Case Name:   Pentech Funding, LLC, v. Glamour Cosmetics, Inc., et al.

Case No.:       1-13-CV-252127

 

This case arises out of an alleged breach of an equipment lease agreement.  On or about December 11, 2006, defendants Glamour Cosmetics, Inc. dba European Body Concepts (“Glamour”) entered into an equipment lease agreement (the “Agreement”) with Five Point Capital, Inc. (“Five Point”), pursuant to which Five Point, as lessor, purchased, leased, and delivered chairs to Glamour for Glamour’s spa business.  (First Amended Complaint (“FAC”) ¶ 3-6, 10, Ex. 1.)  Defendant Irene Koufalls (“Ms. Koufalls”) executed a written guaranty for the Agreement.  (FAC, ¶ 22, Ex. 3.)   Subsequently, on or around March 5, 2007, the Agreement was assigned by Five Point to plaintiff Pentech Financial Services, Inc. (“Plaintiff”).  (FAC, ¶ 11, Ex. 2.)

 

Plaintiff alleges that on or around September 1, 2009, Glamour breached and became in default of the Agreement by failing to make timely payments according to the terms of the Agreement. (FAC, ¶ 14.)  Plaintiff also alleges that Glamour and Ms. Koufalls (collectively “Defendants”) failed to make each and every payment due between September 1, 2009 and November 1, 2010.  (FAC, ¶ 48.)  Despite repeated demands for payment, Ms. Koufalls has failed to pay the balance due and owing to Plaintiff under the Agreement.  (FAC, ¶ 23.)   Plaintiff alleges that within the last four years an account was stated in writing between Defendants and Plaintiff wherein it was agreed that Defendants were indebted to Plaintiff for the amount of $19,782.33 plus interest.  (FAC, ¶ 30.)

 

On August 28, 2013, Plaintiff filed the complaint.  Plaintiff later filed the operative first amended complaint (“FAC”) on September 12, 2013, alleging the following causes of action: (1) breach of written agreement; (2) breach of written guaranty; (3) account stated; (4) unjust enrichment; (5) claim and delivery; (6) restraining order; and (7) breach of installment contract.

 

Defendants move for judgment on the pleadings as to the entire FAC, arguing that the causes of action are barred by the statute of limitations (Mem. Ps & As., p. 21-22), and Plaintiff “filed this action in the wrong jurisdiction.” (Mem. Ps & As., p. 9:10-11 [emphasis omitted].)

 

Defendants’ request for judicial notice is GRANTED as to the existence of the documents specifically listed in the request for judicial notice, but only and solely as to the documents’ existence and not as to the truth of any statements, allegations, or facts asserted therein.  (See Evid. Code § 452, subd. (d); see also Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7 [a court “may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached–in the documents such as orders, statements of decision, and judgments–but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact”] (emphasis added); see also Bach v. McNelis, supra, at p. 865 [a court can properly take judicial notice of the existence of a document, but can take judicial notice of the truth of the contents of documents only for findings of fact, conclusions of law, orders, and judgments].)

 

Jurisdiction

 

Defendants’ argument that the Court lacks jurisdiction over the case is without merit. To the extent that Defendants intended to argue that the Court does not have personal jurisdiction over them, personal jurisdiction may not properly be raised in a JOP motion.  (See Code Civ. Proc. §438, subd. (c)(1)(B).)  Moreover, Defendants consented to this Court’s personal jurisdiction over them as they made a general appearance by filing an answer and the instant motion. (See Code Civ. Proc., § 410.30, subd. (b); see also People v. Ciancio (2003) 109 Cal.App.4th 175, 192–193.)  In addition, while the issue of subject matter jurisdiction may be raised in a JOP motion, UCC section 2A-106 has no bearing on this Court’s jurisdiction because the Agreement between Plaintiff and Defendants was not a consumer lease. (See UCC §§ 2A-106, subds. (1) and (2), and 10103, subd. (5) [a “consumer lease” means a lease that a lessor regularly engaged in the business of leasing or selling makes to a lessee who is an individual and who takes under the lease primarily for a personal, family, or household purpose]; see also C9 Ventures v. SVC-West, L.P. (2012) 202 Cal. App. 4th 1483, 1495-1496.)

 

The motion for judgment based on lack of jurisdiction is DENIED.

 

First through Third Causes of Action

 

Defendants JOP motion is GRANTED as to Plaintiff’s causes of action for breach of written agreement, breach of written guaranty, and account stated, without leave to amend. Defendants argue that UCC section 2A-506 or, in the alternative, Code of Civil Procedure section 377 provide the applicable statute of limitations for Plaintiff’s causes of action. Plaintiff does not indicate in its moving papers which statute it believes applies. Under both the UCC section 2A-506 and/or Code of Civil Procedure section 377 the statute of limitations for Plaintiff’s first through third causes of action is 4 years. (See Code Civ. Proc., § 337, subd., (1) and (2) [an action upon any contract, obligation or liability founded upon an instrument in writing or an action to recover an account stated based upon an must be made within 4 years]; see also UCC, § 2A-506, subd. (1) [an action for default under a lease contract, including breach of warranty or indemnity, must be commenced within 4 years after the cause of action accrued].)

 

Plaintiff’s complaint was filed on August 28, 2013. The FAC alleges that Defendants’ breached and became in default by failing to make timely payments according to the terms of the Agreement on or around September 1, 2009.  (FAC, ¶¶ 14, 48.)   However, Plaintiff concedes in its opposition papers that the date of Defendants’ last payment was April 1, 2009. (See Opp’n.,  p. 2:5-6.) Thus, the breach occurred on May 1, 2009 when Defendants’ next payment under the Agreement was due. (See Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 221 [the statute of limitations on a claim for breach of contract commences to run at the time of the breach].) Because Plaintiff’s complaint was not filed within 4 years of May 1, 2009, the third causes of action for breach of written agreement, breach of written guaranty, and account stated are time-barred.

 

Seventh Cause of Action

 

Defendant’ JOP motion is DENIED as to Plaintiff’s seventh cause of action for breach of installment contract. When a contract is severable, the duty to perform each part arises independently and the statute begins to run on the severable obligations from the time the performance of each is due. (See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 520, p. 665; see also White v. Moriarty (1993) 15 Cal.App.4th 1290, 1299 [promissory note]; Tillson v. Peters (1940) 41 Cal.App.2d 671, 674 [rent due under lease]; Trigg v. Arnott (1937) 22 Cal.App.2d 455, 459 [installment note].)  In the FAC, Plaintiff alleges that the Agreement constituted an installment contract in which Defendants agreed to pay 48 monthly rental installments of $1,319.05 each, starting on January 1, 2007 and continuing until November 1, 2010. (FAC, ¶ 45.) Plaintiff further alleges that Defendants failed to pay each and every monthly rental installment due between September 1, 2009 and November 1, 2010. (FAC, ¶ 47.) However, as indicated above, Plaintiff concedes in its opposition papers that the date of Defendants’ last payment was April 1, 2009. (See Opp’n., p. 2:5-6.)  While the monthly payments that were due prior to the four years immediately preceding the filing dated of the complaint, August 28, 2013, are time-barred, Plaintiff has alleged sufficient facts to establish that the unpaid monthly rental payments that came due between September 1, 2009 and November 1, 2010 are not barred by the 4-year statute of limitations under UCC section 2A-506 and/or Code of Civil Procedure section 377.

 

Fourth through Sixth “Causes of Action”

 

Furthermore, the applicable statute of limitations would not bar Plaintiff’s “claims” pertaining to unjust enrichment, claim and delivery, and restraining order, because unjust enrichment, claim and delivery, and restraining order are not causes of action.  (See Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal. App. 4th 1261, 1271 [claim and delivery is a remedy by which a party with a superior right to a specific item of personal property may recover possession of that specific property before judgment]; McBride v. Boughton (2004) 123 Cal. App. 4th 379, 387 [unjust enrichment is not a cause of action, but rather a general principle, underlying various legal doctrines and remedies and is synonymous with restitution]; Thomas v. Quintero (2005) 126 Cal. App. 4th 635, 652 [a request for a restraining order is not a cause of action].)  Accordingly, the motion is DENIED as to Plaintiff’s fourth through sixth “causes of action.”