Judge: Shirley K. Watkins, Case: 22VECV00575, Date: 2022-08-16 Tentative Ruling

Case Number: 22VECV00575    Hearing Date: August 16, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Shahrokh Mokhtarzadeh, a PLC’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

            PROPOSED JUDGMENT OF DISMISSAL below, objections due within 10 days.

Introduction

Defendant Shahrokh Mokhtarzadeh, a PLC (Defendant) demurs to Plaintiff Veritext LLC’s (Plaintiff) Complaint.  Defendant’s demurrer places into issue all three causes of action (COA): breach of contract, breach of contract and common counts.  Plaintiff has not filed an opposition and presumed to be conceding to the Demurrer.

            Discussion 

            Defendant argues that the three COAs fail to allege sufficient facts and are all barred by the statute of limitations (SOL.)  Defendant first disputes entry into any oral agreement based upon the contention that Defendant never spoke to Plaintiff’s assignor.  However, the argument is not persuasive because it disputes Plaintiff’s allegation that the parties entered into an oral agreement.  For demurrer purposes, the allegation of entry into an oral contract is deemed to be true.  Because Defendant’s first argument disputes a fact deemed to be true, the demurrer on the first argument is unpersuasive.

            As to the SOL argument, Plaintiff alleges that the breach occurred on July 13, 2018 (Compl. pgs. 3 & 5 at pars. BC-2.)  The SOL for breach of an oral agreement is two years, accruing at the breach.  (Code Civ. Proc. sec. 339(1).)  The two breach of contract claims accrued on July 13, 2018 and the SOL expired on July 13, 2020.  This action being filed on April 25, 2022, makes it untimely and barred by the SOL. Because Plaintiff did not file an opposition, Plaintiff failed to show that the above defects can be cured.

            The Demurrer to the first and second COAs for breaches of an oral contract are SUSTAINED WITHOUT LEAVE TO AMEND.

            As to third COA for common counts, Defendant again argues SOL.  Plaintiff alleges that within the past four years that an account was stated and services were provided.  (Compl. pg. 7, par. CC-1.a. and b.)  The SOL on an open book account is four years and the SOL for quantum meruit is two years.  (Code Civ. Proc. secs. 337 and 339.)  Although Defendant’s argument relies upon the above allegation that the failure to pay occurred on July 13, 2018, the argument misconstrues the allegations in the Complaint.  There is no allegation in the Judicial Council Form Complaint showing that the allegations in the third COA incorporated the allegations made in the first two COAs.  Defendant’s reliance on the date of breach alleged in the two breach of contract claims is improper because there is no incorporation allegation.  For demurrer purposes, it is deemed true that an account was stated and services were performed within the past four years (i.e., since April 25, 2018.)  However, the Court notes Plaintiff is claiming prejudgment interest as of November 22, 2017.  (Compl. pg. 7, par. CC-2.)  This allegation shows that the failure to pay on the account stated and the failure to pay for the services performed accrued as of November 22, 2017.  Because this is beyond the two year and four year SOLs for the two common counts, this COA is also seen as being barred.  Because Plaintiff did not file an opposition, Plaintiff failed to show that the above defects can be cured.

            The demurrer to the third COA is SUSTAINED WITHOUT LEAVE TO AMEND. 

PROPOSED JUDGMENT

JUDGMENT OF DISMISSAL IN FAVOR OF DEFENDANT SHAHROKH MOKHTARZADEH, a PLC doing business as LAW OFFICES OF SHAHROKH

MOKHTARZADEH AND AGAINST PLAINTIFF VERITEXT LLC.  PLAINTIFF TO RECOVER NOTHING ON ITS COMPLAINT. COSTS PER MEMORANDUM OF COSTS.  ATTORNEY FEES, IF ALLOWED BY CONTRACT OR STATUTE, BY NOTICED MOTION. 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE. ANY OBJECTION TO PROPOSED    JUDGMENT DUE WITHIN 10 DAYS.