Judge: Michael P. Linfield, Case: 22STCV35713, Date: 2023-05-15 Tentative Ruling
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Case Number: 22STCV35713 Hearing Date: May 15, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendants
Vivera Pharmaceuticals, Inc., Paul Edalat, and Olivia Karpinski
Resp. Party: Plaintiff Buchalter
Defendants’ Demurrer to the
Complaint is SUSTAINED in part.
The Demurrer is SUSTAINED
to the fourth, eighth, and twelfth causes of action, without leave to amend.
The Demurrer is OVERRULD to
the first, second, third, fifth, sixth, seventh, ninth, tenth, and eleventh
causes of action.
BACKGROUND:
On November 10, 2022,
Plaintiff Buchalter filed its Complaint against Defendants Vivera
Pharmaceuticals, Inc., Paul Edalat, and Olivia Karpinski on the following 12 causes
of action arising from the Parties’ contractual relationship:
1. Breach of Contract
2. Account Stated;
3. Open Book Account;
4. Reasonable Value
of Services;
5. Breach of Contract
6. Account Stated;
7. Open Book Account;
8. Reasonable Value
of Services;
9. Breach of Contract
10. Account Stated;
11. Open Book
Account;
12. Reasonable Value
of Service
On April 18, 2023,
Defendants Vivera Pharmaceuticals, Inc., Paul Edalat, and Olivia Karpinski
(“Defendants”) filed their Demurrer.
On May 2, 2023,
Plaintiff filed its Opposition.
On May 5, 2023,
Defendants filed their Reply.
ANALYSIS:
I.
Legal
Standard
A demurrer is a pleading used to test the
legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the
function of the demurrer to challenge the truthfulness of the complaint; and
for purpose of the ruling on the demurrer, all facts pleaded in the complaint
are assumed to be true, however improbable they may be. (Code Civ. Proc., §§
422.10, 589.)¿¿¿
¿¿¿
A demurrer can be used only to challenge defects
that appear on the face of the pleading under attack; or from matters outside
the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking
demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10
(grounds), section 430.30 (as to any matter on its face or from which judicial
notice may be taken), and section 430.50(a) (can be taken to the entire
complaint or any cause of action within).¿¿¿
¿¿¿
A demurrer may be brought under Code of Civil
Procedure section 430.10, subdivision (e) if insufficient facts are stated to
support the cause of action asserted. A demurrer for uncertainty (Code of Civil
Procedure section 430.10, subdivision (f)), is disfavored and will only be
sustained where the pleading is so bad that defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. (Khoury v.
Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the
pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)¿¿¿
II.
Discussion
Defendants demur to all 12 of
Plaintiff’s causes of action. However, the 12 causes of action are actually
four causes of action, each repeated thrice.
For clarity and ease of analysis,
the Court considers the causes of action by type instead of individually.
A. Breach
of Contract
1. Legal
Standard
To state a cause of action for breach of
contract, a plaintiff must be able to establish “(1) the existence of the
contract, (2) plaintiff’s performance or excuse for nonperformance, (3)
defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis
W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)¿
¿
If a breach of contract claim “is based on
alleged breach of a written contract, the terms must be set out verbatim in the
body of the complaint or a copy of the written agreement must be attached and
incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999)
74 Cal.App.4th 299, 307.)
“In an action based on a written contract, a
plaintiff may plead the legal effect of the contract rather than its precise
language.” (Constr. Protection Servs., Inc. v. TIG Specialty Ins. Co.
(2002) 29 Cal.4th 189, 198–99.)¿
2. Discussion
Among other things, Plaintiff
alleges: (1) that Plaintiff entered into written agreements with each of the
Defendants; (2) that Plaintiff performed all the promises, conditions, and
covenants it agreed to perform pursuant to the terms of the agreements, except
for those promises, conditions, and covenants excused by the acts and omissions
of Defendants; (3) that each of the Defendants breached their contract; and (4)
that Plaintiff has been damaged by these breaches. (Complaint, ¶¶ 10–13, 24–27,
38–41.)
These allegations are sufficient
pleaded for Plaintiff’s first, fifth, and ninth causes of action for breach of
contract to withstand demur.
Defendants argue that Plaintiff has
not complied with Business & Professions Code section 6148, making the
attorney-client representation agreements void. The Court disagrees with this
argument. The representation agreements, which are attached to the Complaint,
are sufficiently clear regarding the representation to meet the requirements of
Business & Professions Code section 6148. This argument is repeated for
each cause of action, and for each cause of action, the argument is without
merit.
The Court OVERRULES Defendants’
Demurrer to the first, fifth, and ninth causes of action for breach of
contract.
B. Account
Stated
1. Legal
Standard
“The essential
elements of an account stated are: (1) previous transactions between the
parties establishing the relationship of debtor and creditor; (2) an agreement
between the parties, express or implied, on the amount due from the debtor to
the creditor; (3) a promise by the debtor, express or implied, to pay
the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d
597, 600, citations omitted; see also Leighton v. Forster (2017) 8
Cal.App.5th 467, 491.)
2. Discussion
Among other things, Plaintiff
alleges that accounts were stated by Plaintiff and Defendants, in various
certain amounts, wherein it was stated that Defendants were indebted to
Plaintiff. (Complaint, ¶¶ 15, 29, 43.)
These allegations are sufficient
pleaded for Plaintiff’s second, sixth, and tenth causes of action for account
stated to withstand demur.
The Court OVERRULES Defendants’
Demurrer to the second, sixth, and tenth causes of action for account stated.
C. Open
Book Account
1. Legal
Standard
“The term ‘book
account’ means a detailed statement which constitutes the principal record of
one or more transactions between a debtor and a creditor arising out of a
contract or some fiduciary relation, and shows the debits and credits in
connection therewith, and against whom and in favor of whom entries are made,
is entered in the regular course of business as conducted by such creditor or
fiduciary, and is kept in a reasonably permanent form and manner and is (1) in
a bound book, or (2) on a sheet or sheets fastened in a book or to backing but
detachable therefrom, or (3) on a card or cards of a permanent character, or is
kept in any other reasonably permanent form and manner.” (Code Civ. Proc., §
337a.)
“A book account
is ‘open’ where a balance remains due on the
account. (Eloquence Corp. v. Home Consignment Ctr. (2020) 49 Cal.App.5th
655, 664–65, citation omitted.)
“An express
contract, which defines the duties and liabilities of the parties, whether it
be oral or written, is not, as a rule, an open account.” (Durkin v. Durkin (1955)
133 Cal.App.2d 283, 290, citations omitted.)
“The foregoing
general rule is subject to the exception that an open book account cause of
action may lie where the parties had agreed to treat money due under an express
contract as items under an open book account.” (Eloquence, supra,
at 665, citation omitted, emphasis in original.)
2. Discussion
Among other things, Plaintiff
alleges: (1) that Defendants became indebted to Plaintiff on an open book
account in various certain amounts; (2) that consideration was the reasonable
value of legal services performance and costs advanced; and (3) that Defendants
have refused and continue to refuse to pay these amounts. (Complaint, ¶¶ 18–19,
32–33, 46–47.)
These allegations are sufficient
pleaded for Plaintiff’s third, seventh, and eleventh causes of action for open
book account to withstand demur.
The Court OVERRULES Defendants’
Demurrer to the third, seventh, and eleventh causes of action for open book
account.
D. Reasonable
Value of Service
Plaintiff has not cited any
authority for causes of action solely based on “reasonable value of service,”
nor has the Court found such causes of action upon its own search. As best as
the Court can tell, these “causes of action” appears to be more of an
explanation for other causes of action.
Plaintiff does not provide any
specific arguments for why these causes of action should withstand demur. The
Court is not aware of any reason why these causes of action should withstand
demur.
The Court SUSTAINS Defendants’ Demurrer
to the fourth, eighth, and twelfth causes of action for reasonable value of
services, without leave for Plaintiff to amend its Complaint.
III.
Conclusion
Defendants’ Demurrer to the
Complaint is SUSTAINED in part.
The Demurrer is SUSTAINED
to the fourth, eighth, and twelfth causes of action, without leave to amend.
The Demurrer is OVERRULD to
the first, second, third, fifth, sixth, seventh, ninth, tenth, and eleventh
causes of action.