Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MC017905, Carlos P. Barker, Judge.
Glickfeld, Fields & Jacobson and Craig M. Fields for Plaintiff and Appellant.
Parker, Milliken, Clark, O’Hara & Samuelian and Gary Ganchrow for Defendant and Respondent.
CHAVEZ, J.
Setha Ieng Enterprises (appellant) appeals from a judgment entered after the trial court sustained, without leave to amend, J.E. DeWitt, Inc.’s (respondent) demurrer to appellant’s complaint. Appellant contends that the trial court erred in sustaining respondent’s demurrer to appellant’s causes of action for: (1) rescission of contracts, and (2) declaratory relief, seeking a judicial determination that the contracts alleged should be rescinded. Appellant further contends that the trial court abused its discretion by denying appellant leave to amend. Because appellant has not alleged a contract to which respondent is a party, we shall affirm the judgment.
BACKGROUND
Appellant’s first amended complaint (FAC) alleged the following facts: appellant was induced, on the basis of false representations made by Moawia Alazawi (Alazawi) and U.S. Ultramar (Ultramar), to purchase a gas station business from Alazawi and Ultramar. Respondent is the landlord of the property on which the gas station is located. As part of appellant’s purchase of the gas station business, appellant alleged that it entered into two agreements: (1) “a written agreement with Defendants Alazawi, Ultramar . . . whereby [Alazawi and Ultramar agreed to sell] Defendants’ gasoline service station business . . . to [appellant] for and in consideration of Two Hundred Thirty Nine Thousand Eighty Four & 04/100,” and (2) an “Assignment of Branded Supply Agreement with Defendants wherein it agreed to purchase certain refined petroleum products from [respondent] and to sell such products from the Premises” (assignment agreement). The assignment agreement, which is the only agreement appellant now claims forms the basis of its causes of action against respondent, was an agreement “by and between” Alazawi and appellant to which respondent “consented and agreed.”
Appellant filed its initial complaint against Alazawi, Ultramar, and respondent on February 2, 2007. The complaint alleged four causes of action: (1) fraud against Alazawi and Ultramar; (2) negligent misrepresentation against Alazawi and Ultramar; (3) “rescission of contracts” against Alazawi, Ultramar, and respondent; and (4) declaratory relief against Alazawi, Ultramar, and respondent.
The causes of action asserted against Alazawi and Ultramar are not before us in this appeal.
Respondent filed its demurrer to the initial complaint on April 5, 2007. The hearing on the demurrer was calendared for May 10, 2007. However, appellant voluntarily filed the FAC on April 9, 2007. The FAC named the same parties as the first complaint, and the allegations were identical as to respondent.
On May 8, 2007, respondent filed its demurrer to the FAC. Respondent’s demurrer was based on its position that appellant had not alleged a contract between appellant and respondent. Appellant filed its opposition on June 6, 2007. In its opposition to respondent’s demurrer, appellant argued that respondent was a third party beneficiary to both agreements alleged. Respondent filed its reply on June 7, 2007.
Appellant acknowledges that its opposition was not timely filed. However, respondent raised this issue in its reply papers, and the trial court apparently decided to consider appellant’s opposition on the merits. That decision is not before us on appeal.
The hearing on respondent’s demurrer took place on June 14, 2007. At the hearing, respondent’s counsel stated, “There is no contract between my client and the [appellant] to allege,” and the trial court responded, “That is what it appears.” On June 20, 2007, the trial court entered respondent’s proposed judgment of dismissal. On August 21, 2007, respondent served by mail its notice of entry of judgment. Appellant’s notice of appeal was timely filed on September 21, 2007.
DISCUSSION
I. Standards of Review
When reviewing the ruling on a demurrer, we “‘review the complaint de novo to determine whether . . . [the] complaint alleges facts sufficient to state a cause of action under any legal theory.’ [Citation.]” (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 806.) If a proper ground for sustaining the demurrer exists, we affirm the demurrer even if the trial court relied on an improper ground. (Ibid.) “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation]. We also consider matters which may be judicially noticed.’ [Citation]. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation].” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations].” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
II. Appellant’s Causes of Action Against Respondent Fail as a Matter of Law Because Respondent is Not a Party to Either Contract Alleged by Appellant
Both of appellant’s causes of action are based on contract. The first cause of action, for rescission, must fail without the existence of a contract between the parties. The second cause of action seeks declaratory relief in the form of a judicial determination that the agreements entered into between the parties should be rescinded. Again, without the existence of a contract between the parties, this cause of action must fail.
Appellant argues that the FAC “does allege at least one contract between [appellant] and [respondent] – the Branded Supply Agreement through the [a]ssignment [a]greement.” The assignment agreement is signed by Alazawi as assignor and appellant as assignee. Beneath their signatures appears the language: “agreed to and acknowledged by [respondent],” and the signature of respondent’s president.
Under basic principles of law, a contract is a bargained-for exchange. (Bard v. Kent (1942) 19 Cal.2d 449, 452.) “‘[T]he consideration for a promise must be an act or a return promise, bargained for and given in exchange for the promise. [Citations.]’” (Levy v. Bellmar Enterprises (1966) 241 Cal.App.2d 686, 691.) Here, Alazawi, as assignor, agreed to “sell[], transfer[], assign[], and deliver[] to [appellant], for good and sufficient consideration, receipt of which is hereby acknowledged, all right, title and interest in and to the Branded Supply Agreement.” Appellant, as assignee, agreed to provide Alazawi with such consideration in order to gain Alazawi’s right to distribute products under the Branded Supply Agreement.
Respondent, in merely acknowledging and agreeing to the transfer between Alazawi and appellant, did not become a party to the assignment agreement. As appellant argued in its opposition to respondent’s demurrer, respondent became a third party beneficiary to the assignment agreement. (See Vallely Investments, L.P. v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 822 [assignment agreement is “enforceable by the landlord as a third party beneficiary”].) As third party beneficiary to the contract alleged, respondent was not the proper object of appellant’s causes of action based on rescission. (See Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 959-960 [“Civil Code section 1689 limits grant of rescission rights to the contracting parties. . . . [The third party beneficiary], not having participated in the agreement, not having undertaken any duty or given any consideration, is a stranger to the agreement, with no legitimate interest in voiding it”].)
III. The Trial Court Did Not Abuse its Discretion by Denying Appellant Leave to Amend
Appellant argues that the trial court should have granted appellant leave to amend its complaint. In support of this argument, appellant points to agreements that allegedly exist between appellant and respondent that were not mentioned at all in the FAC or at any other time prior to the trial court’s ruling on respondent’s demurrer. Those agreements are a lease, an amendment to lease, and a sublease. Appellant seeks leave to amend its complaint to encompass allegations relating to these three agreements, claiming that it is “entitled to show this Court in the first instance in what manner it could have amended the [FAC].”
We reject appellant’s attempt to rely on contracts which were not pled in the FAC in order to gain the opportunity to amend the FAC. While the cases cited by appellant provide support for the proposition that an appellant may amend a complaint to expand upon facts already alleged, or present new theories of liability in connection with facts already alleged, they do not provide this court with the authority to consider facts and contracts not referenced on the “face of the complaint.” (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959 [“[a] demurrer is directed to the face of a complaint”].)
Appellant first cites Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. In Angie M., the Court of Appeal held that it was an abuse of discretion for the trial court to refuse to allow amendment of a complaint for intentional infliction of emotional distress where the appellant could have amended the complaint to include facts regarding the nature and extent of her emotional distress in order to satisfy the requirement that such distress must be “severe.” Thus, the court permitted elaboration upon the facts already alleged in order to allow the appellant an opportunity to plead the requisite degree of distress. Appellant also cites McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304. In McDonald, the plaintiff sued his former employer for injuries from asbestos exposure. The trial court sustained the defendant’s demurrer to the plaintiff’s cause of action for punitive damages without leave to amend. (Id. at p. 299.) The Court of Appeal reversed, finding that the plaintiff should have been allowed to amend in order to plead that his employer knew and concealed that the plaintiff was suffering from a work related injury. (Id. at p. 303.) Again, the court allowed for elaboration upon a set of facts already alleged. None of the authority cited by appellant allows this court to consider an entirely new set of facts not presented to the trial court. As to its causes of action against respondent, appellant has alleged “facts which do not entitle plaintiff to relief on any legal theory.” (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.
[3] We note that rescission is not a cause of action. The Civil Code provides for rescission by the act of the parties, not the court. (Civ. Code, §§ 1689, 1691.) The rescinding party may, however, seek relief in court by bringing an action to recover any money or thing owing to him or her by any other party to the contract as a consequence of the rescission, or by asserting the rescission by way of defense or cross-complaint. (Civ. Code, § 1692; see also 55 Cal.Jur.3d (2008) Restitution, § 104.)
[4] Although appellant did not allege the Branded Supply Agreement itself as a basis for its causes of action against respondent, we note that the Branded Supply Agreement, entered in January 1999, was a contract between respondent and Alazawi, “DBA U.S. Ultramar.” Because appellant was not a party to this agreement, appellant could not seek to rescind it. (See Civ. Code, § 1689.)
[5] Because appellant’s failure to allege a contract between appellant and respondent completely disposes of both causes of action, we do not address the parties’ competing arguments as to whether the complaint alleged any wrongful acts against respondent that would warrant rescission.
[6] Appellant explains that on August 6, 2007, in response to Alazawi’s cross-complaint against appellant, respondent, and the City of Palmdale, appellant filed its cross-complaint alleging breach of contract claims against Alazawi, Ultramar, and respondent. Appellant’s cross-complaint alleged breach of contract causes of action under five written agreements: (1) the Branded Supply Agreement; (2) the assignment agreement; (3) the lease; (4) the amendment to lease; and (5) the sublease. Therefore, appellant shall have the opportunity to litigate any breaches related to the contracts on which he attempts to rely in support of his position in favor of amendment.
[7] Following oral argument appellant filed a request for judicial notice asking us to take notice of a nonpublished opinion (Alazawi v. Ieng. (Apr. 29, 2008, B198892)). The case appellant brings to our attention arose out of an unlawful detainer action filed by Alazawi against appellant. One of appellant’s contentions on appeal in that matter was that certain overpayments for fuel which appellant had purchased from respondent should have been credited to appellant’s past due rent obligations. Because affirmative defenses and cross-claims may not be asserted in an action for unlawful detainer, Division Five of the Second Appellate District concluded that the trial court did not err in failing to deduct from the rent due the monies respondent owed appellant for overpayments. However, the court noted “if [appellant’s] fuel account with [respondent] continues to reflect a credit balance, and [respondent] does not refund that money to [appellant], its recourse is to file a lawsuit against [respondent].” (Alazawi opn. at p. 4.) Appellant protests that the FAC “in this action is the lawsuit that [appellant] brought against [respondent] on these agreements.” However, a claim for fuel overpayments was not made in the FAC. Further, such a claim may be brought by appellant despite our conclusion that respondent is not a proper object of appellant’s causes of action for rescission and declaratory relief under the contracts alleged in the FAC. Therefore, although we take notice of the case as requested, it does not change the outcome of this appeal.