Case Number: BC502421    Hearing Date: July 15, 2014    Dept: 56

Case Name: Siegel v. Low Voltage Architecture, Inc., et al.
Case No.: BC502421
Matter: Demurrer to Amended Cross-Complaint

Tentative Ruling: Demurrer is overruled.

Plaintiff Stephen Siegel filed this action against Defendants Low Voltage Architecture Inc. and Matthew and Virginia Denos, arising out of the installation of audio, video, lighting, and security at Plaintiff’s home. Low Voltage filed a cross-complaint, with the 2/4/14 First Amended Cross-Complaint as the operative pleading. The FACC asserts causes of action for breach of contract, common counts, and fraud. Plaintiff demurs to the FACC.

Uncertainty –
Plaintiff argues that the entire FACC is uncertain. “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. The allegations of the FACC are not uncertain, and this ground is overruled.

Statute of Limitations –
Plaintiff argues that the FACC is barred by the statute of limitations, noting that Low Voltage has changed the dates of the contract and common count claims. The change in the date of the contract conforms to the same allegations in Plaintiff’s own Complaint. The date of breach in the FACC is the same as the original Cross-Complaint. And the allegations concerning a written agreement conform to Plaintiff’s own Complaint and the original Cross-Complaint (which alleged oral and written invoices).

Plaintiff fails to establish that the two-year statute of limitations for an oral contract applies (CCP §339(1)), and Plaintiff fails to address the three-year statute of limitations for the fraud claim (CCP § 338(d)). This ground is overruled.

Breach of Contract –
Plaintiff argues that the FACC fails to attach the written contract or allege the substance of the relevant terms and fails to allege facts constituting a breach. This argument has no merit. Low Voltage alleges that it entered into an agreement with Plaintiff for AV installation and that Plaintiff prevented Low Voltage from completing the installation and failed to pay. This ground is overruled.

Plaintiff also challenges the common counts claim. Low Voltage is entitled to plead both an express contract and commons count claim on the same transaction. And because the breach of contract claim is sufficiently pled, the common counts claim is sufficient. See Wm. E. Doud & Co. v. Smith (1967) 256 Cal.App.2d 552, 559. This ground is overruled.

Fraud –
Plaintiff argues that the FACC fails to allege facts with particularity as to fraud. The FACC alleges that on 11/2/11, Plaintiff represented that if Low Voltage agreed to perform the AV installation for a discounted price, Low Voltage would receive additional work and publicity; these statements were made by Plaintiff to Matthew Denos and Luis Zepeda; and that Plaintiff did not perform his promises and never intended to do so. At the pleading stage, this is sufficient and this ground is overruled.

Ruling –
The demurrer to the FACC is overruled, and Plaintiff shall answer within 10 days.