Judge: Mark H. Epstein, Case: 22SMCV01060, Date: 2023-05-02 Tentative Ruling

Case Number: 22SMCV01060    Hearing Date: May 2, 2023    Dept: R

The demurrer is OVERRULED. 

The demurrer to the original complaint was sustained with leave to amend because essentially it was no more than an unsigned, handwritten invoice that plaintiff signed.  The FAC does much better.  It alleges that defendant was a loyal customer of plaintiff’s clothing.  Defendant had a practice of placing orders with plaintiff and plaintiff would send an unsigned, handwritten invoice to defendant and then send the good.  That relationship continued between 2017 and 2018.  According to plaintiff, defendant ordered more clothing in July 2018, but the invoices were never paid.  Plaintiff sent defendant an email on August 28, 2018 that reconciled the account, but it was still unpaid.  According to plaintiff, defendant has responded to the demand for payment but never objected to the July 11, invoice of $250,536.

The Bahadori declaration is STRICKEN.  Such evidence is inappropriate for purposes of demurrer. 

One major issue is defendant’s claim that the complaint is improper because it discloses confidential settlement communications in violation of Evidence Code section 1152.  Defendant misreads the Evidence Code.  Section 1152 bars evidence of a settlement communication at trial to prove the validity of the claim.  The complaint is not a trial.

Defendant also claims that the second, third, fourth, and fifth causes of action were added without leave.  But that is not quite fair.  The prior demurrer was sustained on the ground of uncertainty; the court could not tell what was being alleged.  Breaking the complaint into five causes of action is consistent with bringing certainty to an uncertain complaint.  Even were that not the case, no purpose would be served by sustaining the demurrer or striking those causes of action; they would only be added later by way of motion. 

Defendant also contends that the third through fifth causes of action are attempts to turn a time-barred cause of action into a timely common count.  The court disagrees.  The facts in the complaint are not contradictory.  If this is no more than a time-barred case, then the proper test is summary judgment.  At the pleading stage, the court cannot so hold.  Nor can the court strike any of the causes of action as sham pleadings; none are so inconsistent as to be barred by that doctrine.

Defendant has 20 days to answer.