Case Number: BC522902    Hearing Date: September 08, 2014    Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
________________________________________
Hearing Date: Monday, September 8, 2014
Calendar No: 7
Case Name: Pair v. Galvez, et al.
Case No.: BC522902
Motion: Demurrer and Motion to Strike
Moving Party: Defendant Desiree Galvez dba Jeanius and Smarteepants
Responding Party: Plaintiff Constantina Pair
Notice: Untimely motions and opposition; improperly served oppositions

Tentative Ruling: Demurrer and motion to strike are taken off-calendar as untimely. Moving party to show cause at hearing why default should not be entered and cross-complaint dismissed.
________________________________________

Background –
On 9/30/13, Plaintiff Constantina Pair filed this action against Defendants Desire Galvez and Jeanius & Smarteepants arising out of a consignment agreement to provide items for sale on the internet. On 11/1/13, Galvez filed a cross-complaint against Plaintiff and Constantina Children’s Foundation, Inc. (“CCF”) arising out of donations made to CCF. On 3/4/14, in response to a demurrer filed by Defendants, Plaintiff filed a First Amended Complaint. This matter is set for a court trial for 9/8/14.

Factual Allegations of the FAC –
In December 2010, Plaintiff entered into an oral consignment agreement with Defendants to sell Plaintiff’s personal property through the internet: Defendants would retain 35% of the sale price and Plaintiff would receive 65%. ¶¶ 7-8. Additionally, Galvez offered to donate 5% of her commission to Plaintiff’s charity CCF. ¶ 10. Plaintiff provided items to Defendants for sale between January 2011 to May 2012 (¶¶ 9, 11) and Defendants made payments for sold items during that time (¶ 12, Ex. 1).

However, Defendants stopped making payments notwithstanding items continuing to be sold. ¶ 13. After Plaintiff attempted to contact Defendants in late October 2012 (¶ 14), Galvez provided excuses in November 2012 and promised to provide payment and return all unsold items to Plaintiff by 12/31/12 (¶ 15): Defendants fail to make payments or return any items (¶ 16). In January and February 2013, the parties exchanged communications disputing whether Galvez needed to submit an IRS Form 1099 for all previously sold items and whether the outstanding payment for sold items would be made by check or cashier’s check. ¶¶ 17-26, Ex. 2.

The FAC asserts causes of action for (1) breach of contract, (2) breach of covenant of good faith and fair dealing, (3) fraudulent misrepresentation, (4) conversion, (5) declaratory relief, (6) accounting, and (7) unjust enrichment.

Demurrer and Motion to Strike –
On 7/7/14, Defendants filed a demurrer to the 2nd, 3rd, 5th and 7th COAs of the FAC and a motion to strike as to Plaintiff’s claims for punitive damages and attorney fees.

Preliminarily, Plaintiff correctly notes that the demurrer and motion to strike are untimely, based on the FAC being served by mail on 3/4/14. See CCP §§ 471.5(a), 1013(a). However, Plaintiff’s oppositions were filed and served on 8/26/14 by mail: the oppositions are therefore untimely pursuant to CCP § 1005(b) and improperly served pursuant to CCP § 1005(c).

The Court notes that it has discretion to consider untimely pleadings. McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-82. While there is no indication that Plaintiff took any steps to have a default or default judgment taken, there is prejudice by the delay in the filing of the demurrer and motion to strike. Notably, the motions were filed two months before this matter is set for court trial and are set for hearing on the date of the court trial. Therefore, the Court declines to consider the demurrer and motion to strike.

The Court orders moving party to show cause why default should not be entered against her on Sept. 8 and her cross complaint dismissed.