Case No.: 1-13-CV-255917

The following motions are presently before the court: (1) Motion to Quash Service of Summons by Defendants Uduak Oduok (“Uduak”), Unwam Oduok (“Unwam”), and Unwam Law Office (“Law Office”) to the First Amended Complaint (“FAC”) of Plaintiff YP Advertising, L.P., fka AT&T Advertising, L.P. (“Plaintiff”); and (2) Demurrer to the FAC by Defendant Ebitu Law Group, P.C. (“ELG”)

Procedural Violation

As a preliminary matter, Plaintiff filed untimely oppositions to the motions. Code of Civil Procedure section 1005, subdivision (b) requires all opposing papers to be filed and served at least nine court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing. (California Rules of Court, rule 3.1300(d).) If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate. (Ibid.)

Here, defendants filed their motions on February 28, 2014. The hearing on the motions is scheduled for April 10, 2014. Thus, Plaintiff must file its opposition papers no later than March 27, 2014 to be considered timely. Plaintiff did not file its opposition papers until March 28, 2014 in violation of court rules. However, there appears to be no prejudice as the oppositions were timely served by regular mail on March 27, 2014. Furthermore, defendants were still able to timely file and serve their reply papers to the motions. Therefore, despite this procedural violation, the court will address the merits of the oppositions.

Request for Judicial Notice

Defendants’ request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d), (h).)

Motion to Quash Service of Summons

Defendants Uduak, Unwam, and Law Office move to quash service of summons because Plaintiff attempted improper service on them and thus there is no personal jurisdiction. The court refers to these defendants by their first name for purposes of clarity and not out of disrespect.

“Service of process is the means by which a court having jurisdiction over the subject matter asserts its jurisdiction over the party and brings home to him reasonable notice of the action. It is an indispensable element of due process of law.” (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1464 [internal citations omitted].) “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove…the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

With respect to defendant Uduak, Plaintiff submits a proof of service filed on March 17, 2014 showing that she was personally served on February 18, 2014. (See Declaration of Lynne Bentley at Exhibit A.) It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) Furthermore, Uduak admits in her declaration filed in support of the motion that she “took the documents.” (See Declaration of Uduak Oduok at ¶ 5.) If she then threw the documents back in the hallway, that does not show that she was improperly served with the summons and FAC. Thus, based on the undisputed evidence, the court finds that defendant Uduak was personally served in compliance with the code.

With respect to defendant Unwam, Plaintiff argues that she was served via substitute service. “Substitute service on an individual is accomplished by ‘leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address…, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

“An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint cannot with reasonable diligence be personally delivered to the individual defendant. Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as reasonable diligence.” (American Express Centurion Bank v. Zara, supra, 199 Cal.App.4th at p. 389.)

In support, Plaintiff offers a proof of service filed on March 17, 2014 by the process server stating that Unwam was served via substitute service. (See Declaration of Lynne Bentley at Exhibit B.) The proof of service includes a declaration of diligence showing that the process server attempted personal service at Unwam’s alleged business address on February 13th, 14th, and 18th in 2014. (Ibid.) The proof of service also indicates that the business address is 717 K Street, Suite 422, in Sacramento, CA. (Ibid.) In opposition, Plaintiff argues that Unwam practices law at ELG, whose main office is located at this address. (See Plaintiff’s OPP at p. 3.) This contention is supported at least in part by the moving papers which concede that ELG is a proper business address for defendant Unwam. (See Memo of P’s & A’s at p. 6.) Thus, it would be proper for Plaintiff to attempt to serve Unwam with the summons and FAC at this address. (See Corcoran v. Arou (1994) 24 Cal.App.4th 310, 315 [it is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served]; Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417.) Finally, the proof of service shows that the process server mailed copies of the summons and FAC to Unwam on February 27, 2014. (See Declaration of Lynne Bentley at Exhibit B.) Given this evidentiary showing, the court finds that Plaintiff performed valid substitute service on defendant Unwam.

Finally, with respect to defendant Law Office, Plaintiff argues that the entity was served in compliance with Code of Civil Procedure section 415.95. That section states, in relevant part:

A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(Code Civ. Proc., § 415.95, subd. (a).)

In support, Plaintiff submits a proof of service from the process server filed on March 17, 2014. (See Declaration of Lynne Bentley at Exhibit C.) The proof shows that a copy of the summons and FAC were left with defendant Uduak on February 18, 2014 during normal business hours. (Ibid.) The proof of service indicates that Uduak was authorized to accept service of process on behalf of the Law Office and there is no contrary evidence to dispute that claim. (Ibid.) Furthermore, the proof of service shows that the process server mailed the documents by first class mail to 717 K Street, Suite 422, in Sacramento on February 27, 2014. (Ibid.) As stated above, the fact that Uduak allegedly took the documents and threw them back in the hallway is not evidence that the Law Office or any of these defendants were not properly served with the summons and FAC. Thus, the court finds that the Law Office was validly served in compliance with Code of Civil Procedure section 415.95, subdivision (a).

Therefore, the motion to quash service of summons by defendants Uduak, Unwam, and the Law Office is DENIED.

Demurrer to the FAC by Defendant ELG

With respect to the first cause of action for breach of oral contract, defendant ELG makes the following arguments: (1) there are no facts showing a valid contract between Plaintiff and ELG; (2) Plaintiff fails to allege the essential terms of any oral contract; and (3) Plaintiff fails to allege the nature of any breach to support the first cause of action.

“The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, Plaintiff alleges that it entered into an oral contract with ELG and other defendants on February 1, 2012. (See FAC at ¶ 8.) Under the alleged oral agreement, Plaintiff agreed to provide, and ELG agreed to pay for, advertising in the yellow pages. (Ibid.) Plaintiff alleges that ELG and other defendants breached the oral contract when they failed to make payment pursuant to the agreement. (Id. at ¶ 10.) To the extent that ELG wants to know where the oral contract was to be performed or the names of Plaintiff’s employees who entered into the agreement, it can obtain such information via modern discovery devices. (See Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [there is no need to require specificity in the pleadings because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading].) As pled, such allegations are sufficient to state a claim for breach of contract and must be accepted as true on demurrer. (See Olson v. Toy (1996) 46 Cal.App.4th 818, 823.)

Therefore, ELG’s demurrer to the first cause of action on the ground that it fails to state a claim is OVERRULED.

With respect to the second cause of action for breach of written contract, ELG argues that Plaintiff fails to allege facts showing that the parties entered into a written contract. Instead, ELG claims that, based on the documents attached to the FAC, Plaintiff only entered into a written contract with defendant Law Office on February 1, 2012. (See FAC at Exhibit 1.) However, what is important is that the pleading as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. (See Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6.) Here, ELG’s argument ignores other allegations in the second cause of action which indicate that Plaintiff entered into written contracts with defendants on February 1, 2012 and various dates thereafter. (Id. at ¶ 12; see Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856, fn. 14 [a general demurrer does not lie as to a portion of a cause of action].) For example, the documents attached as Exhibit 1 to the FAC, include a written contract entered into between Plaintiff and ELG on January 11, 2013. (See FAC at Exhibit 1.) Such a document is consistent with allegations of the FAC and must be accepted as true on demurrer.

Accordingly, ELG’s demurrer to the second cause of action on the ground that it fails to state a claim is OVERRULED.

With respect to the third and fourth causes of action, Plaintiff has alleged common counts for account stated and open book account. “A common count is not a specific cause of action, however; rather, 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. 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.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [citations omitted].)

Here, the common counts are based on the same underlying facts as the breach of contract claims. Since the breach of contract claims survive on demurrer, the common counts should also proceed in the case.

Therefore, ELG’s demurrer to the third and fourth causes of action on the ground that they fail to state a claim is OVERRULED.

With respect to the fifth cause of action for quantum meruit, ELG argues that there is no recovery for quantum meruit because Plaintiff is seeking relief based on the express terms of a contract. (See Hedging Concepts v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419 [it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation]; see also Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1393 [there can be no implied contractual term completely at variance with an express term of a contract].) However, courts have historically permitted plaintiffs to plead alternative counts in a complaint, a point which is not raised in Hedging Concepts or Wagner, the authorities cited by ELG. (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [when a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations]; Crowley v. Katleman (1994) 8 Cal.4th 666, 690-691 [factually and legally inconsistent theories allowed].) Also, if ELG later raises a defense that the subject agreement is void or unenforceable for some reason and proves the same, Plaintiff should be allowed to proceed on an alternate theory of quantum meruit recovery. To hold otherwise would force Plaintiff to choose its remedy at the pleading stage which is contrary to established precedent.

Accordingly, ELG’s demurrer to the fifth cause of action on the ground that it fails to state a claim is OVERRULED.