Case Number: BC540598    Hearing Date: July 28, 2014    Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Monday, July 28, 2014
Calendar No.: 5
Case Name: AT&T Corp., et al. v. I.T. Source Corporation
Case No.: BC540598
Motion: (1) Demurrer
(2) Application for Admission Pro Hac Vice
Moving Party: (1) Defendant I.T. Source Corporation
(2) Plaintiffs AT&T Corp.; SBC Long Distance, LLC, and Pacific Bell Telephone Company
Responding Party: (1) Plaintiffs
(2) Defendant (Stipulation of Non-Opposition)
Notice: OK

Tentative Ruling: (1) Demurrer is overruled. Defendant to answer within 10 days.

(2) Application for admission pro hac vice is denied.

Background –
On 3/26/14, Plaintiffs AT&T Corp.; SBC Long Distance, LLC dba AT&T Long Distance; and Pacific Bell Telephone Company dba AT&T California filed this action against Defendant I.T. Source Corporation arising out of the alleged failure to pay for telecommunications services. Plaintiffs assert a single cause of action for breach of contract.

Demurrer –
Defendant demurs to the Complaint on the grounds of uncertainty. “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.

Plaintiffs allege they provided telecommunications services to Defendant from October 2010 through November 2012 (Complaint ¶ 8), listing the various account numbers for services provided to Defendant for AT&T Business Network (“ABN”) services, access services, and local telephone and long distance calling services (id. ¶ 9). Plaintiffs allege and attach the agreements under which they provided ABN services (id. ¶ 10, Exs. A-B), access services (id. ¶ 11, Exs. C-D), and local telephone and long distance calling services (id. ¶ 12, Ex. E). Plaintiffs allege that they provided the services to Defendant, billed Defendant on a monthly basis, Defendant used the services provided, and Defendant was to pay Plaintiffs within 30 days after each invoice pursuant to the agreements. Id. ¶¶ 14-16. Plaintiffs list and attach various invoices by account number which Plaintiffs allege were sent to Defendant for services provided and were never paid. Id. ¶¶ 17, 19-38, Exs. F-Z. Additionally, Plaintiffs allege that the ABN services agreements required Defendant to carry a minimum annual revenue commitment which Defendant failed to do and Defendant owes early termination fees. Id. ¶ 18.

Defendant argues that the allegations as to various agreements and account numbers without indicating which applies to which Plaintiff renders the Complaint uncertain. The Court disagrees. At the pleading stage, Plaintiffs have alleged sufficient facts to apprise Defendant of the nature of the breach of contract claim. Any further details, such as which Plaintiffs provided what services, can be sought through discovery.

Defendant also argues that Plaintiffs refer to various documents as forming the basis of the agreements under which Plaintiffs provided services (see Complaint ¶ 10 (“AT&T Business Service Guide”), ¶ 12 ( “AT&T California Guidebook” and/or the “SBC Long Distance LLC Voice Product Reference and Pricing Guidebook for Interexchange, Interstate and International Services”)) but that these documents are not attached. However, contracts may be pled by alleging the legal effect of the contract by setting for the substance of the relevant terms (see Construction Protective Services, Inc. v. TIG Special Ins. Co. (2002) 29 Cal.4th 189, 199; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489). Here, Plaintiffs have attached the primary agreements and has alleged the substance of the relevant terms: that other documents may have additional terms and conditions (which may or may not be relevant) does not render Plaintiffs’ Complaint uncertain.

Therefore, the demurrer is overruled. Defendant is to answer within 10 days.

Application for Admission Pro Hac Vice –
Plaintiffs seeks permission to have counsel Paul R. Franke, III admitted pro hac vice. However, no proof of service has been provided indicating that the application was served on the State Bar of California at its San Francisco office (CRC 9.40(c)(1)). Additionally, the Court notes that Mr. Franke has appeared as counsel pro hac vice in four cases in state courts here in California within the past two years (Franke Decl. ¶ 10): this repeated appearances is cause for denial absent special circumstances (CRC 9.40(a)(3)). No explanation is provided as to either the repeated appearances or the presence of special circumstances. 9.40(b). Therefore, the application is denied.

The Court notes that Plaintiffs have otherwise complied with CRC 9.40 (see Franke Decl. ¶¶ 3-12); have paid the required fee to the State Bar (id. ¶ 13; O’Neil Decl. ¶ 2, Ex. A); and Defendant does not oppose the application (see Stipulation dated 7/17/14 ¶ 3).