Case Number: SC120499    Hearing Date: July 15, 2014    Dept: P

TENTATIVE RULING – DEPT. P

JULY 15, 2014 CALENDAR No: 3

SC120499 — RODRIGUES v. STEELE, et al.

DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT

Plaintiff filed an opposition brief explaining why the demurrers lack merit. Nevertheless, Defendant failed to file a reply brief refuting those arguments, perhaps relying on the Court to determine the merits of the arguments posited by Plaintiff.

In any event, the Court concludes that the demurrers lack merit.

With regard to Defendant’s assertion that the 1st, 2nd, 7th, and 8th – 11th causes of action are barred by various statutes of limitations:

The running of the applicable statutes of limitations must appear “clearly and affirmatively” from the dates alleged in the complaint. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403. That is not the case here. This time, Plaintiff (who filed this action in April, 2013) has properly alleged facts supporting his assertion that under the “discovery rule,” the statute of limitations as to the subject claims were tolled, viz., that until the summer of 2012, when he confronted Steele, he had no reason to bring any claim against Steele. See, FAC, paras. 13-15; CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1536-1537; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110. (“the limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry…”) (emphasis in original).

Indeed, whether the discovery rule ultimately applies here is likely an issue which cannot be resolved absent trial. “Resolution of the statute of limitations issue is normally a question of fact.” Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 810. Under the delayed discovery rule, “[t]here are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact.” United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 597.

With regard to Defendant’s assertion that the “claims for fraud” (viz., the 8th – 11thcauses of action) are uncertain:

The fraud claims are not uncertain, even applying the heightened standard applicable to fraud claims. The FAC is sufficient “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” Committee on Children’s Television, Inc. v. General Foods Corp.(1983) 35 Cal.3d 197, 216–217. In this regard, discovery can be utilized to clarify any purported uncertainties.

With regard to the assertion that the 1st, 2nd, and 7th causes of action based upon breach of contract are uncertain:

Demurrers for uncertainty are disfavored and are to be sustained only if the pleading is so incomprehensible that a defendant cannot reasonably respond. See, Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616.

This time, these claims are not uncertain, viz., they are properly stated.

With regard to the assertion that the 5th and 6th causes of action for breach of promissory note and promissory estoppel are uncertain:

In the FAC, these claims are not uncertain, viz., they are properly stated, although Plaintiff should not have incorporated all preceding paragraphs in paragraph 55 of the FAC. Indeed, in the FAC, Plaintiff utilized the “the disfavored shotgun (or ‘chain letter’) style of pleading, wherein each claim for relief incorporates by reference all preceding paragraphs, which often masks the true causes of action.” International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1179. Remarkably, Plaintiff utilized this pleading tactic notwithstanding the Court’s admonition against same in its ruling sustaining the demurrers to the initial complaint. See, April 8, 2014 Minute Order, at 4.

All demurrers are overruled. Answer is to be served and filed on or before July 31, 2014.

CASE MANAGEMENT CONFERENCE

Set on August __ , 2014 at 9:00 a.m.

NOTICE

______ shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.