DEMURRER TO COMPLAINT

Moving Party: Defendant Sally Ann Vega

Respondent: Plaintiff Louis Vega

POS: Moving OK; Opposing OK

In this breach of contract action, Plaintiff alleges that he purchased Defendant’s contingent interest in their mother’s estate, but that following their mother’s death Defendant has refused to allow the Trustees to distribute her share of the estate to Plaintiff. The Complaint, filed on 10/16/13, asserts causes of action for:

1. Breach of Contract
2. Common Counts
3. Equitable Trust
4. Common Counts

The Case Management Conference is set for 3/3/14.

Defendant Sally Vega (“Defendant”) demurs to the first and second causes of action in the Complaint on the grounds that: (1) they are barred by the application of statute of limitations, (2) they fail to state facts sufficient to constitute a cause of action, and that (3) they are uncertain.

FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT:

The elements for breach of contract cause of action are: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Contract terms may be alleged generally according to legal intendment. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Pleading contracts by legal effects involves alleging the relevant terms in substance. (McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1489.)

A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

A demurrer will lie in an action founded upon a contract, when it cannot be ascertained from the pleading whether the contract is written or oral, or implied by conduct. (CCP § 430.10(g).)

An action upon a contract, obligation or liability founded upon an instrument in writing is subject to the 4–year statute of limitations governing obligations in writing. (CCP § 337(1).) Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. (See Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) The running of the statute must appear “clearly and affirmatively” from the dates alleged. It is not enough that the complaint might be barred. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.)

The Complaint alleges that Plaintiff and Defendant are among the natural children of Evelia Shubin (“Shubin”) (Complaint ¶ 5); during her lifetime, Shubin was the owner of real property located at 6684 Allston Street, Los Angeles, California 90022 (the “Property”) (Id. ¶ 6); prior to her death, Shubin created a trust entitled the Laura Evelia Shubin Trust dated Mary 25, 2008 (the “Trust”) (Id. ¶ 7); at or before the time of Shubin’s death, the Property became part of the res of the Trust (id. ¶ 9); in or about June 1984, both Plaintiff and Defendant anticipated that they would inherit from Shubin’s estate at the time of her death (Id. ¶ 11); in or about 1984, Defendant requested that Plaintiff purchase any right or interest in the Property (Id. ¶ 12); the parties thereupon entered into an agreement, documented in writing, providing for transfer to Plaintiff of any right or interest that Defendant might thereafter acquire with respect to the Property, in exchange for Plaintiff’s payment of $10,000 (Id. ¶ 13); Plaintiff paid Defendant the $10,000 agreed upon (Id. ¶ 15); upon Shubin’s death, Plaintiff and Defendant each acquired a 20% interest in the Property or its proceeds which remained in the Trust (Id. ¶ 16); in 2013, the Property was sold by the Trustees to a third party (Id. ¶ 17); the sale of the Property resulted in net sale proceeds of $273,912.30 (Id. ¶ 18); after a creditor’s claim in the sum of $9,284.79 is reduced from the sale proceeds, Plaintiff is entitled to receive not only his $52,925.50 share of the sale proceeds but also Defendant’s share proceeds (Id. ¶¶ 19-20); Defendant has breached the agreement by refusing to allow distribution of her share of the proceeds to Plaintiff and by purporting to revoke each of the various writing in which she had previously confirmed and instructed that her share of proceeds of the sale of the Property should be distributed directly to Plaintiff (Id. ¶ 21); Defendant has failed and refused to authorize distribution of her share of the sale proceeds to Plaintiff, despite demand therefore (Id. ¶ 22); and that as a result, Plaintiff has been damaged (Id. ¶ 25).

The Complaint adequately asserts a cause of action for breach of a written contract. While Defendant contends that Plaintiff’s claim is barred by the statute of limitations, the running of the statute does not appear “clearly and affirmatively” from the dates alleged in the Complaint. The statute of limitations does not start to run on Plaintiff’s breach of contract claim until AFTER Defendant’s breach and/or anticipatory breach – after Defendant acquired an interest in the Property and/or refused to transfer Defendant’s interest. Uncertainties, if any, may be resolved through discovery. Thus, the demurrer to the first cause of action is overruled.

SECOND CAUSE OF ACTION FOR COMMON COUNTS:

A common count is not a specific cause of action: “[R]ather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) The only essential elements of a common count are (1) the statement of indebtedness in a certain sum; (2) the consideration—i.e., goods sold, work done, etc.; and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

The statute of limitations applicable to the common counts is either two or four years, depending on whether the underlying debt was incurred orally or in writing. If the action is founded upon a contract or other writing (e.g., “book account”, “account stated” or money lent on a note), the statute of limitations is generally four years from the date of the last item in the account. (CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1395, fn. 9.) Otherwise, the statute of limitations is two years. (CCP § 339.)

“When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1560.)

The Complaint adequately alleges facts to support a claim for common counts. Further, “a common count, by long continued practice is not subject to attack by general demurrer or by a special demurrer for uncertainty.” (Auckland v. Conlin (1928) 203 Cal. 776, 778; Accord Smith v. Bentson (1932) 127 Cal.App.Supp. 789, 791.) Thus, the demurrer to the second cause of action is overruled.

Defendant has 10 days to answer.