Judge: John J. Kralik, Case: 21BBCV00914, Date: 2022-08-05 Tentative Ruling

Case Number: 21BBCV00914    Hearing Date: August 5, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Anglin Flewelling & Rasmussen, LLP (“Plaintiff”) alleges that on July 1, 2019, Defendant Patricia Leupold (“Defendant” or “Leupold”) hired Plaintiff to represent her as a creditor in a Chapter 13 bankruptcy filed by debtor Joe Kearney.  Plaintiff alleges this representation was not memorialized by a written contract, but the parties entered into an oral contract by which Defendant agreed to pay Plaintiff for its services at an hourly rate.  Plaintiff alleges that Defendant only made 1 payment of $2,877.50 for Plaintiff’s services though Plaintiff incurred $76,195 in fees.

The complaint, filed October 19, 2021, alleges causes of action for: (2) breach of oral contract; (2) quantum meruit; and (3) open book account.

On December 6, 2021, Defendant filed an answer to the complaint, alleging 6 affirmative defenses.

B.     Motion on Calendar

On July 12, 2022, Plaintiff filed a motion for judgment on the pleadings to Defendant’s 6^th affirmative defense in the answer. 

On July 25, 2022, Defendant filed an opposition to the motion.  On July 26, 2022, Defendant filed objections to the request for judicial notice. 

On July 29, 2022, Plaintiff filed a reply brief.

A jury trial is set for September 26, 2022.

REQUEST FOR JUDICIAL NOTICE

            Plaintiff requests judicial notice of: (A) the docket in U.S. Bankruptcy Court, Central District of California Case No. 1:19-bk-11422-MT (“the Joe Kearny Bankruptcy Case”) from June 6, 2019 to June 1, 2020; (B) Leupold’s motion for partial summary judgment with respect to debtors motion for disallowing claim of Leupold filed in the Joe Kearny Bankruptcy Case on January 22, 2020; (C) the amended order granting Leupold’s motion on March 17, 2020 in the Joe Kearny Bankruptcy Case on March 17, 2020; and (D) the substitution of attorney dated June 1, 2020 in the Joe Kearny Bankruptcy Case.  The request is granted.  (Evid. Code, § 452(d).) 

            Defendant objects to the request for judicial notice arguing that the documents will prejudice this Court against Defendant and the documents are not relevant to the motion for judgment on the pleadings.  The objections to each of the documents are overruled.

DISCUSSION

            Plaintiff moves for judgment on the pleadings as to Defendant’s 6^th affirmative defense in the answer. 

            The 6^th affirmative defense alleges: “As a seventh [sic] and separate affirmative defense to the first and second causes of action, this Answering Defendant claims that Plaintiff’s claims are barred by the statute of limitations contained in Code of Civil Procedure section 339(1).”  (Answer, ¶7.) 

             CCP § 339(1) provides for a 2-year statute of limitations period for actions upon a contract not founded in a written instrument.  “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 (2017) 8 Cal.App.5th 467, 490 [calculating the statute of limitations period following counsel’s termination of her limited scope of the defendants].) 

            According to the allegations of the complaint, Plaintiff represented Defendant Leupold in the Joe Kearny Bankruptcy Case and sent billing statements for services performed in July 2019 to May 2020.  (Compl., ¶13.)  On June 1, 2020, a new attorney substituted into the Joe Kearny Bankruptcy Case as counsel for Leupold.  (Pl.’s RJN, Ex. D.)  Plaintiff alleges that it sent Defendant its last billing statement on June 25, 2020.  (Compl., ¶14.)  Plaintiff then filed this action on October 19, 2021, which is less than 2 years after Plaintiff ceased representing Defendant in the Joe Kearny Bankruptcy Case.

            In opposition, Defendant argues that her affirmative defense should survive because it can be easily resolved at trial.  However, this is not the standard on a motion for judgment on the pleadings.  Defendant also argues that Plaintiff has not addressed the complaint or shown that its complaint states sufficient facts.  CCP § 438(c)(1) states that on a motion for judgment on the pleadings filed by the plaintiff, the plaintiff must show “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.”  As discussed above, Plaintiff has shown that the complaint and the judicially noticeable documents show that Plaintiff represented Defendant in the Joe Kearney Bankruptcy Case until May 2020, sent its last billing invoice in June 2020, and filed this action in October 2021, which is within 2 years of Plaintiff’s last day of representation and the billing invoice.  Thus, Plaintiff has also shown that the 6^th affirmative defense based on the statute of limitations lacks sufficient facts to constitute a defense to the complaint. 

            The motion for judgment on the pleadings as to the 6^th affirmative defense in the answer is sustained.  As this is Defendant’s first attempt at the answer, the Court will allow leave to amend. 

CONCLUSION AND ORDER

Plaintiff Anglin Flewelling & Rasmussen, LLP’s motion for judgment on the pleadings as to the 6^th affirmative defense in Defendant Patricia Leupold’s answer is sustained.  In light of the impending trial date of September 26, 2022, the Court will give Defendant 10 days leave to amend the answer.

Plaintiff shall provide notice of this order.