Moving Party: Plaintiff and cross-defendant Linchun Xu (“plaintiff”)
Resp. Party: Defendants and cross-complainants Kechung Chou aka George Chou and Sanli Chou (“defendants” or “complainants”)

Plaintiff’s motion for judgment on the pleadings is DENIED.

BACKGROUND:

Plaintiff Linchun Xu (“plaintiff”) commenced this action on June 12, 2012, against defendant Kechung Chou aka George K. Chou for breach of contract. Plaintiff has filed a first amended complaint. Plaintiff alleges that a written agreement was made between the parties on September 17, 2005. (FAC ¶ 10.) The parties agreed to design and plan a commercial project, but defendant failed to obtain a planning procedure or requirements from the city of Riverside prior to preparing and submitting plaintiff’s plans. (Id., ¶¶ 11-14.) On December 1, 2007, defendant entered into a second agreement with plaintiff to design a revised plan for the structure. (Id., ¶ 16.)

The city of Riverside required a two story building on the location and defendant submitted plans for a one-story, 8,000 square foot building on December 2, 2005. (Id., ¶ 12.) The plan was rejected and defendant revised the plan to design a two-story building. (Id., ¶¶ 12-15.) Plaintiff alleges the working drawing was not submitted until February 5, 2008. (Id., ¶ 18.) Even then, the plan reviews were returned with numerous required corrections. (Id., ¶¶ 19, 23.)

On May 29, 2009, defendant abandoned the project. (Id., ¶ 22.) At that time, plaintiff had paid $45,000.00 for the work. (Id., ¶ 23.) Plaintiff paid an additional $20,000.00 to a second contractor to finish the project. (Id., ¶ 24.)

On August 12, 2013, defendants filed a cross-complaint for breach of contract. The cross-complaint is based on the same contracts as plaintiff’s complaint. (See Cross-Compl., ¶¶ 11, 12, 14.) Defendants allege that plaintiff breached the second contract by failing to make timely payments. (Id., ¶¶ 16-17.)

ANALYSIS:

Plaintiff moves for judgment on the pleadings as to the cross-complaint and its sole cause of action for breach of contract.

Where a cross-defendant moves for judgment on the pleading, the motion “may be made only after . . . the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired.” (Code Civ. Proc., § 438(f).) Plaintiff has answered the cross-complaint and the time to demur has expired. The motion otherwise appears to be timely. (See Code Civ. Proc., § 438(e).)

Plaintiff’s sole argument in support of the motion is that defendants’ claims are barred by the applicable statute of limitations. A cause of action for breach of a written contract must be commenced within four years. (Code Civ. Proc., § 337(1).) Defendants allege that plaintiff breached the agreement by failing to make the third of three installment payments. (Cross-Compl., ¶ 16.) From 12/8/07 to 2/2/08, defendants regularly reminded plaintiff that her third installment payment was past due. (Ibid.) Plaintiff finally paid the third payment on 2/2/08. (Ibid.) Defendants also allege that plaintiff failed to pay the fourth installment payment on 2/5/08. (Id., ¶ 17.) Therefore, the breach occurred on 2/5/08 at the latest.

Defendants did not file their cross-complaint until 8/12/13 – more than five years after the alleged breach. Even if the filing of plaintiff’s original complaint tolled the statute of limitations, this would be of no effect because plaintiff’s complaint was filed on 6/12/12 – more than four years after the 2/5/08 breach.

The Court rejects defendants’ argument that the cause of action did not accrue until a later date because plaintiff’s FAC alleges that defendants continued performing until 2009. The instant motion tests the sufficiency of the pleadings in the cross-complaint, and not the FAC. There are no facts alleged in the cross-complaint suggesting that defendants continued performing after the breach.

Defendants’ argument that plaintiff has waived the statute of limitations defense is well taken. A party waives the statute of limitations defense by failing to plead it in the answer or failing to specify it as grounds for a general demurrer. (See Minton v. Cavaney (1961) 56 Cal.2d 576, 581.) There is a “long and established rule that in this state, the statute of limitations is a personal privilege that must be affirmatively evoked in the lower court by appropriate pleading or it is waived.” (Petersen v. W. T. Grant Co. (1974) 41 Cal.App.3d 217, 220.) “[E]ven when, as here, the defense appears on the face of the complaint, it is not available unless specially pleaded.” (Ibid.) The statute of limitations is not a substantive matter that can be raised for the first time in a motion for judgment on the pleadings. (Id. at pp. 222-223.)

According to CCP, § 458:

“In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of The Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” (Code Civ. Proc., § 458.)

“It is settled that the bare allegation that a cause of action is barred by the statute of limitations, without specification of a particular code section, is not sufficient to raise this defense.” (DeCelle v. City of Alameda (1963) 221 Cal.App.2d 528, 533.) Where a party generally pleads “statute of limitations” in an answer without specifying the particular Code section relied upon, it may be determined that the party has waived its statute of limitations defense. (Ibid.)

Plaintiff has filed an answer which asserts, as the sixth affirmative defense, that the cross-complaint “is barred by the applicable statute of limitations.” No other allegations are included in this affirmative defense. This is not sufficient under section 458, and therefore plaintiff has not sufficiently raised the statute of limitations defense. Plaintiff has not moved to amend the answer to more adequately allege this affirmative defense.

Accordingly, plaintiff’s motion for judgment on the pleadings is DENIED.