CASE#: MSC13-00986
CASE NAME: TROY SILVA vs. THREE J’S DISTRIBUTING
HEARING ON DEMURRER TO 1st Amended COMPLAINT of SILVA
FILED BY THREE J’S DISTRIBUTING INC.
* TENTATIVE RULING: *

Defendant Three Js Distributing, Inc.’s Demurrer to the First Amended Complaint is sustained with leave to amend in part and overruled in part.

In reviewing the sufficiency of a pleading, the Court gives the Complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded, but does not assume the truth of contentions, deductions or conclusions of law. (Aubry v. Tri City Hospital Dist. (1992) 2 Cal.4th 962, 966 967.)

Statute of Limitations

The general demurrer to the breach of contract cause of action on the basis the Complaint is barred by the statute of limitations is overruled. (Cal. Code Civ. Proc., section 337, subd. (1). See also, Cal. Code Civ. Proc., section 430.10, subd. (e).)

Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. (It is not ground for special demurrer.) (See, Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300. See also, Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 [the expiration of the statute of limitations “must appear ‘clearly and affirmatively'” on the face of the pleadings].)

The Plaintiff alleges in his First Amended Complaint: “The original complaint, summons, and a properly completed application for waiver of fees was presented to the clerk on May 1, 2013, by leaving them in the clerk’s drop box at approximately 2:30 p.m.” [FAC. par 9.] Pursuant to Cal Rules of Court, Rule 2.210(b), any document deposited in a court’s drop box up to and including 4:00 p.m. on a court day is deemed to have been deposited for filing on that day. A demurrer tests only the legal sufficiency of the allegations; it does not test their truth, the plaintiffs’ ability to prove them or the possible difficulty in making such proof. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Finally, allegations that an event occurred “on or about” the crucial date for statute of limitations purposes overcome a general demurrer. It is enough that the claim may be timely. (See, Childs v. State of California (1983) 144 Cal.App.3d 155,160.)

Request for Judicial Notice.

Plaintiff’s opposed request for judicial notice pursuant to Evidence Code, section 452, subd. (d) is denied.

The Court may take judicial notice of the existence of the documents in court files, but it may not take judicial notice of the truth of the facts asserted in such documents. (See, Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565. See also, Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057 [the truth of any factual matters that might be deduced from official records is not the proper subject of judicial notice.]

Insufficiency

The general demurrer to the breach of contract cause of action on the grounds of insufficiency is sustained with leave to amend. (Cal. Code Civ. Proc., section 430.10, subd. (e). See also, Cal. Code Civ. Proc., section 425.10, subd. (a)(1).)

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 Cal.2d 822, 830.) Plaintiff has failed to meet this pleading burden. In particular, Plaintiff fails to allege the terms of the purported written contract.
Attaching the contract to the complaint is customary, but not required; the essential terms may be pleaded in haec verba or, if done cautiously, the import of the terms may be pleaded. (See, International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1187. See also, Construction Protective Services v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199 [in an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.])

Plaintiff’s Opposition fails to address this prong of Defendant’s demurrer, thereby conceding its merit. Thus, Plaintiff has failed to explain how he could amend his Complaint to cure the defects in the pleading.

The Demurrer is sustained with one last opportunity to amend. Any amended complaint is to be filed before 1:00 p.m. on April 30, 2014.