Judge: Ronald F. Frank, Case: 21TRCV00594, Date: 2023-09-20 Tentative Ruling

Case Number: 21TRCV00594    Hearing Date: September 20, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 September 20, 2023¿¿ 

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CASE NUMBER:                  21TRCV00594

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CASE NAME:                        Robert Bass, et al v. Tim Roth                        .¿¿¿ 

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MOVING PARTY:                Defendant, Timothy R. Roth

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RESPONDING PARTY:       Plaintiffs, Robert Bass and Jeanette Bass

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TRIAL DATE:                        Not Set.   

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MOTION:¿                              (1) Demurrer¿to Third Amended Complaint

                                                (2) Motion to Strike

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Tentative Rulings:                  (1) Defendant’s Demurrer is overruled

                                                (2) Defendant’s Motion to Strike is denied

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The Court has previously overruled the demurrer and denied the motion to strike as to the Second Cause of Action from the second amended complaint.  While there are new allegations the Third Amended Complaint (TAC) added to the second cause of action, those new allegations do not create pleading defects subject to demurrer or motion to strike.

            As to the first cause of action for breach of contract, paragraph 9 of the TAC alleged a new oral contract was agreed upon on November 21, 2018 requiring Roth to pay $87,500 plus interest within one year.  Accepting that allegation as true as the Court must on demurrer, the contract would be either fully performed or would be breached on or before November 20, 2019, i.e., “within one year.”  An action for breach of that oral contract must have been field within two years of that date to satisfy the statute of limitations.  Because this suit was so filed -- before November of 2021 -- on August 12, 2021, it was timely filed within the two-year statute of limitations.  The Court acknowledges that Plaintiff’s allegations have varied from the original Complaint through now a third amendment.   And the Court grants the defense Request for Judicial Notice as to the prior pleadings.  But it is that third amendment that is before the Court.  It survives the attack of a stature of limitations defense at the pleading stage.  Nor is the TAC vague, ambiguous, or unintelligible.  Roth is given fair notice that Bass alleges breach of an oral contract to pay a debt, regardless of what the unverified prior versions of the TAC alleged.  Whether Plaintiff can prove there was any such promise remains for discovery and trial.  But the pleading is sufficient for the Court to survive demurrer. 

            The Court will invite oral argument on the “sham pleading” rule which is not briefed but is inferred by Defendant’s argument. 

            Defendant is to answer the TAC within 30 days.