Judge: John J. Kralik, Case: 22BBCV00918, Date: 2023-04-28 Tentative Ruling
Case Number: 22BBCV00918 Hearing Date: April 28, 2023 Dept: NCB
North
Central District
|
protective
insurance company, Plaintiff, v. cv management
services, inc., Defendant. |
Case
No.: 22BBCV00918 Hearing Date: April 28, 2023 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A. Allegations
Plaintiff Protective
Insurance Company (“Plaintiff”) alleges Defendant CV Management Services, Inc.
(“Defendant”) became indebted to Plaintiff within the last 4 years on an open
book account for money due. Plaintiff
alleges that the indebtedness was for work, labor, services, and materials
rendered at the special instance and request of Defendant and for which
Defendant promised to pay Plaintiff in the sum of $116,003.64.
The
first amended complaint (“FAC”), filed on January 11, 2023, alleges a cause of
action for common counts.
B. Demurrer
on Calendar
On
February 15, 2023, Defendant filed a demurrer to the FAC.
On April 12,
2023, Plaintiff filed an opposition brief.
On April 18,
2023, Defendant filed a reply brief.
DISCUSSION
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.)
Defendant demurs to the sole cause of
action in the FAC on the grounds that it does not state sufficient facts to constitute
a cause of action against Defendant and it is uncertain. Plaintiff argues in opposition that it
correctly followed the requirements of the Judicial Council form complaint by
alleging the necessary elements of a common count cause of action.
The
Court has reviewed the common counts attachment. It alleges that Defendant became indebted to
Plaintiff in the amount of $116,003.64 for work, labor, services, and materials
within the last 4 years. While the pleading of these common counts
seems to violate general principles of pleading that were initiated with the
Code of Civil Procedure, such common counts are universally tolerated.
The averment of an indebtedness
not by stating the actual ultimate facts in each particular case, but by using
one of a series of generalized forms consisting in part of legal conclusions,
is directly opposed to a basic principle of code pleading. Nevertheless, when
the codes were adopted the familiarity of lawyers with the form, and its
simplicity and convenience, were sufficient to overcome this objection. And
today in nearly all code states and in the federal practice, the common counts
are permissible and widely used. In California, it is settled that they are
good against special as well as general demurrers.
(4 B. Witkin, California
Procedure § 561(2) (6th ed. March 2023 Update).) Therefore, the Court is hesitant to sustain a
demurrer to the common counts cause of action unless it is directed to a
material problem with the case. Of
course, Plaintiff’s proof may not ultimately be sufficient to sustain such
claims, but prolonging the pleading of a simple debt is counterproductive. On this basis, the Court overrules the
demurrers to the sole cause of action in the FAC.
CONCLUSION AND ORDER
The demurrer to the sole cause of
action for common counts in the first amended complaint is overruled. Defendant is directed to answer within 10
days of this order.
Defendant shall provide notice of
this order.