Judge: Mark C. Kim, Case: 21LBCV00617, Date: 2022-08-16 Tentative Ruling
Case Number: 21LBCV00617 Hearing Date: August 16, 2022 Dept: S27
1. Background
Facts
Plaintiff, Liberty Safe and
Security Products, Inc. filed this action against Defendant, Envelope Group,
LLC for breach of contract, open book account, account stated, and money paid
out and lent out. Plaintiff filed the
complaint on 11/22/21. Plaintiff filed
proof of service on Defendant on 2/01/22.
Defendant filed a declaration in support of automatic extension of time
to file demurrer on 2/04/22.
2. Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support the
cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot reasonably
respond. CCP § 430.10(f).
However, in construing the
allegations, the court is to give effect to specific factual allegations that
may modify or limit inconsistent general or conclusory allegations. Financial
Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for relief.
Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (CCP §430.41(a)(3).)
The Court was originally scheduled
to hear this demurrer on 7/05/22. In its
tentative ruling, the Court expressed concerns about Defendant’s attempt to
meet and confer, as well as Defendant’s service of the demurrer papers. The Court continued the hearing on the demurrer
to require Defendant to address these concerns.
Defendant, on 8/03/22, filed an
attorney declaration making clear that he has communicated with Plaintiff’s
attorney, and Plaintiff’s attorney has indicated an inability to respond to the
demurrer or the meet and confer attempt due to lack of communication with
Plaintiff. The Court will therefore hear
demurrer on its merits at this time.
Defendant demurs to the complaint, contending
the first, third, and fourth causes of action are barred by the statute of
limitations, the first, third, and fourth causes of action fail to state
whether the contract upon which they are based is written, oral, or implied in
conduct, and the second cause of action is based on express contract, which
cannot form the basis of a claim for open book account as a matter of law.
As to the first, third, and fourth
causes of action, Defendant correctly notes that Plaintiff fails to allege whether
the contract upon which the entire action is based is written, oral, or implied
in conduct, which is required per CCP §430.10(g). The demurrer on this ground is
sustained. Because the defect is
curable, leave to amend is granted.
Defendant notes that the complaint
alleges breaches between 2017 and 2019, but without specific dates. The complaint was filed on 11/22/21. If the contract was oral, then any breaches
prior to 11/22/19 are barred by the statute of limitations. If it is written, any breaches prior to
11/22/17 are barred by the statute of limitations. Plaintiff must clarify the nature of the
contract and the dates of the breaches by way of an amended complaint.
Defendant also correctly notes that
the complaint lacks material facts about the parties’ contractual relationship,
pleading only that “multiple contracts” were entered into over a period of
years. Plaintiff must clarify the terms
of the contracts by way of an amended complaint.
Finally, as to the second cause of
action, Defendant cites H. Russell Taylor’s Fire Prevention Serv., Inc. v. Coca
Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 728 to support its position that a
cause of action for open book account cannot be based on an express
contract. The demurrer to the second cause
of action is sustained on this ground. If
Plaintiff amends, Plaintiff must be prepared to oppose any subsequent demurrer
with contrary authority.
The demurrer is sustained in its
entirety. Plaintiff must file an amended
complaint, in compliance with the above analysis, within twenty days. Defendant must file a responsive pleading
within the statutory time thereafter. If
Defendant challenges any amended pleading, Plaintiff is advised that it risks
an order sustaining the demurrer without leave to amend if it fails to oppose
the demurrer a second time.
Defendant is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the
party’s email must include the case number and must identify the party
submitting on the tentative. If the parties
do not submit on the tentative, they should arrange to appear remotely.