GASIG BILAMJIAN VS. SARKIS TERZIAN

Case Number: EC062618    Hearing Date: October 31, 2014    Dept: NCD

TENTATIVE RULING (10/31/14)
#9
EC 062618
BILAMJIAN v. TERZIAN

Plaintiff’s Motion to Strike Defendant’s Demurrer
Demurrer

TENTATIVE:
The court in the interest of judicial economy has considered the demurrer, and has also considered plaintiff’s provisional opposition to the demurrer to the extent it addresses the demurrer on its merits.

Demurrer to the first cause of action for breach of contract is SUSTAINED on the ground the written contract is not attached to the pleading or the terms set forth verbatim.

Demurrer to the second, third, and fourth causes of action is OVERRULED.

Ten days leave to amend.

CAUSES OF ACTION: from Complaint
1) Breach of Contract
2) Money Lent
3) Account Stated
4) Money Had and Received

SUMMARY OF FACTS:
Plaintiff Gasig Bilamjian alleges that plaintiff entered into a written agreement with defendant Sarkis Terzian for the sale of the business and assets of a restaurant located in Pasadena. Plaintiff alleges that the contract required defendant to pay $300,000 as the sale price, that defendant did pay $200,000, but then failed to timely pay the monthly installments on the remaining $100,000.

ANALYSIS:
Motion to Strike Demurrer
Plaintiff has moved to strike the demurrer on the ground it is untimely.

Under CCP§ 436:
“The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

Here, the pleading was served on July 24, 2014, by substituted service, with a follow up mailing on the same date.

Under CCP section 415.20, service of summons by substituted service “is deemed complete on the 10th day after mailing.” Service was therefore complete on August 3, 2014, and and 30 days after this date was September 2, 3014. The demurrer was served and filed on September 8, 2014, which defendant concedes was six days late.

The demurrer was technically untimely, but in the exercise of its discretion on this particular motion under the circumstances, and in the interests of judicial economy, the Court will consider the demurrer.

The effect of striking this demurrer and requiring defendant to file an answer would basically invite the filing of a motion for judgment on the pleadings on the same grounds, which the court would eventually have to consider.

Plaintiff has filed a “provisional opposition” to the demurrer in the event the court denies the motion to strike, which requests a continuance of the hearing, but also addresses the merits of the demurrer.

The most expedient course here would be to deny the motion to strike, consider the provisional opposition as opposition, and determine the merits of the demurrer.

The demurrer challenges each of the causes of action stated on the ground that although the contract at issue is alleged to have been written, a copy of the contract is not attached to the pleading.

As to the first cause of action for breach of contract, to state a cause of action for breach of contract, a pleading must allege the formation of the contract, and its terms must be alleged verbatim or according to legal effect. Walsh v. Standart (1917) 174 Cal. 807.

“The party against whom a complaint…has been filed may object, by demurrer…to the pleading on any one or more of the following grounds:…
(g) In an action founded upon a contract, it cannot be ascertained from the pleading
whether the contract is written, oral, or is implied by conduct.”

Here it is alleged that the contract was written. [Para. 6]. Under such circumstances it is required that a copy of the written contract be attached to the pleading, or the terms set forth verbatim. Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459. In Otworth, the Second District stated:
“If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached or incorporated by reference.”
Otworth, at 459 (citations omitted).

Here, the terms are not set forth verbatim in quotation marks, and the demurrer is sustained on this ground with leave to amend to attach the contract or set forth the terms verbatim.

With respect to the common count causes of action, there is no pleading requirement that the contract be attached or pleaded at all in connection with such claims, which appear sufficiently stated. In fact, it is generally recognized that a demurrer does not lie as to a common count. See Moya v. Northrup (1970) 10 Cal.App.3d 276, 279. The demurrer as to these causes of action is therefore overruled.

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