Case Name:   Calmar Optcom, Inc. v. Optimedica Corporation, et al.

Case No.:       1-14-CV-261478

 

Currently before the Court is the demurrer of defendants Optimedica Corporation (“Optimedica”), Abbott Medical Optics (“Abbott”), and Mark Murray (“Murray”) (collectively, “Defendants”) to the first amended complaint (“FAC”) of plaintiff Calmar Optcom, Inc. (“Calmar”). Optimedica demurs to the third, fourth, fifth, sixth and seventh causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Murray demurs to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Abbott demurs to the seventh cause of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

 

Request for Judicial Notice

 

In support of their demurrer, Defendants ask the Court to take judicial notice of a certified copy of Optimedica’s Certificate of Good Standing issued by the Office of the Secretary of State of the State of Delaware pursuant to Evidence Code section 452, subdivision (c). The request for judicial notice is GRANTED. (See Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1484; Waltrip v. Kimberlin (2008) 164 Cal.App.4th 517, 522, fn. 2.)

 

Third Cause of Action for Account Stated

 

In its FAC, Calmar alleges, in pertinent part, “[W]ithin the last four years, in Santa Clara County, California, Optimedica became indebted to Calmar when, at the request of Optimedica, an account was stated in writing by and between Plaintiff, on the one hand, and Optimedica, on the other hand, wherein it was agreed that Optimedica was indebted to Plaintiff in the sum of $882,446.30.” (FAC, p. 11:1-4.)

 

If considered without reference to the remainder of the FAC, these allegations are sufficient to state a cause of action for account stated. (See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [common counts, such as cause of action for account stated, may be generally pled].)  However, if a common count, such as a cause of action for account stated, is contradicted by other facts stated in the complaint and incorporated into the cause of action, the common count is subject to demurrer. (Id.)

 

First, Optimedica argues that allegations regarding the cause of action for account stated are contradicted by paragraph 12 of the FAC, which indicates that Optimedica rejected the delivery of the four lasers on June 27, 2013. (FAC, p. 12:15-17, 19-20.) Thus, it contends that it never acknowledged a “previous indebtedness.” Whether Optimedica acknowledged a previous indebtedness between the parties depends on the time at which payment was due. Here, Optimedica identifies no facts in paragraph 12 or elsewhere in the FAC indicating that payment was not already due prior to the rejection of the lasers on June 27, 2013 or that Optimedica did not acknowledge the debt prior to the rejection. Therefore, as it is possible that Optimedica acknowledged the debt prior to the rejection of the lasers, Calmar properly alleges that Optimedica previously agreed that it was indebted to Plaintiff.

 

Next, Optimedica contends that Calmar failed to plead a definite amount owed by Optimedica. It reasons that since the filing of the original complaint, Calmar has increased the total amount due from $757,631.68 to $882,447.30. (Compare Compl.,      p. 11:5 and FAC, p. 11:4.) In opposition, Calmar asserts that the sum is readily ascertainable and the increase is solely due to interest and storage charges. Calmar’s argument is not persuasive. At the time of the acknowledgement of the debt, Optimedica could not have readily ascertained the amount of interest and storage charges it would owe. (See Joslin v. Gertz (1957) 155 Cal.App.2d 62, 67 [“The amount of the balance agreed to be owing must appear or be readily ascertainable from the total of figures then in existence and agreed to.”].) Such a determination would be based on the number of days the dispute continued and the amount of the storage fees charged. Thus, Calmar fails to allege facts sufficient to state a cause of action for account stated. Accordingly, the demurrer to the third cause of action should be SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.

 

Fourth Cause of Action for Goods Sold and Delivered

 

            Optimedica argues that Calmar’s claim for goods sold and delivered fails because the claim is precluded by the existence of an express contract. Generally, a common count, such as a claim for goods sold and delivered, fails where there exists a valid express contract covering the same subject matter. (Rains v. Arnett (1961) 189 Cal.App.2d 337, 343.) However, a number of exceptions to the general rule are recognized, including “where complete performance of the express contract is prevented by the defendant, or the defendant by his acts repudiates the contract.” (Id. at p. 344.)

Here, Calmar alleges that it attempted to completely perform the underlying contract by delivering the final shipment of lasers. (FAC, p. 5:15-16.)  It further alleges that its performance was prevented by Optimedica by rejecting the shipment of the lasers. (FAC, p. 5:16-20.) Accordingly, the exception applies and Calmar may allege a claim for goods sold and delivered in addition to its cause of action for breach of contract.

 

Next, Optimedica contends that Calmar never delivered the goods to it because it rejected the shipment. Optimedica’s argument is without merit. Pursuant to the terms and conditions of the sale, “[d]elivery shall be deemed made upon transfer of possession to the carrier at the [FCA Calmar Optcom factory].” (See Ex. 1 to the FAC.) Thus, the rejection of the shipment does not contradict Calmar’s allegation that it delivered the lasers. (FAC, p. 11:14-16.) Accordingly, the demurrer to the fourth cause of action is OVERRULED.

 

Fifth Cause of Action for Services Rendered/Quantum Meruit

Optimedica contends that the claim for services rendered/quantum meruit must fail because it did not receive any benefit from the services allegedly rendered by Calmar. In opposition, Calmar argues that, by implication, the inspection and storage of the lasers conferred a benefit on Optimedica because it provided Optimedica with additional information concerning the functioning of the lasers and a secure place to store the lasers, pending their retrieval. Calmar’s argument is persuasive. Optimedica puts forward no authority indicating, as a matter of law, that the additional information the inspection provided or the secure storage of the lasers provided it no benefit whatsoever. Thus, Optimedica’s argument is without merit and the demurrer the fifth cause of action for services rendered/quantum meruit is OVERRULED.

 

Sixth Cause of Action for Fraud

           

            Optimedica and Murray argue that Calmar’s claim for fraud is barred by the economic loss rule because the misrepresentations at issue arise from the same facts as Calmar’s breach of contract claim. In opposition, Calmar does not dispute that the doctrine generally applies. However, it indicates that its cause of action falls into one of the common law exceptions, namely, fraudulent inducement. (See Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [tort damages permitted where contract fraudulently induced].)

 

Calmar alleges the following alleged misrepresentations made by Optimedica and Murray: (1) between July of 2012 and May of 2013, Optimedica and Murray represented that the lasers were defective (FAC, p. 12:16-19); (2) Optimedica concealed that the lasers functioned properly, but they were attempting to require Calmar to change the specification of the equipment (FAC, p. 12:20-23); and (3) Optimedica and Murray promised it would pay for the lasers already purchased if Calmar repaired the returned lasers (FAC, p. 12:24-28).

 

Each of these alleged misrepresentations concern obligations that are a part or element of the contracts entered into between the parties and there are no allegations of a separate misrepresentation that would have induced Calmar to enter into the contract. (See Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130 [“A party alleging fraud or deceit in connection with a contract must establish tortious conduct independent of a breach of the contract itself, that is, violation of ‘some independent duty arising from tort law.’ [Citation.]”].) Thus, the fraudulent inducement exception to the economic loss doctrine does not apply. Accordingly, the demurrer to the sixth cause of action is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.

 

Seventh Cause of Action for Declaratory Relief

 

Optimedica contends that Calmar’s cause of action for declaratory relief should be dismissed because it is duplicative of the second cause of action for foreclosure of security interest. In opposition, Calmar argues that its request for declaratory relief concerning its right to retain the lasers and sell them to pay off Optimedica’s debt is separate and distinct from its cause of action to foreclose on its security interest. Calmar’s argument is persuasive.

 

The second cause of action concerns the foreclosure of Calmar’s security interest in the nine lasers stored at its facility, but owned by Optimedica. (See FAC, p. 10:16-19.) Under the terms of the contracts between the parties, Optimedica’s payment obligations are secured by the lasers sold. (See FAC, Ex. 1.) In contrast, in its seventh cause of action, Calmar requests a judicial determination that, regardless of whether it can foreclose its security interest in the lasers, it can sell the lasers to reduce Optimedica’s outstanding obligations as an equitable setoff. (See FAC, p. 15:11-14.) Therefore, the causes of action are not duplicative.

 

Next, Abbott argues that Calmar’s cause of action for declaratory relief against it should be dismissed because Calmar does not plead any facts indicating that it is directly or vicariously liable for obligations of Optimedica. In opposition, Calmar asserts that it pleads sufficient facts to establish an actual controversy concerning whether Abbott is liable as the purchaser of Optimedica.

 

Here, Calmar alleges that Abbot has acquired all or substantially all of Optimedica’s assets (FAC, p. 15:25-26); the acquisition was made without sufficient cash consideration to meet the claims of creditors (FAC, p. 15:27-28); Abbott uses Optimedica’s former assets and employees to manufacture the same products Optimedica used to manufacture (FAC, p. 16:3-5); one or more of Optimedica’s officers, directors, or shareholders occupy the same role for Abbott (FAC, p. 16:6-9); and Abbott is attempting to avoid obligations to creditors such as Calmar (FAC, p. 16:18-19.) It further alleges that there is an actual controversy between the parties as to whether Abbott is liable for Optimedica’s debt. (FAC, p. 20-21.) Thus, Calmar alleges sufficient facts to state a cause an actual, present controversy between the parties.

 

Based on the foregoing, the demurrer to the seventh cause of action for declaratory relief is OVERRULED.