2015-00180773-CU-CL

American Express Bank vs. Elizabeth Ung

Nature of Proceeding: Hearing on Demurrer

Filed By: Greene, Kristin A.

Defendant Victor Ung’s Demurrer to Plaintiff American Express Bank’s First Amended Complaint is SUSTAINED, in part and OVERRULED in part, with leave to amend.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the Sacramento Superior Court are available on the Court’s website at Counsel for moving party is ordered to notify opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

This motion was continued from Dec. 11, 2017 for the parties to meet and confer. The Court has received the moving counsel’s further declaration and finds that it satisfies C.C.P., sec. 430.41.

Plaintiff’s First Amended Complaint (“FAC”) sets forth two causes of action: the 1st for common counts (open book account and account stated) and the 2nd for quantum meruit against both defendants Elizabeth Ung and Victor Ung, based upon a credit card account in Elizabeth Ung’s name on which Victor Ung was added as an Additional Cardmember. Plaintiff seeks recovery of the unpaid sum of $222,779.55.

Demurrer to the 1st for common counts (open book account and account stated) is OVERRULED.

Defendant demurs on the grounds that the cause of action fails to state facts sufficient to constitute a cause of action. Specifically defendant asserts that plaintiff has neither attached a copy of the contract nor alleged the relevant terms.

In opposition, plaintiff points out that no cause of action for breach of contract has been alleged, therefore a copy of the contract is not a prerequisite.

The elements of an open book account require that plaintiff prove all of the following:

(1) That plaintiff and defendant had a financial transaction; (2) That plaintiff kept an account of the debits and credits involved in the transactions; (3) That defendant owes plaintiff money on the account; and (4) The amount of money that defendant owes plaintiff. CACI 372

The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due. (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.)

The Court finds that each of these elements have been adequately alleged as to Victor Ung. Moreover, in California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460.

Statute of limitations – OVERRULED.

Defendant further demurs on the grounds that the two year statute of limitations has run for an action upon a contract, obligation or liability not founded upon an instrument of writing. (Code Civ. Proc., § 339.). The alleged breach occurred in Nov. 2014, while Victor Ung was only added to the FAC in August 2017.

In opposition, plaintiff asserts that the addition of a Doe defendant relates back to the date of the filing of the original complaint.

However, plaintiff must have been ignorant of the identity of the Doe defendant. C.C.P., sec. 474. In order to claim the benefits of section 474, plaintiff’s ignorance of defendant’s true name must be genuine and not feigned. (Streicher v. Tommy’s Elec. Co. (1985) 164 Cal.App.3d 876, 882.)

Ignorance of the facts is the critical issue. The pivotal question in this regard is did plaintiff know facts, but this is for factual determination, where it is not patent on the face of the complaint. What Plaintiff did or did not know at the time the original

Complaint was filed is a factual one that is not appropriate for resolution on demurrer. See, e.g. Von Gibson v. Estate of Lynch (1988) 197 Cal.App.3d 725 [issue of genuine ignorance resolved on summary judgment].

Demurrer to the 2nd for quantum meruit is SUSTAINED, with leave to amend.

To recover in quantum meruit, a party need not prove the existence of a contract, but it must show the circumstances were such that “the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made. The burden is on the person making the quantum meruit claim to show the value of his or her services and that they were rendered at the request of the person to be charged.” (Strong v. Beydoun (2008) 166 Cal.App.4th 1398, 1404; Advanced Choices, Inc. v. Dep’t of Health Servs.(2010) 182 Cal. App. 4th 1661, 1673.)

Here, Plaintiff has alleged that the Additional credit card for Victor Ung was issued at the request of Elizabeth Ung. (FAC ¶ 7) Plaintiff has failed to state facts sufficient to constitute a cause of action.

Plaintiff shall file and serve its Second Amended Complaint not later than Monday, Jan. 29, 2018. The responsive pleading shall be due filed and served 30 days later (35 days if service is by mail).