Judge: Deborah C. Servino, Case: 30-2022-01266690, Date: 2023-05-19 Tentative Ruling

Defendant Patricia Mills' demurrer to Plaintiff Thomas Koos' Complaint is sustained with 15 days leave to amend.

Failure to Attach Cause of Action Pages For Common Counts and Quantum Meruit

As a preliminary matter, the court notes that at paragraph 8 on page 2 of the Complaint, Plaintiff indicated that three causes of action (breach of contract, common counts, and quantum meruit) are "attached and the statements above apply to each".  (Complaint, at p. 2.)  The Judicial Council form instructs "(each complaint must have one or more causes of action attached)."  However, Plaintiff only attached the Judicial Council form for a breach of contract cause of action.  He failed to attach forms for common counts and quantum meruit.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:202 [“Tort and contract complaints require attachments: The other Judicial Council form complaints, however, are not complete in themselves. Rather, they are basically shells that identify the parties, and allege proper venue, etc. To state a cause of action, plaintiff must attach one or more cause-of-action pages. These cause-of-action pages contain the charging allegations (“ultimate facts”) relevant to the particular case.”] and ¶ 6:207 [Where there is no cause-of-action page prepared by the Judicial Council, “plaintiff’s attorney is required to draft a cause-of-action page for attachment to the Judicial Council form complaint.”]; Cal. Rules of Ct., Rule 2.112 [Each separately stated cause of action must specifically state its number and its nature].)  Accordingly, to the extent Plaintiff asserts claims for common counts and quantum meruit, the demurrer is sustained with 15 days leave to amend.  

Statute of Limitations

Defendant contends that the claims in the Complaint are barred by the statute of limitations.  “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

There is no dispute that the claims are governed by the two-year statute of limitations.  (Code Civ. Proc., § 339 [the statute of limitations for a cause of action for breach of oral contract is two years.]; Leighton v. Forster (2017) 8 Cal.App.5th 467, 490 [“The two-year statute of limitations in Code of Civil Procedure section 339 governs claims for quantum meruit.”]; Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 997 [a cause of action for common count based on an oral agreement is governed by a two-year statute of limitations].)  “Where the claim of quantum meruit is based upon services performed under a contract that was void or voidable, the limitations period commences to run on either the date the last payment was made toward the attorney fees, or the last date that the attorney performed services in the case. (Leighton v. Forster, supra, 8 Cal.App.5th at p. 490; see Long v. Rumsey (1938) 12 Cal.2d 334, 347 [“any cause of action resting upon an implied promise to pay the value of the services rendered arose at their termination.”].)

Plaintiff alleges Defendant breached the agreement on January 1, 2020.  (Complaint, at p. 3, ¶ BC-2.)  Plaintiff commenced this action on June 24, 2022.  The breach of contract cause of action is time-barred on its face. 

Plaintiff argues that he had a written agreement, but that he turned it over to Defendant with her files and Defendant now denies the existence of a written agreement.  These facts are not alleged in the Complaint.  A demurrer “challenges defects on the face of the complaint, it can refer to matters outside the pleading only if those matters are subject to judicial notice.”  (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 834; Code Civ. Proc., § 430.30, subd. (a).) 

Plaintiff’s Complaint does not allege the date of Defendant’s last payment or when Plaintiff’s services terminated.  The Complaint only alleges Defendant breached the oral agreement on or about January 1, 2020 by refusing to make any payment for services rendered.  (Complaint, at p. 3, ¶ BC-2.)  Plaintiff commenced this action on June 24, 2022, more than two years after the alleged breach.  Accordingly, Plaintiff’s claims for common counts and quantum meruit are likewise time-barred.

Plaintiff contends in his opposition that he continued to represent Defendant until he was relieved as counsel on June 26, 2020.  Plaintiff did not allege this fact in his Complaint.  Accordingly, the demurrer to the Complaint is sustained with 15 days leave to amend. 

Defendant shall give notice of the ruling. 

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