Judge: Mark C. Kim, Case: 21LBCV00660, Date: 2022-08-02 Tentative Ruling
Case Number: 21LBCV00660 Hearing Date: August 2, 2022 Dept: S27
Plaintiff, Cindy Jelenick filed
this action against Defendant, Antoinette Stipicevich on 12/17/21. Plaintiff filed her complaint in pro
per. Plaintiff’s judicial council form
complaint includes one cause of action for breach of contract. Plaintiff alleges she and Defendant were
friendly acquaintances, and Defendant expressed interest in traveling together. Plaintiff alleges Defendant possessed an “interest
card” for ILWU Local 63B, and Plaintiff was interested in obtaining the
card. Plaintiff asked Defendant for the
card, and the parties agreed that Plaintiff would buy Defendant a business
class ticket to fly from Croatia to LA and Defendant would give Plaintiff the
card in return. Plaintiff purchased the
ticket using her frequent flyer miles.
Plaintiff alleges Defendant spoke
with the union president on 9/02/14 to change the designee on the card. The president advised that the card would not
be called for approximately five years, and advised Defendant not to change the
name until the card was closer to being called, as the name could only be
changed once. Plaintiff and Defendant
agreed to wait to have the name changed.
On 12/21/17, Plaintiff and Defendant had dinner with the union
president, who advised it would be several more years before the card was
called; at the time, Defendant signed a napkin agreeing to change the
designation when the card was due to be called.
On 5/19/21, Plaintiff learned that cards
were being called. Plaintiff contacted
Defendant, but Defendant refused to change the name on the card. Plaintiff has reached out to Defendant
repeatedly, but Defendant has lied about the card number and has recently told
Plaintiff that the card is “not available.”
On 12/05/21, Plaintiff reached out to the union president, who advised
the name had not been changed, but could still be changed.
On 3/02/22, Plaintiff filed a substitution
of attorney, pursuant to which she became represented by an attorney. On 5/20/22, Plaintiff filed a subsequent
substitution of attorney, pursuant to which she again began representing
herself.
a. 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).)
b. Meet
and Confer
Defense Counsel’s declaration satisfies
the meet and confer requirement; Plaintiff did not respond to attempts to meet
and confer.
c. Statute
of Limitations
Defendant argues the complaint
shows, on its face, that it is barred by the statute of limitations.
i.
Law Governing SOL in Breach of Oral Contract
Pursuant to CCP §339(1), an action
for breach of oral contract must be filed within two years after accrual. A cause of action is complete with all of its
elements when, in addition to alleged wrongdoing or breach, the plaintiff has
suffered actual and appreciable harm. See
Davies v. Krasna (1975) 14 Cal.3d 502, 513.
ii.
Analysis
Defendant argues Plaintiff learned,
both in 2014 and again in 2017, that her name would not be placed on the card. Defendant also argues she never promised Plaintiff
employment, and had no power to do so.
A close reading of the complaint
shows that Plaintiff did NOT learn that she would not be placed on the card in
2014 or 2017. On the contrary, she
learned that the parties had been advised, by the union president, to wait to
place the name on the card until the time the card was due to be called. Plaintiff clearly alleges this did not happen
until 2021, and Defendant, for the first time in 2021, began stating that she
would not comply with her promise. Thus,
the cause of action accrued in 2021, both because this is the first time
Defendant ever stated an intention to breach the contract, and also because Plaintiff
did not suffer harm until 2021. There was
no harm in failing to place her name in 2014 or 2017, because the card would
not be called for many years at that point anyway.
Plaintiff does not allege Defendant
breached the parties’ contract by refusing to give Plaintiff employment;
Plaintiff only alleges Defendant breached the contract by refusing to provide her
a card. Defendant is free to challenge
Plaintiff’s claimed damages by way of affirmative defenses and/or at trial, but
she failed to show that the cause of action is inadequately pled.
Defendant’s demurrer is
overruled. Defendant is ordered to file
an answer within ten days.
The parties are reminded that there
is a CMC on calendar contemporaneously with the hearing on the demurrer. The Court asks the parties to make arrangements
to appear remotely at the hearing on the demurrer and the CMC.