Judge Mark E. Windham, Case Number: 22NWLC24344, Date: 2023-08-10 Tentative Ruling

Judge: Mark E. Windham, Case: 22NWLC24344, Date: 2023-08-10 Tentative Ruling

Case Number: 22NWLC24344 Hearing Date: August 10, 2023 Dept: 26

Klein, et al. v. Santana Cycles, Inc., et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Santana Cycles, Inc. dba Santana Adventures’ Demurrer to the Complaint is OVERRULED AS TO THE FIRST AND SECOND CAUSES OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE THIRD CAUSE OF ACTION. DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiffs Jon Klein and Laura Klein (“Plaintiffs’) filed this action against Defendant Santana Cycles, Inc. dba Santana Adventures (“Defendant”) on October 11, 2022. Defendant filed a Demurrer to the Complaint on March 21, 2023, which was set for hearing on May 9, 2023.

Following transfer of the action to the limited jurisdiction court, Defendant filed a reply on June 20, 2023. Plaintiffs filed an opposition on July 28, 2023, which was previously served on Defendant on May 8, 2023. (Opp., Exhs. 1-2.)

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Exh. 2.) This Complaint alleges causes of action for (1) open book account; (2) account stated; and (3) quantum meruit. The Complaint alleges that “within four (4) years past, Defendants, and each of them, became indebted to Plaintiff on an open book account for goods, wares, and merchandise sold and delivered to Defendants for which Defendants promised to pay Plaintiff. (Compl., ¶5.) Alternatively, an account was stated in writing between the parties for goods, wares, and merchandise sold and delivered to Defendant at its request. (Id. at ¶7.) Also alternatively, Defendant has been unjustly enriched by failing to pay for goods sold and delivered. (Id. at ¶11.) There is now due and owing the amount of $19,538.00. (Id. at ¶¶6, 9, 13.)

Defendant demurs to the Complaint for uncertainty and failure to allege sufficient facts. (Citing Code Civ. Pro., § 430.10, subd. (d), (e).) Demurrers for uncertainty (special demurrers) are not permitted in a court of limited jurisdiction, however, so the Court will not consider it. (Code Civ. Proc., § 94, subd. (c).) Plaintiffs also argue in opposition that common count causes of action are not subject to general demurrer:

A pleading which is sufficient as a common count is not generally subject to general demurrer or to special demurrer on the ground of uncertainty. In Pike v. Zadig (1915) 171 Cal. 273, 152 P. 923, the court ruled, ‘So far as the general demurrer is concerned, the complaint does allege that the defendants became indebted to the plaintiff for money had and received by them for the use and benefit of plaintiff in two given sums. This is a sufficient pleading under the old form known as a ‘common count.’ . . . . [T]he practice of pleading in this form has been too long established in this state to be now open to question. (Citations.) . . . If there be any objection to the common count, it is that the pleading states conclusions of law, instead of setting forth the facts upon which the plaintiff relies. The real ground of objection, therefore, is that the complaint does not state facts sufficient to constitute a cause of action. But, as we have seen, this objection is not maintainable.' (171 Cal. at pp. 276—277, 152 P. at pp. 924—925.)

(Moya v. Northrup (1970) 10 Cal.App.3d 276, 279 [citing Pike v. Zadig (1915) 171 Cal. 273, 276].) The demurrer in this action mirrors that in Pike: that the pleading merely states conclusions of law, instead of the facts upon which Plaintiffs rely. (Pike v. Zadig (1915) 171 Cal. 273, 276-277.) Accordingly, the causes of action for common counts are not subject to general demurrer on these grounds.

Defendant also demurs to the third cause of action as being barred by the two-year statute of limitations set forth at Code of Civil Procedure section 339. Defendant points to the alleged interest calculation, starting on September 10, 2020, as the implied date of breach of the parties’ agreement and that date from which the clock starts running on the statute of limitations. (See Compl., ¶13.) In opposition, Plaintiffs do not dispute that September 10, 2020 is the date of breach nor that this action, filed on October 11, 2022, is past the two-year statute of limitations. Nor do Plaintiffs make any argument as to how the Complaint might be amended to avoid the time bar, as is their burden. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Conclusion

Based on the foregoing, Defendant Santana Cycles, Inc. dba Santana Adventures’ Demurrer to the Complaint is OVERRULED AS TO THE FIRST AND SECOND CAUSES OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE THIRD CAUSE OF ACTION. DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.