Judge: Lee W. Tsao, Case: 22NWCV01049, Date: 2023-04-18 Tentative Ruling

Case Number: 22NWCV01049    Hearing Date: April 18, 2023    Dept: C

TAHIR v. H.P. Palomino, Inc., et al.

CASE NO.:  22NWCV01049

HEARING: 4/18/23 @ 10:30 AM

#3

TENTATIVE RULING

I.             Defendant Shah’s demurrer to Abu Tahir’s verified complaint is OVERRULED.

II.            Defendant Hassan’s demurrer to Abu Tahir’s verified complaint is OVERRULED.

III.          Defendant H.P. Palomino, Inc.’s demurrer to Abu Tahir’s verified complaint is OVERRULED.

Defendants are ordered to file and serve their Answers within 10 days.

Opposing Party to give NOTICE.

Defendants Shah, Hassan and H.P. Palomino, Inc. (“Palomino”) demurs to the 1^st – 2^nd causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain.

Complaint

Plaintiff Abu Tahir alleges that Defendants Shah, Hassan, and Palomino owe Plaintiff a deferred salary in the sum of $155,250.00.  (Complaint, ¶ 14.)  Based thereon, the Complaint asserts causes of action for:

1.    Open Book Account

2.    Account Stated

UNCERTAINTY

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  A demurrer for uncertainty will be sustained only where the complaint is so bad that a defendant cannot reasonably respond. (Ibid.)

As demonstrated by Defendants’ demurrers, Defendants are on notice of the claims pled.  The court finds that the Complaint is not so uncertain that Defendants cannot reasonably respond.  Accordingly, the demurrers based on uncertainty are OVERRULED.

1^st – 2^nd CAUSES OF ACTION

OPEN BOOK ACCOUNT and ACCOUNT STATED:

“In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. 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.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

“A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.)

Plaintiff has alleged an indebtedness owed by Defendants in the sum of $155,250.00.  (Complaint, ¶ 14.)  Defendants’ “books” and “account” may be understood as the company’s ledgers.  At this pleading stage, the court finds the claims are adequately pled.

Further, there is no misjoinder of Defendants Shah and Hassan because individual Defendants may be personally liable for unpaid wages.  (Seviour-lloff v. La Paile (2022) 80 Cal. App.5^th 427.)

Accordingly, the demurrers are OVERRULED.  Defendants are ordered to file and serve their Answers within 10 days.