Case Number: EC062080    Hearing Date: October 31, 2014    Dept: A

Hibu, Inc. v L/O of Maro Burunsuzyan

DEMURRER

Calendar: 9
Case No: EC062080
Date: 10/31/14

MP: Defendants, Law Offices of Maro Burunsuzyan and Maro Burunsuzyan
RP: Plaintiff, Hibu Inc.

ALLEGATIONS IN FIRST AMENDED COMPLAINT:
The Defendants entered into agreements to obtain advertising services from the Plaintiff in a telephone directory. The Defendants breached the agreements by failing to pay for the advertising services. In addition, the Defendant, Maro Burunsuzyan, breached an agreement to personally guarantee the performance of the Law Offices of Maro Burunsuzyan.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
1) Breach of Contract
2) Breach of Personal Guaranty
3) Breach of Contract
4) Breach of Personal Guaranty
…
47) Breach of Contract
48) Breach of Personal Guaranty
49) Open Book Account
50) Account Stated

[There are fifty causes of action in the First Amended Complaint in which the odd numbered causes of action from one to forty-seven are for breach of contract and the even numbered causes of action from two to forty-eight are breach of personal guaranty.]

RELIEF REQUESTED:
Demurrer to each of the fifty causes of action.

DISCUSSION:
This hearing concerns the demurrers of Defendants, Law Offices of Maro Burunsuzyan and Maro Burunsuzyan, to each of the fifty causes of action in the First Amended Complaint. The Defendants argue that each cause of action is uncertain and lacks sufficient facts.

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. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
A review of the First Amended Complaint reveals that the Plaintiff has identified the nature of the cause of action directed at the Defendants, e.g., a cause of action for breach of contract, a cause of action for breach of personal guaranty, open book account, or account statement. Further, a review of the allegations in the pleadings reveals that the Plaintiff’s claim is that the Defendants breached agreements to pay for advertising services. The Defendants can reasonably respond to the pleadings because they can reasonably determine the count or claim directed against them and the Defendants can reasonably determine what issues to admit or deny, e.g., that they entered into the agreements or that they breached the agreements.
Accordingly, there are no grounds to find that the causes of action are uncertain.

The Defendant, Maro Burunsuzyan, argues that the causes of action for breach of a personal guaranty cannot be pleaded because there is no personal guaranty in the copies of the agreements attached to the pleadings. The even numbered causes of action from two through forty-eight are causes of action for breach of a personal guaranty. The causes of action are based on the written agreements attached in exhibits A to H.
A review of the written agreements reveal that each contains terms and conditions in which there is a personal guaranty in paragraph 15. This paragraph states that the signer agrees that he has authority to sign the agreement and that he is personally and individually liable and that he personally undertakes and assumes the full performance of the agreement, including payment of amounts due.
The agreements are agreements with the Law Offices of Maro Burunsuzyan. The agreements are signed with two marks, one of which appears to be an “M”. Below the marks, in a box with the direction to “Print Signer’s Name”, there is the name in difficult to read handwriting that appears to be “Maro Burunsuzyan”. Since the Plaintiff alleges in the First Amended Complaint that Maro Burunsuzyan signed the agreements, this allegation is assumed true for the purposes of the demurrer.
This indicates that the signer is Maro Burunsuzyan. Under paragraph 15 of the agreement, Maro Burunsuzyan agreed to be personally liable and to personally undertake and assume the full performance of the agreement. Since this indicates that Maro Burunsuzyan agreed to personally guaranty the performance of the contract, the causes of action plead sufficient facts.

The Defendants also argue that the causes of action lack sufficient facts because they do not identify the manner in which they breached the written agreements. However, a review of the causes of action reveal that each identifies the written agreement and identifies the manner in which the Defendant breached the agreement, e.g., by the failure to pay the monthly amount due. Accordingly, there are no grounds to find that the Plaintiff failed to plead sufficient facts.

The Defendants did not offer any grounds in their memorandum in support of their demurrer to find that the forty-ninth cause of action for open book account or the fiftieth cause of action for account stated lack sufficient facts.

However, a review of the Plaintiff’s First Amended Complaint reveals that there is no need to plead fifty causes of action. Apparently, it is intended that each failure to pay a monthly payment of a contract was a separate cause of action. For example, the third cause of action is for the breach of the contract in exhibit B when the Defendant failed to pay for services on March 15, 2013. The seventh cause of action is for the breach of the same contract on February 15, 2013. There was no need to plead the failure to make subsequent monthly payments in two separate causes of action; sufferers from this prolix pleading included judges’ eyes and forests.
A review of the pleadings and the exhibits reveal that the Plaintiff’s claims are based on the breach of eight written agreements attached as exhibits A to H. Exhibit I contains a statement of account.
This review reveals that the Plaintiff has pleaded forty-eight separate causes of action for the breach of only eight contracts. Further, the breaches appear to be simply the failure to pay a monthly payment. The Plaintiff’s attorney offers no explanation in the opposition papers for deciding to plead each failure to pay a monthly payment as a separate breach of contract.
Under California law, there are grounds for a demurrer to a cause of action that adds nothing to a complaint by way of fact or theory. Rodrigues v. Campbell Industries (1978) 87 Cal. App. 3d 494, 501. Here, a review of the First Amended Complaint reveals that the Plaintiff has eight causes of action for breach of the agreements in exhibit A to H. The other forty causes of action are based on the same facts identifying a breach of the obligation to pay a monthly payment and on the same legal theory of breach of contract. The additional forty causes of action add nothing by way of fact or theory to the eight causes of action for breach of contract.
Accordingly, the Court will sustain the demurrers to causes of action one through forty-eight and grant leave to amend so that the Plaintiff can consolidate the forty-eight causes of action into eight causes of action, one for each of the written agreements attached in exhibits A to H. The Plaintiff can then plead each failure to pay a monthly payment of the same contract in a single cause of action, e.g., the third and seventh causes of action for the breach of the contract in exhibit B can be consolidated into a single cause of action.
In a similar manner, the Plaintiff can then consolidate the breach of the personal guaranty agreements into eight causes of action. This will result in a Second Amended Complaint with eight causes of action for breach of contract, eight causes of action for breach of personal guaranty, a cause of action for open book account, and a cause of action for account stated.

RULING:
Sustain demurrers to first through forty-eighth causes of action with leave to amend as eight causes of action for breach of the written agreements in exhibits A to H and eight causes of action for breach of the personal guaranty agreements in exhibits A to H.
Overrule demurrers to forty-ninth and fiftieth causes of action.