Judge: Robert B. Broadbelt, Case: 24STCV00404, Date: 2025-03-05 Tentative Ruling

Case Number: 24STCV00404    Hearing Date: March 5, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Defendants ArtDeck, Inc., and Art Rubenstein

RESPONDING PARTY:       Plaintiff Birgitta Schwarz, as successor in interest to decedent Jaque Schwarz

Demurrer to First Amended Complaint

The court considered the amended moving,[1] opposition, and reply papers filed in connection with this demurrer.

REQUEST FOR JUDICIAL NOTICE

            The court grants defendants Art Deck, Inc., and Art Rubinstein’s request for judicial notice as to Exhibit 1, pages 1-2, a record by the State of California Contractors State License Board.  (Evid. Code, § 452, subd. (c).)  The court denies the request for judicial notice as to Exhibit 1, page 3 because an email is not a proper subject of judicial notice.

            The court denies defendants Art Deck, Inc., and Art Rubinstein’s request for judicial notice number 2 because (1) a police report is not an official act of the legislative, executive, or judicial department, nor does it include facts or propositions not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, and (2) even if it were, the police report is not relevant to a material issue presented by their pending demurrer.  (Evid. Code, § 452, subds. (c), (h); People v. Jones (1997) 15 Cal.4th 119, 171, n. 17 (overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823) [declining to take judicial notice of truth or accuracy of entry in a police report because it is reasonably subject to dispute]; Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue”].)

DISCUSSION

Plaintiff Jaque Schwarz (“Schwarz”) filed this action for breach of contract and quantum meruit against defendant Art Deck, Inc. on January 5, 2024. 

Thereafter, on May 28, 2024, plaintiff Brigitta Schwarz, as successor in interest to decedent Schwarz (“Plaintiff”), filed the operative First Amended Complaint against defendants Art Deck, Inc. (“ArtDeck”), and Art Rubinstein (“Rubenstein”) (collectively, “Defendants”).  The First Amended Complaint alleges 10 causes of action for (1) breach of written contract; (2) breach of oral contract; (3) breach of implied-in-fact contract; (4) quantum meruit; (5) failure to pay all wages owed; (6) waiting time penalties; (7) failure to provide accurate wage statement; (8) unfair business practices; (9) FEHA – retaliation; and (10) wrongful termination.

Defendants now move the court for an order sustaining their demurrer to each cause of action alleged against them in the First Amended Complaint.

The court overrules Defendants’ demurrer to the First Amended Complaint, in its entirety, on the ground that Plaintiff has not complied with Code of Civil Procedure section 377.32 because (1) that statute requires that a successor in interest attach a copy of the decedent’s death certificate to an affidavit or a declaration stating certain information, and it is not required to be attached to the complaint, and (2) the court, on its own motion, takes judicial notice of the “Declaration of Birgitta Schwarz Pursuant to CCP Section 377.32” filed on May 28, 2024, in which Plaintiff attached a certified copy of the death certificate of Schwarz.  (Code Civ. Proc., § 377.32, subd. (c) [“A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration”]; Evid. Code, § 452, subd. (d); May 28, 2024 Pl. Decl., Ex. A.)

The court overrules Defendants’ demurrer to the First Amended Complaint on the ground of uncertainty because the First Amended Complaint is not ambiguous or unintelligible.  (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Defendants’ demurrer to the second, third, fifth, sixth, seventh, eighth, ninth, and 10th causes of action on the ground that they do not state facts sufficient to constitute causes of action because they were not alleged in the original Complaint filed by Schwarz since Defendants have not presented adequate argument, authority, and analysis showing that, because Schwarz’s Complaint did not allege these causes of action, Plaintiff is barred from alleging those causes of action in the First Amended Complaint.  (Code Civ. Proc., § 430.10, subd. (e).)  Moreover, Defendants have not shown that the ninth and 10th causes of action are based on conduct that occurred after Schwarz passed away.  (Dem., p. 8:18-20.)

            The court overrules Defendants’ demurrer to the first cause of action for breach of written contract against ArtDeck because Defendants have not shown that, on the face of the First Amended Complaint, it does not state facts sufficient to constitute a cause of action against ArtDeck.  (Code Civ. Proc., § 430.10, subd. (e).)

            The court acknowledges, as Defendants have pointed out, that the written contract on which this cause of action is based (which is attached to the First Amended Complaint) states that it was valid for two years from the date thereof (i.e., August 22, 2016) and therefore expired as of August 22, 2018.  (FAC ¶ 12 and Ex. A, p. 1.)  However, it appears that Plaintiff may still assert this cause of action against ArtDeck pursuant to Labor Code section 2571, which states that, “[i]n the case of a contract [of employment for services to be rendered where the contemplated method of payment involves commissions] that expires and where the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.”  (Lab. Code, § 2751, subd. (b).)  Plaintiff has alleged that (1) the parties’ written agreement set forth the payment of 10 percent commissions to decedent Schwarz, and (2) the parties continued to perform pursuant to the terms and conditions of the written agreement.  (FAC ¶¶ 12, 34, 36.)  Thus, Plaintiff has alleged facts establishing that the parties’ written contract for payment of commission might have been in full force and effect following the August 22, 2018’s expiration date, such that Defendants have not shown, on the face of the First Amended Complaint, that this cause of action is based on an expired contract and therefore does not state facts sufficient to constitute a cause of action for breach of written contract.  (Lab. Code, § 2751, subd. (b).)     

            The court overrules Defendants’ demurrer to the second cause of action for breach of oral contract against ArtDeck because it states facts sufficient to constitute a cause of action since Plaintiff has adequately alleged the terms of the parties’ oral agreement on which this cause of action is based.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶ 42.)

The court overrules Defendants’ demurrer to the fifth, sixth, and seventh causes of action because Defendants have not shown, on the face of the First Amended Complaint, that these causes of action are necessarily barred by their respective statutes of limitations.  (Code Civ. Proc., § 430.10, subd. (e); Raja Development Co., Inc. v. Napa Sanitary District (2022) 85 Cal.App.5th 85, 92 [“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred”] [internal quotation marks omitted].) 

The court overrules Defendants’ demurrer to the fourth cause of action for quantum meruit against ArtDeck because it states facts sufficient to constitute a cause of action since Plaintiff has alleged that Schwarz furnished work as an employee for ArtDeck under the terms of their agreement, “which work was used for the benefit of ArtDeck[,]” and therefore has sufficiently alleged the element of conferral of a benefit.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶ 58; Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company (2018) 24 Cal.App.5th 153, 180 [“The requisite elements of quantum meruit are (1) the plaintiff acted pursuant to ‘an explicit or implicit request for the services’ by the defendant, and (2) the services conferred a benefit on the defendant”].)

The court overrules Defendants’ demurrer to the fifth, sixth, seventh, and eighth causes of action because Defendants have not shown that they do not state facts sufficient to constitute causes of action on the grounds that (1) Plaintiff is seeking commission for work performed after Schwarz resigned, and (2) these causes of action were not alleged in the original Complaint and “the summary of claims” were “never previously submitted to ArtDeck[.]”  (Code Civ. Proc., § 430.10, subd. (e); Dem., pp. 11:17-12:10.)

First, the Notice of Dissociation, a record by the State of California Contractors State License Board, does not establish that Schwarz was no longer working for ArtDeck as an employee at the time that the alleged wrongful acts or omissions occurred.  (RJN Ex. A, pp. 1-2.)  At most, it may show that Schwarz was no longer an officer of ArtDeck, which does not show that (1) he was not employed by ArtDeck, or (2) he did not perform work on behalf of ArtDeck for which he is required to be compensated.  (Ibid.)  

Second, Defendants have not presented adequate argument, authority, or analysis to establish that Plaintiff cannot allege these causes of action on the ground that they were not alleged in the original Complaint.  Further, even though Defendants have argued that ArtDeck first became aware of certain of the exhibits attached to the First Amended Complaint, that argument (1) is based on facts not alleged in the First Amended Complaint or matters of which the court has taken judicial notice, and (2) does not show that Plaintiff has failed to allege facts sufficient to constitute these wage and hour claims.  (Code Civ. Proc., § 430.30 [party may object by demurrer when ground for objection appears on face of complaint or from any matter of which the court is required to or may take judicial notice].)

The court overrules Defendants’ demurrer to the ninth and 10th causes of action because they state facts sufficient to constitute causes of action (1) since Plaintiff has alleged that, in support of the ninth cause of action, Schwarz informed defendant Rubenstein that he was diagnosed with a relapse of cancer in or around January 2023, and ArtDeck subsequently retaliated against him based on the reporting of his medical condition by failing to pay the commissions owed to him, (2) Defendants have not presented adequate argument, authority, or analysis to establish that Plaintiff cannot allege these causes of action on the ground that they were not alleged in the original Complaint, and (3) although Defendants contend that the 10th cause of action’s allegation that Schwarz was terminated in April 2023 contradicts the Notice of Dissociation, the Notice of Dissociation does not, for the reasons set forth above, establish that Schwarz was no longer working for ArtDeck as an employee at the time of his alleged wrongful termination.[2]   (Code Civ. Proc., § 430.10, subd. (e); FAC ¶¶ 16, 78.)

ORDER

The court overrules defendants Art Deck, Inc., and Art Rubinstein’s demurrer to plaintiff Birgitta Schwarz, as successor in interest to decedent Jaque Schwarz’s First Amended Complaint.

            The court orders defendants Art Deck, Inc., and Art Rubinstein to file an answer to plaintiff Birgitta Schwarz, as successor in interest to decedent Jaque Schwarz’s First Amended Complaint within 15 days of the date of this order.

            The court orders plaintiff Birgitta Schwarz, as successor in interest to decedent Jaque Schwarz, to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 5, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court