  If, however, in the course of pursuing discovery, Plaintiff develops a basis for stating a breach of contract claim against Barzi, Plaintiff may at that time file a noticed motion for leave to amend the complaint.


Accordingly, the motion for judgment on the pleadings by Defendant Afsaneh Barzi is GRANTED WITHOUT LEAVE TO AMEND with respect to the first cause of action for breach of contract.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: August 30, 2022                                                      ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court

[1] Going ahead, if any moving party fails to meet and confer as required by statute, the corresponding motion will be taken off calendar.