Judge: John J. Kralik, Case: 22BBCV00729, Date: 2023-04-07 Tentative Ruling

Case Number: 22BBCV00729    Hearing Date: April 7, 2023    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

VAHIK ZADORIAN,

 

                   Plaintiff,

         v.

 

A & J AUTO PARTS, INC., et al.,

 

                   Defendants.

 

  Case No.: 22BBCV00729

 

  Hearing Date:  April 7, 2023

 

 [TENTATIVE] ORDER RE:

DEMURRER

 

BACKGROUND

A.   Allegations

Plaintiff Vahik Zadorian (“Plaintiff”) alleges that he entered into an oral contract with Defendants A & J Auto Parts, Inc. (“A&J”) and Jorj Botmalloo (“Botmalloo”) sometime in 2018 where all parties agreed to purchase damaged/totaled vehicles from Copart, repair the vehicles, sell them to third parties, and split the profits.  Plaintiff alleges that each party was to put up half of the money required to purchase the vehicles.  Plaintiff alleges that he performed all the terms and conditions under the contract, but that Defendants breached the contract by failing to pay Plaintiff the balance due in the amount of $40,000. 

         The Complaint, filed October 10, 2022, alleges causes of action for: (1) breach of contract; and (2) common counts.   

B.    Demurrer on Calendar

On January 30, 2023, Defendants filed a demurrer to the initial complaint.

The Court is not in receipt of an opposition brief.

DISCUSSION

         Defendants demur to the 1st and 2nd causes of action alleged in the initial complaint.

A.   1st cause of action for breach of contract

“The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.”  (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.)  “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.”  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  The applicable statute of limitations for a breach of oral contract is two years, whereas the statute of limitations for a breach of written contract is four years.  (Code Civ. Proc., §§ 337(1), 339(1).)

Defendants demur to the 1st cause of action arguing that the 2-year statute of limitations has elapsed.  Defendants argue that Plaintiff alleges that the oral contract was formed sometime in 2018, but he filed his complaint on October 10, 2022. 

While the contract was formed sometime in 2018, this does not necessarily mean that the breach occurred sometime in 2018.  The parties may have been performing under the contract after its formation.  In the prayer for damages, Plaintiff seeks $40,000, plus interest at the rate of 10 “per annum from October 2018.”  (Compl. at Prayer, ¶¶1-2.)  This may indicate that there are some allegations upon which Plaintiff seeks recovery over 2 years from the date of filing the complaint, but this does not necessarily mean that he does not have breaches of the contract within the statute of limitations period.

“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 merely that the action may be barred.”  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.)  At this time, the defect regarding the statute of limitations is not clearly and affirmatively apparent on the face of the complaint.  As such, the demurrer to the 1st cause of action based on the statute of limitations is overruled.  

B.    2nd cause of action for common counts

“In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)  “The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’”  (Id.)

In the 2nd cause of action, Plaintiff alleges that Defendants became indebted to Plaintiff on an open book account for money due in the last 4 years.  (Compl., ¶13.)  Plaintiff alleges that Defendant became indebted to Plaintiff for labor, services, equipment, and/or materials rendered for which Defendants promised to pay Plaintiff the balance due of $40,000. (Id., ¶14.) 

Defendants argue that the 2nd cause of action fails to allege whether it is based on the breach of contract cause of action or whether it is based on a different contract.  However, a common counts cause of action only needs a statement of indebtedness, consideration, and nonpayment.  Although the details are admittedly sparse, Plaintiff has alleged each of these elements. 

Defendants also argue that the common counts claim is untimely for the same reasons as the breach of contract cause of action.  However, as discussed above, the defect regarding the statute of limitations is not clearly and affirmatively apparent on the face of the complaint.  As such, the demurrer on this basis will be overruled. 

         The demurrer to the 2nd cause of action is overruled.

CONCLUSION AND ORDER

         Defendants A & J Auto Parts, Inc. and Jorj Botmalloo’s demurrer to the initial complaint is overruled.  Defendants are ordered to answer the complaint within 10 days of this order.

         Defendants shall provide notice of this order.