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

  1. Legal Standard on 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).)


  1. 7/05/22 Hearing on Demurrer

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. 


  1. Analysis

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. 


  1. Conclusion

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.orgIf 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.