2013-00152510-CL-BC

Daniel K Karalash vs. Janell Clayton

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Palik, Anthyony J.

Defendant Janell Clayton (“Clayton”) demurrer to Plaintiff Daniel M. Karalash’s
(“Karalash”) first amended complaint (“FAC”) is OVERRULED.

This case arises from an employment dispute. Karalash alleges that, after a fellow
attorney was disbarred, Karalash took over that attorney’s immigration-law practice
and employed the attorney’s paralegal, Clayton. Karalash alleges that Clayton
misappropriated funds paid by a client. He further alleges that, after he loaned Clayton
funds to pay off her then-existing student loans and enter a paralegal training course,
she breached the loan agreement. The FAC contains two causes of action for
conversion and breach of written agreement. Clayton now demurs on grounds of
uncertainty and failure to state a cause of action.

Preliminarily, the court disregards the Clayton Declaration submitted with the moving
papers. On demurrer, the court is restricted to the face of the challenged pleading and
matters of which it may take judicial notice. (See Hensler v. City of Glendale (1994) 8
Cal.4th 1, 8, fn. 3.)
The demurrer or uncertainty is OVERRULED.

The allegations are not so uncertain that Clayton cannot frame a response. Demurrers
for uncertainty are disfavored and are only granted where the complaint is so muddled
that the defendant cannot reasonably respond. The favored approach is to clarify
theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc.
th
(1993) 14 Cal.App.4 612, 616; 1 Weil & Brown, Cal. Practice Guide, Civ. Proc. Before
Trial (Rutter 2013), § 7:85, p. 7(l)-39.)

The demurrer to the First Cause of Action for Conversion on grounds that the
allegations do not state a valid cause of action is OVERRULED.

Contrary to Clayton’s suggestion, Karalash need not allege the elements of conversion
with specificity. Moreover, the court does not discern any contradictory allegations in
the complaint and FAC that require it to sustain the demurrer.

The demurrer to the Second Cause of Action for Breach of Written Agreement on
grounds that the allegations do not state a valid cause of action is OVERRULED.

Karalash alleges, among other things, that Clayton has not repaid any portion of the
loan in compliance with the written loan agreement. No additional specificity is
required, and Clayton’s vague reference to the Civil Code does not persuade the court
that Karalash was required to serve a notice of default prior to demanding payment on
the loan or advancing the second cause of action. Furthermore, Clayton’s reliance on
Bartholomae Oil Corp. v. Oregon Oil & Development Co. (1930) 106 Cal.App. 57 is
misplaced because that case did not involve a demurrer.

Conclusion

The demurrer is OVERRULED.

Clayton is directed to file and serve her verified answer no later than May 1, 2014.

The notice of motion does not provide notice of the court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.