Case Number: KC070197 Hearing Date: August 07, 2018 Dept: J

Re: Clarendon National Insurance Company, etc. v. Consolidated Staffing Solutions, Inc. (KC070197)

DEMURRER TO PLAINTIFF’S COMPLAINT

Moving Party: Defendant Consolidated Staffing Solutions, Inc.

Respondent: No timely opposition filed (due 7/25/18)

POS: Moving OK

Plaintiff sold Defendant Consolidated Staffing Solutions, Inc. (“defendant”) a workers’ compensation insurance policy insuring defendant for the period of 7/1/14-12/31/14. Plaintiff alleges that defendant failed to pay the Final Premium due thereunder. The complaint, filed 4/9/18, asserts causes of action against defendant and Does 1-20 for:

1. Breach of Agreement

2. Account Stated

3. Book Account

4. Quantum Meruit

A Case Management Conference is set for 9/13/18.

Defendant Consolidated Staffing Solutions, Inc. (“defendant”) demurs, per CCP § 430.10(e), to the first through fourth causes of action in Plaintiff Clarendon National Insurance Company, as successor in interest by way of merger with Sussex Insurance Company fka Companion Property and Casualty Insurance Company’s (“plaintiff”) complaint, on the basis that they each fail to state facts sufficient to constitute causes of action. Defendant also demurs, per subsection (g), to the first cause of action on the basis that plaintiff has failed to attach a copy of the contract or plead the essential terms of same.

FIRST CAUSE OF ACTION (i.e., BREACH OF AGREEMENT):

“To state a cause of action for breach of contract, [plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290). Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).) If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59.)” Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458.

Plaintiff has failed to sufficiently identify the contract. Plaintiff alleges that it “sold, issued and delivered to defendant(s) a written Workers’ Compensation Insurance Policy or several policies insuring defendant(s) for the period of July 1, 2014 through December 31, 2014 (Policy No.: CPCA18142)….” (Complaint, ¶ 6; emphasis added). Plaintiff, however, has failed to attach a copy or copies of the written agreement(s). It is unclear, then, whether plaintiff’s cause of action is based on one written contract or plural written contracts. Plaintiff has not sufficiently pled the terms of same verbatim in the body of the complaint.

Accordingly, defendant’s demurrer to the first cause of action is sustained.

SECOND, THIRD AND FOURTH CAUSES OF ACTION (i.e., ACCOUNT STATED, OPEN BOOK ACCOUNT AND QUANTUM MERUIT, RESPECTIVELY):

“A common count is not a specific cause of action…; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395 (internal citations omitted).

As the common counts are premised upon the breach of agreement cause of action and the demurrer to that cause of action is sustained, the common count causes of action are likewise defective; as such, defendant’s demurrers to the second through fourth causes of action are sustained.

The court will hear from counsel for plaintiff as to whether leave to amend is requested.