Case Number: 18STCV07327 Hearing Date: June 18, 2019 Dept: 61

Defendant Michael Bush’s Demurrer to the Complaint is SUSTAINED, without leave to amend, as to the Second Cause of Action for Breach of Implied in Fact Contract, and OVERRULED as to the First and Third Causes of action for Breach of Oral and Written Contract.

DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

LIMITATIONS

Bush argues that the claims in the Complaint are time-barred. The limitations period for a claim on a written contract is four years (Code Civ. Proc. § 337, subd. (a)), and the limitations period for a claim on an oral or implied contract is two years. (Code Civ. Proc. § 339.) Bush reasons that because the original payment was due within 60 days of an auction in December 2012, the limitations period for these claims was long past by the time the Complaint was filed on December 5, 2018. (Demurrer at pp. 2–3.)

Bush neglects that the limitations period may be re-started when a party subject to a debt acknowledges the debt in writing and makes a partial payment upon it, as is alleged of Bush here.

No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby, provided that any payment on account of principal or interest due on a promissory note made by the party to be charged shall be deemed a sufficient acknowledgment or promise of a continuing contract to stop, from time to time as any such payment is made, the running of the time within which an action may be commenced upon the principal sum or upon any installment of principal or interest due on such note, and to start the running of a new period of time, but no such payment of itself shall revive a cause of action once barred.

(Code Civ. Proc. § 360.) “As a general rule, part payment of a debt or obligation is sufficient to extend the bar of the statute. The theory on which this is based is that the payment is an acknowledgment of the existence of the indebtedness which raises an implied promise to continue the obligation and to pay the balance.” (Martindell v. Bodrero (1967) 256 Cal.App.2d 56, 59.) Here, it is alleged that Bush repeatedly acknowledged the debt from April 2012 through December 2016, and on December 13, 2016, made a $20,000 payment “as a partial payment towards the balance owned to Guide Dogs of America.” (Complaint ¶ 22.) By this reckoning then, none of Plaintiff’s claims are time-barred.

ORAL CONTRACT — FIRST CAUSE OF ACTION

Bush argues that the First Cause of Action for Breach of Oral Contract fails because the nature of the contract is such that it requires a writing under the statute of frauds, because it contemplates performance over more than a year. (Demurrer at p. 4, citing Civ. Code § 1624, subd. (a)(1).) This argument fails, because the contract by its terms was to be completed within 60 days of the auction. (Complaint ¶ 8.) The period of years between 2012 and 2016 describes the period of Bush’s alleged breach, not the contemplated duration of the contract for the purposes of the statute of frauds.

Bush also argues that the contract fails for want of consideration. (Demurrer at p. 5.) But the Complaint plainly alleges that Plaintiff’s consideration for the contract was Bush’s ability to use its name, image, and cause in marketing materials for the auction. (Complaint ¶ 9.)

The Demurrer to the First Cause of Action is therefore OVERRULED.

IMPLIED-IN-FACT CONTRACT — SECOND CAUSE OF ACTION

Bush argues that the Second cause of Action fails because Plaintiff cannot simultaneously plead a claim for breach of a valid contract and a breach of a contract that is only implied in fact. (Demurrer at p. 6.)

Bush is correct. It is “internally inconsistent” for a party to seek to enforce both an allegedly valid contract and to assert a claim for an implied-in-fact contract, which “cannot lie where there exists between the parties a valid express contract covering the same subject matter.” (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203.) Motions for judgment on the pleadings have been granted on the grounds that such claims were internally inconsistent. (See Lance, supra, 44 Cal.App.4th at p. 203.) Although Plaintiff argues that he pleads this claim in the alternative to his express contract claims, in the event the express contracts are found unenforceable, this practice has been found impermissible. (See California Medical Ass’n, Inc. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 173 [“[T]he record indicates that CMA is improperly seeking to proceed on a quasi-contract claim only after trying unsuccessfully by its first amended complaint to enforce various express contracts against defendants directly.”].)

Accordingly, the Demurrer is SUSTAINED to the Second Cause of Action, without leave to amend.

BREACH OF CONTRACT — THIRD CAUSE OF ACTION

Bush’s arguments against the Third Cause of Action mirror his arguments as to the First, and fail for the same reason.

The Demurrer to the Third Cause of Action is OVERRULED.