Judge: Melvin D. Sandvig, Case: 21CHCV00111, Date: 2023-03-29 Tentative Ruling

Case Number: 21CHCV00111    Hearing Date: March 29, 2023    Dept: F47

Dept. F47

Date: 3/29/23

Case #21CHCV00111

 

MOTION FOR JUDGMENT ON THE PLEADINGS

 

Motion filed on 3/3/23.

 

MOVING PARTY: Defendants Arminak Solutions dba KBL Cosmetics and Apackaging Group, LLC

RESPONDING PARTY: Plaintiff Vav Plastics, Inc.

NOTICE: ok

 

RELIEF REQUESTED: An order granting judgment on the pleadings in favor of Defendants on Plaintiff’s complaint. 

 

RULING: The motion is denied.    

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiff Vav Plastics, Inc.’s (Plaintiff) claim that Defendants Arminak Solutions dba KBL Cosmetics (Arminak) and Apackaging Group,  LLC (Apackaging) (collectively, Defendants) failed to pay for certain goods.  As a result, on 2/17/21, Plaintiff filed this action against Defendants for breach of oral contract (1st – 3rd causes of action) and common counts (4th – 7th causes of action).  On 6/4/21, Defendants filed an answer to the complaint.  On that same date Arminak filed a cross-complaint against Plaintiff for: (1) Breach of Contract, (2) Breach of the Covenant of Good Faith and Fair Dealing, (3) Declaratory Relief, (4) Breach of Express Warranty, (5) Breach of Implied Warranty of Merchantability, (6) Breach of Implied Warranty of Fitness for a Particular Purpose and (7) Negligent Interference With Prospective Economic Relations.  In response to Plaintiff’s demurrer to the cross-complaint, on 8/2/21, Arminak filed a First Amended Cross-Complaint alleging the same causes of action as the original cross-complaint.  On 8/26/21, Plaintiff answered the First Amended Cross-Complaint.   

 

On 10/13/22, Plaintiff filed and served an application seeking a right to attach order and writ of attachment with $392,506.63 as the amount to be secured by the attachment against Arminak.  Arminak opposed the application.  On 1/10/23, the application was denied. 

 

After meet and confer efforts failed to resolve the issues presented by this motion, on 3/3/23, Defendants filed and served the instant motion for judgment on the pleadings as to all causes of action in the complaint.  Plaintiff has opposed the motion and Defendants have filed a reply to the opposition.

 

ANALYSIS

 

Plaintiff’s Request for Judicial Notice is granted.

 

A motion for judgment on the pleadings is governed by the same rules as a general demurrer.  County of Orange (2011) 192 CA4th 21, 32.  Properly pleaded facts, but not legal conclusions, are taken as true when ruling on such a motion except when they are contradicted by judicially noticed facts or facts contained in exhibits to the pleading.  Holland (2001) 86 CA4th 1443, 1447.  The sole issue in ruling on a motion for judgment on the pleadings is whether the facts alleged state a valid cause of action, not whether they are true.  See Del E. Webb Corp. (1981) 123 CA3d 593, 604.  Further, allegations in a pleading are to be liberally construed with a view to substantial justice between the parties.  CCP 452.

 

The elements of a breach of contract claim are: (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach and (4) resulting damages.  Troyk (2009) 171 CA4th 1305 1352.

 

Defendants’ assertion that the breach of contract claims fail because Plaintiff has judicially admitted to not performing is based on an isolated allegation in the complaint wherein Plaintiff alleges that it “delivered most of the product ordered.”  (Complaint ¶6).  When the allegations in the complaint are read as a whole, it is sufficiently clear that Plaintiff is alleging that its failure to deliver all of the product ordered was excused by Arminak’s refusal of delivery and instruction to Plaintiff to cease production.  (See Complaint ¶6).

 

Defendants’ assertion that the breach of contract claims fail because they do not comply with the statute of frauds is based on Commercial Code 2201(1).

 

Commercial Code 2201 provides, in relevant part:

 

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in the writing.

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subdivision (1) against the party unless written notice of objection to its contents is given within 10 days after it is received.

(3) A contract which does not satisfy the requirements of subdivision (1) but which is valid in other respects is enforceable:

(a) If the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement;

(b) If the party against whom enforcement is sought admits in his or her pleading, testimony, or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or

(c) With respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2606).”

 

The allegations in the complaint and Arminak’s First Amended Cross-Complaint are sufficient, minimally, to raise a triable issue of material fact as to whether the contracts alleged comply with Commercial Code 2201(1), (2) or (3).  Plaintiff has alleged that the oral contract(s) is/are supported by 4 purchase orders (i.e., writings) for bottles to be specifically manufactured for Arminak.  (Complaint ¶6).  In its cross-claims, Arminak has also acknowledged the existence of agreements which were partly written and partly oral regarding the production of bottles by Plaintiff for Arminak to purchase.  (FAXC ¶¶5, 7, 9, 31, 32, 38, 44).  Similarly, the allegations in the complaint are also sufficient to support breach of contract claims against Apackaging regarding payment for a mold and pallets and a machine.  (See Complaint ¶¶7, 8, p.3:27-28, ¶¶14-20).  Whether or not Plaintiff will ultimately be able to prove its claims or Defendants will be able to establish its defenses, including the statute of fraud defense, cannot be determined on the instant motion.

 

A common count is sufficiently pled where it is based on a contract and defendant’s obligation pursuant to the contract to pay the plaintiff money.  Weitzenkorn (1953) 40 C2d 778, 793; Kawasho International, U.S.A. Inc. (1983) 152 CA3d 785, 793.  “It has long been settled the allegation of claims using common counts is good against special or general demurrers.  The only essential allegations of a common count are (1) a statement of indebtedness in a certain sum, (2) consideration, i.e., goods sold, work done, etc., and (3) nonpayment.”  Farmers Insurance Exchange (1997) 53 CA4th 445, 460.  As noted above, the complaint alleges sufficient facts to state the breach of contract claims.  As such, the common counts based on the same allegations are also sufficient as against this motion which is akin to a general demurrer.