Judge: Barbara M. Scheper, Case: 21STCV24317, Date: 2022-09-15 Tentative Ruling
Case Number: 21STCV24317 Hearing Date: September 15, 2022 Dept: 30
Dept. 30
Calendar No.
Barani vs. Gambourian, et. al., Case No. 21STCV24317
Tentative Ruling re: Defendant’s Demurrer to First Amended
Complaint; Motion to Strike
Defendant
ServPro Industries, LLC (Defendant) demurs to the First Amended Complaint of Plaintiff
Azar Barani (Plaintiff), and moves to strike portions of the complaint. The
demurrer is sustained.
In reviewing the legal sufficiency
of a complaint against a demurrer, a court will treat the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions, or
conclusions of law. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co.
(1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only
for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The
rules by which the sufficiency of a complaint is tested against a general
demurrer are well settled. We not only treat the demurrer as admitting all
material facts properly pleaded, but also give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on
a demurrer, the complaint must be construed liberally by drawing reasonable
inferences from the facts pleaded. (Wilner
v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling on a demurrer, the
Court may only consider the complaint’s allegations or matters which may be
judicially noticed. (Blank, supra, 39
Cal.3d at 318.) The Court may not consider any other extrinsic evidence or
judge the credibility of the allegations plead or the difficulty a plaintiff
may have in proving his allegations. (Ion
Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is
properly sustained only when the complaint, liberally construed, fails to state
facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)
The FAC alleges that Defendants
stole items from Plaintiff’s home after being sent by Plaintiff’s insurer to
remediate water damages there. (FAC ¶¶ 1-2.) It is alleged that Defendants,
through Defendant John Gambourian (who does
business as a franchisee of demurring Defendant ServPro), took the items
from Plaintiff’s home as part of the remediation process but now refuses to
return them. (FAC ¶¶ 3, 7.) Defendants’
theft allegedly took place on July 1, 2019. (FAC ¶ 19.)
The Court sustained the demurrer to
Plaintiff’s original Complaint on the basis that Plaintiff’s claims were
time-barred based on a clause in the parties’ contract that provided for a
one-year statute of limitations for any claims relating to the subject of the
contract. The provision reads as follows:
7. Any claim by Client for
faulty performance, for nonperformance or breach under this Contract for
damages shall be made in writing to Provider within
sixty (60) days after completion of services. Failure to make such a written
claim for any matter which could have been corrected by Provider shall be deemed a waiver by Client. NO ACTION, REGARDLESS
OF FORM, RELATING TO THE SUBJECT MATTER OF THIS CONTRACT MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CLAIMING
PARTY KNEW OR SHOULD HAVE KNOWN OF THE CAUSE OF ACTION.
(Comp.
Ex. A, p. 2.)
The contract had been attached to
Plaintiff’s Complaint. The FAC now omits the contract, and also asserts a cause
of action for breach of implied-in-fact contract in place of the previous claim
for breach of written contract.
As the Court previously found in its
ruling on the demurrer of Defendant Marquise, Inc., Plaintiff’s omission of the
contract constitutes sham pleadings. “‘Generally,
after an amended pleading has been filed, courts will disregard the original
pleading. However, an exception to this rule is found ... where an amended
complaint attempts to avoid defects set forth in a prior complaint by ignoring
them. The court may examine the prior complaint to ascertain whether the
amended complaint is merely a sham.’ Moreover, any inconsistencies with prior
pleadings must be explained; if the pleader fails to do so, the court may
disregard the inconsistent allegations.” (Larson v. UHS of Rancho Springs,
Inc. (2014) 230 Cal.App.4th 336, 343 [quoting Vallejo Development Co. v.
Beck Development Co. (1994) 24 Cal.App.4th 929, 946].) “[A]s a
matter of law, allegations in a complaint must yield to contrary allegations
contained in exhibits to a complaint.” (Vallejo Development Co. v. Beck
Development Co. (1994) 24 Cal.App.4th 929, 946.)
Plaintiff’s Opposition fails to
explain the inconsistencies between the FAC and original Complaint, and so the
inconsistent allegations are disregarded. In considering the contract attached
to the original Complaint, the Court finds that Plaintiff’s claims are
time-barred based on the one-year limitations provision.
“[P]arties to a contract ‘may agree to a
provision shortening the statute of limitations, ‘qualified, however, by the
requirement that the period fixed is not in itself unreasonable or is not so
unreasonable as to show imposition or undue advantage’ [Citation.]
‘“Reasonable” in this context means the shortened period nevertheless provides
sufficient time to effectively pursue a judicial remedy.’ [Citation.] ‘A
contractual period of limitation is reasonable if the plaintiff has a
sufficient opportunity to investigate and file an action, the time is not so
short as to work a practical abrogation of the right of action, and the action
is not barred before the loss or damage can be ascertained....’ [Citation.] So
long as the time allowed for filing an action is not inherently unreasonable,
California courts afford ‘contracting parties considerable freedom to modify
the length of a statute of limitations.’ [Citation.]” (Wind Dancer Production Group v. Walt Disney
Pictures (2017) 10 Cal.App.5th 56, 73-74.)
The
one-year limitations period set by the contract is not inherently unreasonable
and there is no indication of “imposition or undue advantage.” (Wind Dancer,
supra, at 73.). The time provided is sufficient to allow Plaintiff time
to investigate and file an action. Plaintiff’s claims will thus be time-barred
if they were brought more than one year after Plaintiff knew or should have
known of the cause of action. (Comp. Ex. A, p.
2.)
Plaintiff
alleges that Defendants took possession of Plaintiff’s items on June 26, 2019,
promising to return them after the remediation. (FAC ¶ 25.) On December
4, 2019, Defendants made further misrepresentations to Plaintiff regarding
return of the items, and even returned fake “copycat” items in place of the
real items. (FAC ¶ 25.) No other dates are alleged. Plaintiff filed this action on July 1, 2021.
While the
allegations suggest that Defendants’ misrepresentations to Plaintiff delayed
Plaintiff’s knowledge of Defendants’ wrongful conduct, Plaintiff has not pled
specific facts justifying delayed accrual. “A plaintiff whose complaint shows on its
face that his claim would be barred without the benefit of the discovery rule
must specifically plead facts to show (1) the time and manner of discovery and
(2) the inability to have made earlier discovery despite reasonable diligence.
In assessing the sufficiency of the allegations of delayed discovery, the court
places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations
will not withstand demurrer.’” (Grisham v. Philip
Morris U.S.A., Inc. (2007) 40 Cal.4th 623,
638.) Absent any specific allegations showing the time and manner of
Plaintiff’s delayed discovery, Plaintiff’s claims are time-barred.
Plaintiff argues that the continuing
violation doctrine applies here to bring Plaintiff’s claims within the
limitations period. The Court disagrees.
“The
continuing violation doctrine aggregates a series of wrongs or injuries for
purposes of the statute of limitations, treating the limitations period as
accruing for all of them upon commission or sufferance of the last of them.” (Aryeh
v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1193.)
Consequently, the continuing violation doctrine “allows liability for unlawful
... conduct occurring outside the statute of limitations if it is sufficiently
connected to unlawful conduct within the limitations period.” (Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802.)
There is no authority supporting the
application of the continuing violation doctrine in this context. “[T]he continuing violation doctrine
developed in employment cases dealing with matters such as hostile work
environments, where the claims by ‘[t]heir very nature involve[ ] repeated
conduct’ rather than ‘discrete acts'.” (Komarova v. National Credit Acceptance,
Inc. (2009) 175 Cal.App.4th 324, 344.) The doctrine has been applied beyond
the employment context only in a narrow set of circumstances, such as Rosenthal
Fair Debt Collection Practices Act violations which are similarly based on a
pattern of conduct rather than discrete acts (e.g., “claims of a pattern of
debtor harassment consisting of a series of calls cannot be said to occur on
any particular day”). (Ibid.) Here, Plaintiff’s claims arise from the alleged
theft of Plaintiff’s property; this is far from the employment context, and the
theft constitutes a discrete act rather than a pattern of conduct. The
allegations do not support the application of the continuing violation
doctrine.
Accordingly, the
demurrer is sustained. The motion to strike is denied as moot.