Judge: Mark H. Epstein, Case: 23SMCV02150, Date: 2023-12-13 Tentative Ruling

Case Number: 23SMCV02150    Hearing Date: March 6, 2024    Dept: I

The demurrer is OVERRULED.  The motion to strike is DENIED.

Plaintiff Corby and Corby, an accountancy corporation (“C&C”) filed this common counts action against defendant Barry Maiten (“Maiten”).  Maiten later filed a cross-complaint against C&C.  According to the operative First Amended Cross-Complaint (“FAXC”), Maiten hired C&C in 2000 to provide accounting and bookkeeping services.  (FAXC, ¶4.)  C&C had their employee, David Hahn, work at Maiten’s office.  (Id. at ¶5.)  Maiten asserts a billing dispute arose because C&C had been overbilling for more than four years.  (Id. at ¶6.)  Around the same time, Hahn’s laptop became infected with viruses and an IT consultant told Maiten that Hahn was downloading programs for personal use.  (Id. at ¶7.)  Maiten contends he asked Hahn to stop but Hahn did not.  (Ibid.)  C&C allegedly hired Hahn but before he left—his last day was March 17, 2020—Hahn deleted the contents of the laptop entirely, including all the work he performed for Maiten during the last 20 years, along with bookkeeping records.  (Id. at ¶8.)

C&C demurs to the FAXC on the ground of failure to state sufficient facts, and further demurs to the second cause of action on the ground of uncertainty.  (See Code Civ. Proc., § 430.10, subds. (e), (f).)  “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Fin. Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty does not address whether the pleading fails to “incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.”  (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.)  Rather, a demurrer is intended to address whether a pleading is so incomprehensible that a defendant cannot understand the allegations actually made.  (Id. at p. 146.)  The only arguments asserted by C&C pertain to the ground of failure to state sufficient facts.  Thus, the demurrer for uncertainty is unsubstantiated and OVERRULED.

C&C asserts that Maiten has not properly alleged a claim for breach of fiduciary duty and goes through each alleged breach, arguing it is insufficient.  The court does not need to spend long on this argument.  The claim for breach of fiduciary duty reads as a claim for professional negligence, and these acts implicate negligence on the part of C&C in its work, via its employees.  “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.”  (Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

The court notes that C&C does not raise the statute of limitations in its moving papers.  (MPA, p. 3:10-11 [“Setting aside dripping statute of limitations issues, . . .”].)  Maiten’s argument on that point is therefore disregarded, as is the new argument in reply on that basis.  The demurrer is OVERRULED.

The motion to strike is DENIED as unsubstantiated. There is no memorandum of points and authorities filed with the court, and the court cannot address the sufficiency of the arguments in opposition and reply without that filing.

Cross-defendant has 30 days to answer.