Judge: Peter A. Hernandez, Case: 22STCV16148, Date: 2024-08-28 Tentative Ruling
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Case Number: 22STCV16148 Hearing Date: August 28, 2024 Dept: 34
Morillo
Construction, Inc. v. Royal Construction & Architectural Corporation, et
al. (22STCV16148)
The
Motion to Exclude Common Counts Evidence is GRANTED.
Background
On May 13,
2022, Morillo Construction, Inc. (“Morillo”) filed its Complaint against
Defendants Royal Construction & Architectural Corporation (“Royal”); Eva
Neumann; Wells Fargo Bank, National Association (“Wells Fargo”); Western
Surety Company (“Western Surety”); and East West Bank (“East West”) alleging
the following:
1.
Breach of Warranty (UCC § 4207);
2.
Breach of Written Contract;
3.
Breach of Implied Covenant of Good Faith and
Fair Dealing;
4.
Breach of Written Contract;
5.
Conversion;
6.
Fraud;
7.
Negligence;
8.
Violations of Business & Professions Code §§ 7107,
7108, 7113, 7113, 7120; and,
9.
Constructive Trust.
On June 10, 2022, Western Surety filed: (1) General Denial of the Complaint; and (2) Verified, Interpleader Cross-Complaint against Royal and Morillo (“Western Surety’s Cross-Complaint”).
On July 13, 2022, Morillo filed its Verified Answer to Western Surety’s Cross-Complaint.
On August 3, 2022, East West filed: (1) Answer to the Complaint; and (2) Cross-Complaint against Wells Fargo, Royal, and Eva Neumann (“East West’s Cross-Complaint”) alleging the following:
1.
Breach of Warranty (UCC § 4201 et seq.);
2.
Breach of Warranty (UCC § 3417);
3.
Money Had and Received;
4.
Implied and Equitable Indemnity;
5.
Apportionment/Contribution; and
6.
Declaratory Relief.
On August 8, 2022, by request of Morillo, the Clerk’s Office dismissed without prejudice Wells Fargo from the Complaint.
On November 13, 2023, the court: (1) granted summary judgment in favor of East West and against Morillo on the second and third causes of action in the Complaint; and (2) granted summary judgment in favor of Wells Fargo and against East West on East West’s Cross-Complaint.
On November 21, 2023, the Court entered Judgment in favor of East West and against Morillo on the second and third causes of action in the Complaint.
On November 22, 2023, Royal and Eva Neumann filed their Amended Answer to the Complaint.
On November 22, 2023, Royal filed its Cross-Complaint against Morillo (“Royal’s Cross-Complaint”) alleging the following:
1.
Breach of Contract; and,
2.
Common Counts.
On November 30, 2023, the court entered Judgment in favor of Wells Fargo and against East West on East West’s Cross-Complaint.
On December 27, 2023, Morillo filed its Answer to Royal’s Cross-Complaint.
On May 22, 2024, Morillo filed its Motion to Exclude Evidence Pursuant to Code of Civil Procedure section 454 (“Motion to Exclude Common Counts Evidence”) concerning Royal’s Cross-Complaint filed on November 22, 2023. Morillo has also filed its Proposed Order.
On August 5, 2024, Royal filed its Opposition and on August 19, 2024, Morillo filed its Reply.
Legal Standard
“It is not
necessary for a party to set forth in a pleading the items of an account
therein alleged, but he must deliver to the adverse party, within ten days
after a demand thereof in writing, a copy of the account, or be precluded from
giving evidence thereof. The court or judge thereof may order a further account
when the one delivered is too general, or is defective in any particular. If
the pleading is verified the account must be verified by the affidavit of the
party to the effect that he believes it to be true; or if the facts are within
the personal knowledge of the agent or attorney for the party, or the party is
not within the county where the attorney has his office or from some cause
unable to make the affidavit, by the affidavit of the agent or attorney.” (Code
Civ. Proc., § 454, paragraph break omitted.)
“Code of Civil Procedure section
454, providing
for a bill of particulars, is designed to afford ready relief to a defendant in
need of further information concerning the details of an account upon which he
has been sued.” (Lewin v. Merck & Co. (1962) 209 Cal.App.2d 131,
133, citations omitted.)
Discussion
Morillo
moves the court to prohibit Royal from presenting evidence at trial in support
of its second cause of action for “common counts.” (Motion to Exclude Common
Counts Evidence, p. 6:3–6; Proposed Order, p. 2:8–12.)
Royal contends that Morillo’s demand for a Bill of Particulars is untimely because the discovery cut-off date had passed. It recognizes that Code of Civil Procedure section 454 governs Morillo’s request and this statutory provision “does not specify a particular time frame for making the demand.” (Opposition, at p. 3.) However, Royal does not provide authority for its proposition that the discovery cut-off provisions pursuant to section 2024.020 applies to section 454. As a result, the court will not create one.
It is unknown to the court at this time whether an account actually exists. To the extent there actually is an account, the court shall preclude Royal from presenting evidence as to that account solely for the purposes of Royal’s second cause of action for common counts.
Conclusion
The
Motion to Exclude Common Counts Evidence is GRANTED.