Case Number: BC509227    Hearing Date: April 23, 2014    Dept: 32

CASE NAME: Greymans, Inc. v. Courtney Love
CASE NO.: BC509227
HEARING DATE: 04/23/14
DEPARTMENT: 32
CALENDAR NO.: 2
TRIAL DATE: 4/23/14
NOTICE: OK
SUBJECT: (1) Demurrer to First Amended Complaint
(2) Motion to Strike
MOVING PARTY: (1), (2) Defendant Courtney Love
RESP. PARTY: (1) Plaintiff Greymans, Inc.; (2) None

TENTATIVE RULING

Demurrer based on Statute of Limitations

First Cause of Action (Breach of Contract – Written) OVERRULED.
Second Cause of Action (Common Counts) OVERRULED.

General Demurrer

First Cause of Action (Breach of Contract – Written) OVERRULED.
Second Cause of Action (Common Counts) OVERRULED.

Demurrer for Uncertainty OVERRULED.

Motion to Strike GRANTED WITHOUT LEAVE TO AMEND.

ANALYSIS

Untimely Opposition

The opposition brief was served by regular mail on April 10, 2014. It should have been served by a method reasonably calculated to arrive by the next business day. (CCP § 1005(c).) However, because Defendant has responded on the merits in reply, the Court will consider the opposition brief.

General Demurrer

Sham Pleading

Generally, an amended pleading supersedes the original pleading. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 884.) However, under the Sham-Pleading Doctrine, alteration of statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s case remain within the court’s cognizance. (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061.) Furthermore, under the Sham-Pleading Doctrine, allegations in an original pleading that render it vulnerable to demurrer or other attack cannot be omitted without explanation. (Kahn v. Mirda (2007) Cal.App.4th 740, 751.)

Defendant contends that the FAC is a sham insofar as it omits allegations from the original complaint that the parties entered into an oral agreement, which would be governed by a two-year SOL. In the original complaint, Plaintiff alleged that the contract was made orally and by performance. (Compl. ¶ BC-1.) However, the original complaint also alleged the following: “On or about May 26, 2008, Courtney Love, by and through her agents and/or representatives, requested that Greymans, Inc. perform services on her behalf to investigate and collect assets and/or monies that she claimed had been misappropriated by persons unknown. The terms were set out in writing: $5,000.00 retainer plus $125.00 per hour plus costs to be paid within 30 days of each monthly invoice. On June 30, 2010, Ms. Love acknowledged the debt owed to Greymans in writing.” (Ibid. [emphasis added].)

In the FAC, Plaintiff alleges the following “On or about May 6, 2008, Plaintiff sent written correspondence to Defendant’s representative Marie Walsh, which on information and belief was then provided to Defendant, containing the terms of the proposed contract….. [¶] On or about May 7, 2008, Plaintiff’s representative and Defendant spoke telephonically wherein they discussed the terms proposed in writing on or about May 6, 2008. [¶] On or about May 8, 2008, Plaintiff confirmed the telephone conversation in writing and provided a written proposal outlining the investigation into Defendant’s allegedly missing funds. The
writing again contained the same financial terms as set forth May 6, 2008. [¶]
On or about August 24, 2008, Plaintiff’s representative, Jacquie Davis, met with
Defendant at Defendant’s residence in Malibu, California, from approximately 1:00 p.m. to 8:05 p.m. During that meeting, Defendant verbally agreed to the written terms, requesting Plaintiff conduct the investigation and agreeing to compensate Plaintiff as outlined in the writings.” (FAC ¶¶ 7-10.)

Contrary to Defendant’s assertion the FAC does not contradict the original complaint with regard to the existence of a written agreement. The original agreement alleged that the terms were set out in writing. Moreover, the allegation that the contract was made orally was a legal conclusion that could be further explained with ultimate facts, which was done in paragraphs 7 to 10 of the FAC. Specifically, Plaintiff has sufficiently explained in the FAC that the terms were set forth in a writing and then verbally agreed to by Defendant. Thus, the sham pleading argument is unconvincing.

Statute of Limitations

In ruling on a demurrer based on a SOL, it must appear clearly from the complaint that that the SOL has run. (Childs v. State of California (1983) 144 Cal.App.3d 155, 161.)

Defendant contends that the two-year SOL for an oral agreement applies to the alleged agreement in this case. However, “the contract may be ‘in writing’ for purposes of the statute of limitations even though it was accepted orally or by an act other than signing.” (E.O.C. Ord, Inc. v. Kovakovich (1988) 200 Cal.App.3d 1194, 1201 [emphasis in original].) “The requirements are only that there be a writing containing all terms and that there be acceptance by the party to be charged. How that acceptance is manifested is a matter of proof.” (Ibid.) Here, Plaintiff has alleged sufficient facts to support a reasonable inference that Defendant verbally agreed on August 24, 2008, after a seven-hour meeting, to the written terms set forth in writings on May 6 and 8, 2008. (FAC ¶¶ 7-10.) Defendants attempt to distinguish E.O.C. Ord, Inc. on the basis that it involved a writing in which all material terms were contained. However, Plaintiff has alleged sufficient facts that the writings contained all material terms. Thus, Plaintiff has alleged a written contract so that the four-year SOL would apply at the pleading stage to Plaintiff’s FAC. (CCP § 337 [four-year SOL for action based on written contract and related common counts].)

Here, Plaintiff alleges that Defendant acknowledged the debt in writing on June 30, 2010. (FAC ¶ 13.) “In California an acknowledgment of indebtedness during the period before limitation statutes apply constitutes a continuing contract and tolls the statute to the date of the acknowledgment.” (Wilson v. Walters (1944) 66 Cal.App.2d 1, 4.) Plaintiff filed the original complaint on May 16, 2013, within four years of the acknowledgment of the debt.

The demurrer brought pursuant to the statute of limitations is OVERRULED.

First and Second Causes of Action – Breach of Contract and Common Count

Defendant contends that Plaintiff has not alleged the terms of the agreement with sufficient certainty. Here, Plaintiff has alleged sufficient material facts at the pleading stage regarding the terms of the agreement. Plaintiff has alleged the nature of the investigation and where it would take place; the amount of Plaintiff’s compensation; that Plaintiff’s services would be ongoing; and how Plaintiff would invoice the work. (FAC ¶ 7.) Defendant may clarify any ambiguities in discovery.

Defendant contends that Plaintiff has not alleged that goods were sold or work done in support of the common count claim. (Dem. 10.) The FAC alleges that Plaintiff performed the investigative services as agreed. (FAC ¶¶ 12, 16.) Thus, this argument fails.

Defendant argued in the moving papers that the contract falls under the Statute of Frauds. (Dem. 4.) Because the Court finds Plaintiff has pleaded a written contract, the Court need not address this argument on this demurrer.

The general demurrer to the first and second causes of action is OVERRULED.

Demurrer for Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Defendant fails to show that the FAC is so uncertain that she cannot determine what issues are stated. The demurrer for uncertainty is OVERRULED.

Motion to Strike

Defendant contends that Plaintiff has not pleaded a statutory or contractual basis to recover attorney’s fees. (CCP § 1021.) Plaintiff did not oppose the motion, and the FAC does not allege any facts in support of the request for attorney’s fees. Accordingly, the motion to strike is GRANTED WITHOUT LEAVE TO AMEND.