Judge Michael E. Whitaker, Case Number: 24SMCV05565, Date: 2025-03-24 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV05565, Date: 2025-03-24 Tentative Ruling

This case arises from a dispute concerning nonpayment for transportation services provided.

On November 13, 2024, Plaintiff Baxter, Bailey & Associates, Inc., an Assignee of Flame Trans Inc. (“Plaintiff”) brought suit against Defendants Dr. Seuss Experience (“DSE”); Kilburn Experiences LLC (“KEL”); Kilburn Live, LLC (“KLL”); and Kilburn Media, LLC (“KML” or “Defendant”) alleging five causes of action for (1) breach of contract; (2) open book account; (3) account stated; (4) quantum meruit; and (5) unjust enrichment.

Defendant KML now demurs to the Complaint on the grounds that it fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e). Plaintiff opposes[1] the demurrer and Defendant replies.

Code of Civil Procedure section 1005, subdivision (b) provides, “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” The court has discretion whether to consider late-filed papers. (California Rules of Court, rule 3.1300(d).)

The hearing in this matter is set for March 24, 2025, making the Opposition papers due March 11 and the Reply due on March 17. The Opposition was filed a day late at 4:18 p.m. on March 12, and the Reply was timely filed on March 17. However, in light of the fact that Defendant was still able to timely file a fulsome Reply on the merits, the Court finds no prejudice.

Therefore, the Court exercises its discretion and considers the late-filed Opposition.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

Defendant demurs to all causes of action on the grounds that the complaint fails to allege that Defendant was a party to any contract with Plaintiff, did not provide any services to Plaintiff, and received no benefit from Plaintiff. In support, Defendant cites Exhibit A to the Complaint and points out that all the invoices in question are directed at KLL, not KML.

11. Based upon information and belief, it is thereon alleged that at all times mentioned herein, during the year of 2023, Plaintiff's Assignor(s) was a licensed motor carrier. It is further alleged on information and belief and thereon alleged that the motor carrier Assignor(s) had licenses with the appropriate governmental authorities available for public viewing.

12. At all times mentioned herein, during the year of 2023, Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, were desirous of transporting certain goods and wares for the benefit of their businesses from various locations and be delivered to destinations as designated on the Bills Of Lading and instructed by Defendants, including DSE, KLL, KEL, and KML. Further, alleged upon information and belief, the terms of payment of the shipments as to being either "PREPAID" or "COLLECT" was subject to the Bills of Lading; the consequence of this designation of "PREPAID" was to place on notice to all parties that the designated SHIPPER/CONSIGNOR on the Bill(s) of Lading was the guarantor of payment of freight charges and had primary responsibility of the payment of the freight charges that belonged to Defendant Shipper/Consignor and Does 1 to 100. Secondary responsibility for payment of the subject transportation charges would be the designated Defendant Consignee as the Receiver/Consignee of the goods and wares from Defendant Shipper/Consignor, as the accepting party of said goods/wares. In the shipments that were designated "COLLECT", then the Primary obligor for payment of the transportation charges belonged to the designated Defendant Receiver/Consignee set forth on the Bills of Lading.

13. At all times mentioned herein, KLL, KEL and KML, with full authority, delegation, and knowledge by and of Defendant DSE, was engaged by Defendants DSE to act as a transportation agent to locate and hire motor carriers to pick up goods and wares of the Defendant Shippers/Consignors from their origin location(s) to be delivered to designated locations, as instructed by Defendant DSE.

14. In or about February 28, 2023, Defendant KLL, KEL and KML acting as a transportation agent for its disclosed principal(s) Defendant DSE, and DOES 1 to 100, and each of them, engaged Plaintiff's Assignor(s) as set forth in this complaint to provide the transportation services described in paragraphs 12 and 13 (two proceeding (sic) paragraph numbers) above and herein.

15. Further and except for those excused performances, Plaintiff's Assignor(s) had performed each and every obligation and covenant incumbent upon it by virtue of said written Bills of Lading and/or transportation agreements as specified above and below in this complaint and as agreed. Said delivery took place during and on or about February 28, 2023 and subsequently copies of said Bills of Lading and other relevant transportation agreements and documents are attached to Exhibit 'A".

16. Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, materially breached the herein written transportation agreement(s) by refusing and continues to refuse to pay the unpaid freight charges/services to the herein motor carrier Assignor(s) and/or Plaintiff for the principal sum of $ 54,396.00. The payment of transportation charges by the shipper and/or consignee to a freight broker/agent or any third-party other than the motor carrier does not relieve the shipper's and/or consignee's obligation to pay the motor carrier who performed the transportation services. The shipper, consignee, and broker are jointly and severally liable for unpaid freight charges. Oak Harbor Lines Vs. Sears Roebuck & CO. (2008) 513 F.3rd 949. The consignee is further and independently liable for the unpaid freight charges, due to accepting the good and wares from the motor carrier for which the consignee enjoyed the economic benefit therefrom. Id. 49 U.S.C. 13706. 5

17. Plaintiff's counsel had placed demand upon Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, by virtue of this complaint and service thereof, for the outstanding sum of unpaid principal and accrued interest pursuant to the agreed written transportation agreements herein, but said Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, have failed to pay Plaintiff' Assignor(s) or Plaintiff the outstanding principal sum of 4 54, 396.00 and accrued interest from February 28, 2023. Thus, the Plaintiff's Assignor(s) and/or Plaintiff have been damaged therefore in the said amount.

19. That Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, within the last four years and on or about February 28, 2023 became indebted to Plaintiff's Assignor(s) herein on an open book account for a balance due for transportation services requested on and for the behalf of Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, and rendered at the special instance and request of Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, and for which Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them, promised to pay the sum of $ 54,396.00. 3

20. Although demand for payment of said sum of has been made, by virtue of this complaint and service thereof, Defendants DSE, KLL, KEL, KML and each of them, have failed and refused to pay said sum, and the whole principal amount thereof is now due, and owing, and unpaid, together with interest at the rate of ten (10) percent per annum, from and after February 28, 2023.

22. That within the last four years prior to filing this complaint, created/formed subsequent to February 28, 2023, an ACCOUNT STATED was created/formed as a matter of law between Plaintiff's Assignor(s) and Defendants DSE, KLL, KEL, KML and DOES 1 to 100, and each of them. Defendants DSE, KLL, KEL, KML and DOES 1 to 100 became indebted to Plaintiff's Assignor(s) in the sum of $ 52,396.00 for an unpaid balance due for transportation services rendered on the behalf and benefit of Defendants herein and DOES 1 TO 100, and each of them. All of which the Defendants and DOES 1 TO 100, and each of them, have a legal obligation to pay Plaintiff's Assignor(s) the sum of $ 54,396.00 plus accrued interest at the rate of ten (10) percent per annum from February 28, 2023.

24. That Defendants DSE, KLL, KEL, KML and DOES 1 TO 100, and each of them, within the last four years and on or about February 28, 2023, became indebted to Plaintiff' Assignor(s) in the sum of $ 54,396.00 for an unpaid balance due for transportation services rendered on the behalf and benefit of Defendants DSE, KLL, KEL, KML and DOES 1 TO 100, and each of them, at the special instance and request of said Defendants and DOES 1 TO 100, and each of them; and for which aforementioned Defendants and DOES 1 TO 100, and each of them, promised to pay Plaintiff's Assignor(s), and the reasonable value of the same is the sum of $ 54,396.00 plus accrued interest at the rate of ten (10) percent per annum from February 28, 2023.

26. As the result of unfair and tortuous acts of Defendants DSE, KLL, KEL, KLL and DOES 1 to 100, and each of them, as set forth in this complaint, Plaintiff's motor carrier Assignor(s) have been deprived of its ability to optimize the receipt of payment of the subject matter transportation services provided to Defendants DSE, KLL, KEL, K)4L and DOES 1 to 100, and each of them, pursuant to the aforementioned written Bill(s) of Lading-transportation agreements and in accordance to the specific requests and demands by the Defendants and its employees, agents, and representatives.

27. Based upon information and belief, it is thereon alleged that Defendants DSE, KLL, KEL, KML and each of them, have been unjustly enriched by transportation services provided to Defendants, and each of them, without payment to neither Plaintiff's Assignor(s) nor Plaintiff. Hence, Plaintiff's Assignor(s) and Plaintiff have unjustly suffered losses and damages, due to the unlawful and tortuous acts of the Defendants and each of them.

28. Plaintiff seeks restitution from Defendants DSE, KLL, KEL, KML and each of them, to the extent that they have been unjustly benefited(enriched, all funds due, owing, and belonging to Plaintiff's Assignor(s) and currently Plaintiff as described in this complaint.

29. Plaintiff have been damaged resulting in compensatory damages in a sum of $ 54,396.00 or such other amount subject to proof at time of trial.

(Complaint ¶¶ 11-29.) Thus, Plaintiff’s allegations are asserted against KML.

Yet KML argues that the Court need not consider the allegations that are contrary to the exhibits. But the Court disagrees that the attached exhibits which name some, but not all of the Defendants are necessarily contrary. Whether KML is actually a party to the underlying agreement or benefited from the contract are factual questions to be resolved at later stages of the litigation.

For the reasons stated, the Court overrules KML’s Demurrer to the Complaint in its entirety.

KML shall file and serve an Answer to the Complaint on or before April 11, 2025. KML shall provide notice of the Court’s ruling and file a proof of service regarding the same.

Further, on the Court’s own motion and to facilitate judicial economy, the Court will advance the Case Management from March 25, 2025 to March 24, 2025 in conjunction with the hearing on KML’s Demurrer.

[1] The Court does not consider the evidence offered in support of the Opposition, as such evidence goes beyond the four corners of the complaint and is inappropriate to consider on a demurrer.

DEPARTMENT	207
HEARING DATE	March 24, 2025
CASE NUMBER	24SMCV05565
MOTION	Demurrer to Complaint
MOVING PARTY	Defendant Kilburn Media, LLC
OPPOSING PARTY	Plaintiff Baxter, Bailey & Associates, Inc., an Assignee of Flame Trans Inc.