Opinion
B160128.
7-30-2003
GEORGE AJRAB et al., Plaintiffs and Appellants, v. HOUSEHOLD FINANCIAL SERVICES, Defendant and Respondent.
Eric M. Papp; George Ajrab and Egenie Ajrab, in propria persona, for Plaintiffs and Appellants. Katten Muchin Zavis Rosenman, Stuart M. Richter and Gregory S. Korman, for Defendant and Respondent.
Plaintiffs George Ajrab and his mother, Egenie Ajrab, appeal the dismissal of their lawsuit against defendant Household Financial Services, Inc. following the trial courts grant of the latters demurrer to the plaintiffs complaint for declaratory relief. Finding no error, we affirm the judgment
FACTS
In January 2002, plaintiffs and defendant entered into an agreement (the "Agreement") pursuant to which plaintiffs promised to make specified payments to defendant in exchange for defendants promise to forbear from foreclosing on property securing plaintiffs delinquent mortgage loan. The Agreement, which plaintiffs included as an exhibit to their complaint, recites that, "as of January 19, 2002, the amount due on account of the Loan is $ 108,709.83" and provides that plaintiffs are to pay defendant the sum of $ 37,415 on or before January 31, 2002, and are thereafter to make monthly payments of $ 1,208.45, commencing on February 1, 2002. In paragraph 9 of the Agreement, plaintiffs specifically acknowledge the accuracy of the foregoing payment amounts: "Ajrab has fully investigated all facts surrounding the recitals contained in this Agreement and has had the opportunity to consult its own legal counsel or other consultants. Ajrab acknowledges that the Note is fully enforceable, that the Lender has properly calculated the amount of delinquency on the Note and the proper amount is set forth in this Agreement." Paragraph 12 of the Agreement further provides: ". . . Ajrab also agrees not to assert any claim or defense against [defendant] at any future time with regard to any of the following: [P] . . . (b) The amounts claimed as due and owing to [defendant], described in the Recitals."
On March 15, 2002, plaintiffs filed a complaint against defendant, alleging a single cause of action for declaratory relief. Specifically, plaintiffs sought a judicial declaration of the amount of money they owe under the Agreement. Plaintiffs contend that the parties dispute the amount due and owing to defendant, without specifying the disputed amounts or the circumstances giving rise to the dispute.
Defendant demurred to the complaint, claiming that the suit was barred by the express terms of the Agreement. The trial court sustained the demurrer without leave to amend. Plaintiffs timely appealed.
DISCUSSION
Plaintiffs sole contention on appeal is that the trial court erred in failing to grant them leave to amend their defective complaint.
"The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject. In Maguire v. Hibernia Savings & Loan Soc. (1944) 23 Cal.2d 719, 146 P.2d 673, the court said: 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 respective parties under a written instrument and requests that these rights and duties be adjudged by the court. . . ." (5 Witkin, California Procedure (4th ed. 1997), Pleadings, § 817, p. 273.) However, "unless all the allegations of a complaint show that an actual controversy does exist between the parties, there is no basis for declaratory relief." (American Mission Army v. City of Lynwood (1956) 138 Cal. App. 2d 817, 819, 292 P.2d 533.) The existence of an actual, present controversy must be pleaded specifically. General statements about a controversy are useless; the facts of the respective claims concerning the subject must be given. (City of Alturas v. Gloster (1940) 16 Cal.2d 46, 48, 104 P.2d 810; Frederick v. North Side Water Co. (1942) 49 Cal. App. 2d 489, 491, 122 P.2d 59.) Indeed, "to say that a controversy exists is a mere conclusion; it is not a statement of ultimate facts that are indispensable to a valid pleading." (American Mission Army v. City of Lynwood , supra, 138 Cal. App. 2d at p. 819.)
Here, the operative language of the complaint states: "An actual controversy has arisen and now exists between plaintiffs . . . and defendants . . . concerning their respective rights and duties in that plaintiffs . . . contend that they owe a certain amount of money under the contract . . . whereas defendants . . . dispute these contentions and contend that [plaintiffs] owe a different and substantially greater amount of money under said contract for the property and have threatened to foreclose on said property as a result." (CT 4) This is a mere conclusion that a controversy exists; it is devoid of "ultimate facts that are indispensable to a valid pleading." (American Mission Army v. City of Lynwood, supra, 138 Cal. App. 2d at p. 819.)
Plaintiffs apparently recognize that the complaint fails to state a cause of action for declaratory relief, for they argue that, "while plaintiffs Complaint was framed to allege only Declaratory Relief, the allegations contained in the Complaint also set forth allegations which, if amended, would support Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, and Fraud." Plaintiffs therefore conclude that the trial court abused its discretion in dismissing the complaint without leave to amend.
The problem with plaintiffs argument is that the complaint contains no facts which would state a cause of action for breach of contract, breach of the covenant of good faith and fair dealing, or fraud. Rather, as set forth above, the complaint merely states that a controversy exists regarding the sums due under the agreement. However, there is no allegation that plaintiffs performed their obligations under the Agreement, nor that defendant breached its obligations; thus, no cause of action for breach of contract is stated. Neither is there any factual allegation which would support a cause of action for breach of the covenant of good faith and fair dealing or fraud. Thus, this is not a case where the complaint alleges " facts showing a right to some relief . . . but is only defective with respect to the manner or form in which the facts warranting relief have been pleaded. [Citations.]" (Johnson v. County of Los Angeles (1983) 143 Cal. App. 3d 298, 306, 191 Cal. Rptr. 704.)
In both their opposition to the demurrer, and in their opening brief on appeal, plaintiffs are silent as to what facts they would allege in an amended complaint which would state a cause of action. Thus, plaintiffs have simply failed to sustain their burden of showing in what manner they can amend the complaint to state a cause of action. Under these circumstances, the trial court did not abuse its discretion in dismissing the complaint without leave to amend.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P.J., MOSK, J.