Tentative Ruling: JP International Air & Sea Corp’s demurrer based upon CCP §§ 430.30(a) and 430.10(e)&(f) is sustained with 20 days leave to amend; Charming Trim, Inc.’s demurrer is taken off calendar because the court strikes the 6th and 7th causes of action as being filed without leave of court.

JP International Air & Sea Corp. was an original defendant in the Complaint filed on 04/02/2012. On 7/22/13, Plaintiff filed various “Amendment[s] to Complaint,” wherein it substituted, among many others Charming Trim, Inc. (hereinafter, “Charming”) in lieu of DOE 12.

On 10/7/13, P filed its second amended complaint for (1) Breach of Fiduciary Duty; (2) Open Book Account; (3) Account Stated; (4) Conversion; (5) Breach of Contract; (6) Collection for Unpaid Freight Fees Pursuant to the Interstate Commerce Act 49 U.S.C. § 13706 and (7) Common Count: Goods and Services Rendered against Ds JP International Air & Sea Corp. (hereinafter, “JP International”) and by virtue of the Doe Amendment Charming Trim, Inc. only the 6th cause of action applies.

Plaintiff contends that, on 8/31/09, D JP International entered into an agency and contractual relationship with it and Aero-Jet, in which Defendant JP International acted as local agent for them in the United States and collected payments for them. P contends that, on/about 12/30/11, D JP International began withholding payments owed to it and to Aero-Jet. Aero-Jet has since assigned its claims to P.

DEMURRER # 1 – JP INTERNATIONAL – Demurrer based upon CCP §§ 430.30(a) and 430.10(e)&(f) – Demurrer is sustained with 30 days leave to amend.

As to the first through fifth causes of action: all these causes of action in the SAC are allegedly uncertain on the basis that the identify the purported agent as “D JP International;” however, the SAC fails to identify any named Defendant as “D JP International.” Instead, the most similarly named Defendant which the SAC identifies is Defendant JP International Air & Sea Corp. This uncertainty highlighted by the further allegation that Plaintiff has allegedly been assigned the purported rights of Speedway International and Aero-Jet to sue only “D JP International,” not D JP International Air & Sea Corp. This uncertainty needs to be clarified since no assignment rights are shown to exist as to the named defendant. Thus the demurrer is sustained as to the first through fifth causes of action due to uncertainty.

Additionally, the demurrer to the first cause of action is sustained pursuant to CCP §430.10(e) since there are no facts sufficient to establish the existence of a fiduciary duty. Pierce v. Lyman (1991) 1 Cal.App.4th 1093 states: “In order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. The absence of any one of these elements is fatal to the cause of action.” Id. at 1101.

Furthermore, the 2nd & 3rd causes of action are defective since they fail to state whether the open book account is based upon any account in writing. CCP §430.10(e) The essential allegations of a common counts ‘are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ (2 Witkin, Cal. Procedure (1954) Pleading § 266, p. 1242.). Allen v. Powell (1967) 248 Cal.App.2d 502, 510 (1967).”

Also, the 4th cause of action for conversion fails due to uncertainty and in failure to allege the necessary elements of conversion by the demurring defendant. CCP §430.10(e). The elements of a cause of action for conversion are stated in Moore v. Regents of the University of California (1990) 51 Cal.3d 120, 136 and are as follows: (1) Ownership interest or a right to possession of property at the time of conversion; (2) Defendant’s conversion by a wrongful act or dispossession of Plaintiff’s property rights; and (3) Damages

Finally, the 5th cause of action fails to attach the written contract or assert the material terms of the contract allegedly breached. CCP §430.10(e) “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. (Reichert v. General Ins. Co. (1968) 68 C.2d 822, 830).” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388. The complaint must be alleged either in pro haec verba or stated by stating its legal effect. Plaintiff may also attach a copy of the contract as an exhibit. Material terms must be pleaded but there is no duty to state the specific language of the contract. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.App.4th 189.

DEMURRER #2—CHARMING – The demurrer to the 6th and 7th causes of action are taken off calendar; the cause of action is ordered stricken as it was added without leave of court. Plaintiff must make a motion for leave of court to amend the action to add these causes of action, not exercise self-help.

“When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. [Patrick v. Alacer Corp. (2008) 167 C.A.4th 995, 1015].” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2013) ¶ 7:148.1a, p. 7(I)-63 (emphasis theirs).

On 9/16/13, Judge Murphy SUSTAINED D JP International’s demurrer to the FAC, with 20 days leave to amend. The First Amended Complaint, filed 5/11/12, contained causes of action for (1) Breach of Fiduciary Duty; (2) Open Book Account; (3) Account Stated; (4) Conversion; (5) Breach of Contract and (6) Alter Ego. Plaintiffs’ second amended complaint, however, contains causes of action for (1) Breach of Fiduciary Duty; (2) Open Book Account; (3) Account Stated; (4) Conversion; (5) Breach of Contract; (6) Collection for Unpaid Freight Fees Pursuant to the Interstate Commerce Act 49 U.S.C. § 13706 and (7) Common Count: Goods and Services Rendered.