Opinion
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from judgments of the Superior Court of Imperial County Super. Ct. No. ECU02742, Christopher W. Yeager, Judge.
McCONNELL, P. J.
Phillip C. Sanders appeals judgments of dismissal entered after the trial court sustained without leave to amend the demurrers of Alcoholics Anonymous World Services, Inc. (AAWS) and Narcotics Anonymous World Services, Inc. (NAWS) to the complaint's causes of action for breach of contract and fraud. Sanders contends the complaint sufficiently pleaded a cause of action for breach of contract against both entities, it sufficiently pleaded a cause of action against AAWS for fraud and the court improperly denied him leave to amend the complaint. He also contends the clerk of court erred by refusing to enter a default against AAWS based on his status as a vexatious litigant. We affirm the judgment insofar as it concerns the fraud cause of action, but we reverse the judgment insofar as it concerns the breach of contract cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2005 Sanders, who is serving a life sentence without the possibility of parole in Calipatria State Prison, filled out and signed a one-page preprinted form titled "AA/NA MEXICAN FOOD SALE," to order burritos and tamales at a total cost of $21.50. The items were to be delivered on May 1.
The bottom portion of the form stated "TRUST ACCOUNT WITHDRAWAL ORDER," and authorized the prison warden to withdraw the $21.50 from Sanders's trust account "for the purposes stated below." The form described the "purposes" as "AA/NA Mexican food sale, 10% to the inmate welfare fund and 100% of the remaining profits will be divided and donated to AA/NA fund and other charities." (Some capitalization omitted.) The form contained the signature of a prison employee who approved the withdrawal.
In October 2005 Sanders, in propria persona, filed a form complaint for breach of contract and fraud against AAWS, NAWS, and prison employees Stuart J. Ryan, Gerald J. Janda and Mary Sosa. Sanders attached a copy of the order form as the alleged contract between him and the defendants, and alleged in the body of the complaint that the defendants failed "to deliver food as agreed" or to refund his money. The fraud cause of action alleged, "Irrespective of any actual delivery regardless of caus[e]. No refund what so ever [sic] would be given." It also alleged, "Quality of the food offered was not guaranteed and no effort to refund monies was ever intended if satisfaction was not delivered." The complaint prayed for compensatory damages of $21.50 and punitive damages of $50,000.
The individual defendants successfully demurred to the complaint and this court affirmed the judgment of dismissal. (Sanders v. Ryan (Jan. 29, 2007, D048208) [nonpub. opn.].) Before they were dismissed, however, they moved for a prefiling order based on Sanders's status as a vexatious litigant. The court entered an order on April 17, 2006, and it required Sanders to obtain court approval before filing any new litigation in propria persona.
AAWS and NAWS separately demurred to the complaint. In his opposing papers, Sanders explained the distribution of Mexican food to prisoners began, but it was halted when many of them "became ill upon consuming the food . . . and it was determined that the food was tainted and unfit for consumption." Sanders also stated the prison informed inmates they would not receive refunds, but " 'substitute food' would be given." Further, Sanders learned the substitute food was "regular prison food to be prepared in the prison facility inmate kithchens [sic]," and it would not be burritos and tamales. When the prison denied Sanders a refund he pursued administrative remedies and then sued.
In its reply memorandum of points and authorities, NAWS argued as an additional ground for dismissal that Sanders was previously designated a vexatious litigant and had not obtained a prefiling order to commence this action.
The court sustained AAWS's and NAWS's demurrers without leave to amend, and judgments of dismissal were entered for them. Neither the orders nor the judgments mention Sanders's vexatious litigant status.
DISCUSSION
I
Breach of Contract
A demurrer "tests the legal sufficiency of factual allegations in a complaint." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42.) In reviewing a demurrer ruling, this court exercises independent judgment in determining whether the complaint's factual allegations sufficiently state a cause of action. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We treat the demurrer " 'as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' " (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Sanders contends the complaint sufficiently alleges a breach of contract action against AAWS and NAWS and the court erred by sustaining their demurrers. The essential elements of contract formation are parties capable of contracting, their mutual assent, a lawful object and consideration. (Civ. Code, §§ 1550, 1565.) To prevail in a breach of contract action, a plaintiff must plead and prove "(1) a contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff." (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1545.) A written contract is usually pleaded by setting out its terms verbatim in the body of the complaint, or by attaching a copy of the contract and incorporating it in the complaint by reference. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 479, p. 572.)
We must construe the allegations of the complaint liberally. (Code Civ. Proc., § 452.) The complaint names AAWS and NAWS as defendants, and incorporates the food order form by reference, and thus the complaint adequately alleges the "AA" and "NA" in the food order form mean AAWS and NAWS, respectively. AAWS concedes we must accept as true the complaint's factual allegation that the "AA" referred to in the food order form means AAWS. At the trial court, NAWS argued it "exists to administer the Fellowship Intellectual Property Trust that holds the trademarks for Narcotics Anonymous and the copyrights for Narcotics Anonymous recovery literature," and it had no agency or other relationship with any of the more than "30,000 [NA] groups or meetings in over 108 countries around the world," including any local NA group "that may have been involved in the food sale." On appeal, however, NAWS admits these claims were not properly before the court on the demurrer.
Both AAWS and NAWS contend that even assuming their names are synonymous with the "AA" and "NA" referred to in the order form, the presence of their names does not show they were the contracting parties. They assert the order form merely shows Sanders was a party to the agreement, but it does not reveal the identity of the party or parties selling the Mexican food in exchange for the purchase price. AAWS asserts Sanders placed his order "with an unknown Mexican restaurant through the California prison system," an allegation that does not appear in the order form or the body of the complaint, and is thus immaterial.
AAWS also asserts the form cannot be a contract with it because there "are no terms requiring any performance by [it], no signature on behalf of [it], and indeed no indication whatsoever that [AA] was even aware of [Sanders's] existence before he filed suit." NAWS asserts the complaint does not allege it "offered to provide food in exchange for money, or that [it] received other consideration."
We are unpersuaded by the defendants' positions. "The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe." (Meyers v. Benko (1976) 55 Cal.App.3d 937, 942-943.) The food order form is in the nature of a purchase order. A purchase order may, of course, constitute a contract when there is an offer and acceptance between the parties and adequate consideration, which is ordinarily the purchase price of the goods. (See, e.g., Carrier Corp. v. Detrex Corp. (1992) 4 Cal.App.4th 1522, 1526, fn. 3; Lockheed Electronics Co. v. Keronix, Inc. (1981) 114 Cal.App.3d 304; Israel v. Campbell (1958) 163 Cal.App.2d 806, 812-813; Colonial W. M. Co. v. County of L.A. (1936) 15 Cal.App.2d 536, 539; Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 644.)
A reasonable person presented with the order form here would assume AAWS and NAWS held or sponsored the food sale to raise funds for themselves. It appears from the form that AAWS and NAWS made an offer to the prisoners to purchase food items for specified prices, and Sanders accepted the offer when he signed the form and authorized the withdrawal of the funds from his trust account. " 'An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.' [Citation.] This definition makes it clear that the offeree may create a contract without further action by the offeror." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 125, p. 165.) Notably, the order form does not indicate that any party other than AAWS and NAWS solicited funds from Sanders by offering him a delivery of Mexican food.
To constitute a contract, AAWS's and NAWS's signatures were not required on the order form. In a standard purchase order for personal property of such a limited value, the seller's signature would not necessarily appear. Further, the writing was not required to expressly state AAWS and NAWS agreed to provide the food items in exchange for the purchase price, or consideration, as those terms are implied from the form itself. Additionally, the complaint adequately alleges breach of contract, as it states the defendants did not deliver the food or provide a refund. The reasons for the nondelivery are not important on demurrer.
It appears undisputed that Sanders ordered Mexican food items, paid for them, did not receive them and was denied a refund. Since his alleged compensatory damages are only $21.50, it is indeed unfortunate that none of the named defendants resolved this matter informally to avoid or truncate this lawsuit. Surely, that would have been preferable to the use of judicial resources and legal fees incurred by all defendants. However, because the face of the complaint adequately pleads a cause of action for breach of contract, the claims of AAWS and NAWS that they were not involved in the food sale cannot be determined by demurrer, but must be determined in an evidentiary proceeding such as a motion for summary judgment. "A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. [Citations.] [¶] No other extrinsic evidence can be considered." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 7:8, p. 7-7; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [court erred by considering facts asserted in memorandum supporting demurrer].) "Some of the statutory grounds for demurrer rarely lie because they are not likely to be disclosed on the face of the complaint." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 7:10, p. 7-7.)
Given our holding, we are not required to address Sanders's contention the court abused its discretion by not granting him leave to amend the breach of contract cause of action.
II
Fraud
Sanders does not challenge the court's sustaining of NAWS's demurrer to the fraud cause of action. He does, however, challenge the court's ruling as to AAWS. We conclude the court's ruling was correct.
"The elements of fraud that will give rise to a tort action for deceit are: ' "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage." ' " (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)
"Fraud actions have been classed as 'disfavored,' and are subject to strict requirements of particularity in pleading. The idea seems to be that allegations of fraud involve a serious attack on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Accordingly, the rule is everywhere followed that fraud must be specifically pleaded. The effect of this rule is twofold: (1) General pleading of the legal conclusion of 'fraud' is insufficient; the facts constituting the fraud must be alleged; (2) every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings [citation] will not ordinarily be invoked to sustain a pleading defective in any material respect." (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 669, p. 125; Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)
Sanders's complaint was on a Judicial Council form, but form complaints are not immune from demurrer. "Judicial Council pleading forms have simplified the art of pleading, and have made the task of drafting much easier. Nevertheless, in some cases more is required than merely placing an 'X' in a box. [Citation.] 'Adoption of Official Forms for the most common civil actions has not changed the statutory requirement that the complaint contain "facts constituting a cause of action." ' [Citation.] Thus, . . . to be demurrer-proof, a form 'complaint must contain whatever ultimate facts are essential to state a cause of action under existing statutes or case law.' " (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.)
The form complaint here does not sufficiently state a fraud cause of action. It alleges the misrepresentation was as follows: "Caveats for refund was stated; Note: 'No Money Refunded if you go to AD-Seg, Transfer Out, or are 'C' Status'." This language is derived from this notation on the food order form: "NO MONEY REFUNDED IF YOU GO TO AD-SEG, TRANSFER OUT, OR ARE 'C' STATUS." The complaint alleges the statement was false and the truth was, "Irrespective of any actual delivery regardless of cause. No refund what so ever [sic] would be given."
For concealment, the complaint alleges: "Quality of the food ordered was not guaranteed and no effort to refund monies was ever intended if satisfaction was not delivered." As to a concealment claim, "the defendant must have intentionally concealed or suppressed the [material] fact with the intent to defraud the plaintiff," and "the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact." (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613.)
The complaint does not allege facts to show the notation on the order form regarding refunds was false. Further, the complaint contains no facts that suggest the seller did not intend to guarantee the quality of food, and a seller's refusal to provide a refund for an unsatisfactory product, standing alone, does not show fraud in the inducement. Additionally, the complaint contains no allegations of fact showing any intent to defraud. For the intent element, the complaint merely states: "Refunding of money subject to stated caveats. Irrespective of non-delivery." The complaint also alleges no facts showing justifiable reliance.
Sanders cursorily asserts the court should have granted him leave to amend the fraud cause of action. He does not, however, explain how he could have cured any of the complaint's deficiencies. It is an abuse of discretion to sustain a demurrer without leave to amend only if the plaintiff shows there is a reasonable possibility he or she can cure by amendment any defect the defendant identifies. (Poway Royal Mobilehome Owners Ass'n v. City of Poway (2007) 149 Cal.App.4th 1460, 1470.)
III
Vexatious Litigant Status
Sanders also contends the court clerk improperly denied his request for entry of a default against AAWS based on his status as a vexatious litigant. The clerk's transcript contains a request for entry of default by Sanders filed April 17, 2006. The clerk noted on the form the default was not entered because, "Plaintiff declared vixatious [sic] litigant by the court."
On April 13, the court signed a prefiling order, pursuant to the motion of the individual defendants, that prohibited Sanders "from filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court in which the action is to be filed." The order was filed on April 17. Code of Civil Procedure section 391.7, subdivision (a) provides: "In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed." The vexatious litigant statute defines "litigation" as "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (Code Civ. Proc., § 391.)
Sanders asserts that since the request for default against AAWS was not new litigation, the clerk could not rely on the prefiling order in denying his request for entry of default. To any extent Sanders's assertion has merit, however, he has waived appellate review of it. A clerk's mandatory duty to enter a default when statutory criteria are met is purely ministerial (Code Civ. Proc., § 585, subds. (a), (b) & (c)), and thus the refusal to do so is reviewable by the superior court or the appellate court by writ of mandate. (See Johns v. Mongan (1959) 190 Cal.App.2d 94, 96; W.A. Rose Co. v. Municipal Court (1960) 176 Cal.App.2d 67, 74; California Pine Box & Lumber Co. v. Mogan (1910) 13 Cal.App. 69, 71.) Sanders attempted to bring the matter to the trial court's attention, but he did not seek writ review from this court.
Sanders also contends the court improperly used his status as a vexatious litigant in granting NAWS's demurrer. The record, however, contains no such suggestion the court's rulings on the demurrers and judgments of dismissal were based on Sanders's vexatious litigant status.
DISPOSITION
The judgment is affirmed insofar as it concerns the fraud cause of action. The judgment is reversed insofar as it concerns the breach of contract cause of action, and the court is directed to enter an order denying AAWS's and NAWS's demurrers on the contract cause of action. The parties are to bear their own costs on appeal.
WE CONCUR: HUFFMAN, J., AARON, J.