Case Number: BC531640 Hearing Date: May 27, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Tuesday, May 27, 2014
Calendar No: 8
Case Name: Neff v. Rehm & Rogari
Case No.: BC531640
Motion: Demurrer
Moving Party: Defendant Rehm & Rogari
Responding Party: Plaintiff Jack Neff
Notice: OK

Tentative Ruling: Demurrer is sustained without leave to amend.
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Background –
On 12/27/13, Plaintiff Jack Neff, in propria persona, filed this action against Defendant Rehm & Rogari arising out of goods and services provided on 1/21/08 and 1/22/08. Plaintiff asserts causes of action for (1) breach of contract and (2) accounting. On 4/1/14, the Court sustained Defendant’s demurrer with leave to amend. On 4/16/14, Plaintiff filed the operative First Amended Complaint.

Demurrer –
Defendant demurs to the FAC.

1. Request for Judicial Notice
Defendant requests judicial notice of the Court’s 4/1/14 ruling and the Complaint: the RJN is granted.

2. 1st COA, Breach of Contract
Plaintiff’s 1st COA is based on Plaintiff agreeing to help Defendant to prepare an electronic file consisting of trial exhibits for a case in which Defendant was litigating. See, e.g., Complaint ¶¶ 11, 17, 20-22, 40.

a. Statute of Limitations
Defendant argues that the 1st COA is barred by the two year statute of limitations for an oral agreement. CCP § 339(1). The Court previously sustained the demurrer on this ground, concluding that Plaintiff’s Complaint alleged that Plaintiff demanded payment in late 2008 and 2009 (see Complaint ¶¶ 40-41 [RJN Ex. 2]) which supports accrual as of those dates (see, e.g., Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 634).

Defendant argues that the dates concerning Plaintiff’s demand have been omitted from the FAC without explanation and should be judicially noticed as being inconsistent with the FAC. See, e.g., Hendy v. Losse (1991) 54 Cal.3d 723, 742-43. The Court agrees. Plaintiff argues that Defendant should be equitably estopped from asserting the statute of limitations. See, e.g., FAC ¶ 38 (alleging that Defendant refused Plaintiff’s repeated demands for payment by offering excuses for non-payment such as lack of money to pay, that Plaintiff would be paid, and that Defendant may be paid from the case Defendant was litigating). This is insufficient to allege conduct amounts to a “misrepresentation bearing on the necessity of bringing a timely suit” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384 n.18 (original emphasis)) to support equitable estoppel.

To the extent Plaintiff argues that tolling applies (see FAC ¶ 37), this argument relies on CCP § 356 which addresses tolling due to a stay of an action by injunction or statutory prohibition: no such facts are alleged in the FAC. Plaintiff’s reliance on Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-26, is likewise misplaced as that case concerned an action on a judgment: no such facts are alleged in the FAC. Lastly, to the extent Plaintiff argues that it was reasonable for Plaintiff to refrain from suing Defendant while Defendant was his attorney in an unrelated action (see, e.g., FAC ¶ 28, p. 13:28-14:1), Plaintiff fails to cite to any authority to support this argument: notably, there are no facts alleged to support continuous representation (see CCP § 340.6(a)(2); Truong v. Glasser (2009) 181 Cal.App.4th 102, 116).

Therefore, Plaintiff’s FAC, in conjunction with the factual allegations in the Complaint, reveal that this action filed on 12/27/13 is untimely. The demurrer is sustained as to the 1st COA on this ground.

b. Mutual Assent
Defendant alternatively argues that Plaintiff fails to allege facts to support mutual assent (see, e.g., Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270-71 (consisting of an offer and an acceptance)) as to the material particulars of the contract (see, e.g., Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209). The Court previously sustained the demurrer on this ground noting that the Complaint attached correspondence between the parties which raised a dispute as to whether Plaintiff’s work was to be compensated for his work. See Complaint Exs. B, D [RJN Ex. 2].

The FAC alleges that when Plaintiff prepared the electronic file, a contract with open terms as to the price to be paid and when was created due to the “press of business.” FAC ¶¶ 20, 40-42. Plaintiff argues that this is sufficient to allege facts to support mutual assent as to the essentials of the contract under the Commercial Code. See, e.g., Commercial Code § 2311; Mancuso v. Krackov (1952) 110 Cal.App.2d 113, 115.

Defendant disputes whether the Commercial Code applies (see Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1186) as alleged by Plaintiff (see, e.g., FAC ¶ 11). The Commercial Code does not apply to an agreement involving the performance of services, which is determined by looking at the essence of the agreement. Wall Street Network, Ltd., 164 Cal.App.4th at 1186. Plaintiff alleges that the electronic file that he prepared was to repair corrupted electronic files. See, e.g., FAC ¶¶ 17-21. Although Plaintiff’s work resulted in 12 CDs (FAC ¶ 20), the essence of the agreement was not for the CDs themselves but for the services in repairing corrupted electronic files. Therefore, as alleged, the Commercial Code does not apply to Plaintiff’s action. Plaintiff fails to allege facts as to mutual assent. The demurrer is sustained on this ground.

3. 2nd COA, Accounting
Accounting requires an existing relationship between the parties that requires an accounting (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179). Plaintiff’s accounting claim is based on the alleged contract for services provided by Plaintiff (FAC ¶ 52) and Defendant’s representation of Plaintiff in an unrelated lawsuit (id. ¶ 53).

To the extent based on the alleged contract for services, Plaintiff’s 2nd COA is dependent on the 1st COA and is deficient for the same reasons. To the extent Plaintiff relies on Defendant’s representation based on an unrelated lawsuit, Plaintiff fails to allege any facts that some balance is due from Plaintiff based on the unrelated lawsuit. The demurrer is sustained as to the 2nd COA.

4. Ruling
The demurrer is sustained as to the FAC. Although Plaintiff has requested leave to amend, the Court declines to grant leave to amend because the facts are not in dispute, the nature of Plaintiff’s claim is clear, and the Court concludes that Plaintiff’s claim is barred by the statute of limitations. See Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.