Case Number: KC067182 Hearing Date: February 17, 2015 Dept: O
Chang v. Lin-Chih Corporation (KC067182)

Defendant Lin-Chih Corporation’s DEMURRER TO FIRST AMENDED COMPLAINT

Respondent: Plaintiff Chang

TENTATIVE RULING

Defendant Lin-Chih Corporation’s demurrer to first amended complaint is OVERRULED. Defendant is ordered to file and serve its Answer within 10 days.

1st CAUSE OF ACTION: BREACH OF CONTRACT:
The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct. (CCP 430.10(g).) In order to plead a written contract (the first element listed above), a plaintiff must, in addition to alleging the making of the contract, do one of the following: (1) set forth the contract in haec verba; or (2) plead the contract’s legal effect by alleging the substance of its relevant terms. (4 Witkin, California Procedure 4th Edition, ¿¿479-481.) In order to plead an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms. (Id., at 483.)

Par. 6 alleges that Defendant and Plaintiff entered into an oral agreement in or about September 2011. Plaintiff agreed to perform real estate brokerage services in connection with the lease of the premises, and Defendant agreed to pay Plaintiff the reasonable valued of such services in the form of commissions based upon a percentage of the basic rent under the lease. Par. 7 alleges that on 9/15/11, Plaintiff and Defendant confirmed the oral agreement in writing per emails signed by Richard Sun. Par. 8 alleges that on 1/31/12, Plaintiff and Defendant entered into a written Agreement confirming and ratifying the prior oral and written agreements.

Defendant contends the final written agreement lacks consideration because it was entered into after the tenant signed the lease. However, Defendant ignores Pars. 6-8, which specifically allege that an oral and written agreement was entered into before execution of the final written agreement. Demurrer is OVERRULED.

2ND – 4th CAUSES OF ACTION: COMMON COUNT, SERVICES RENDERED, and ANTICIPATORY BREACH OF CONTRACT:
Defendant contends that the claims are barred by the Statute of Frauds. (CC 1624(a)(4) – The following contracts are invalid… unless… in writing… An agreement authorizing or employing an agent, broker… where the lease is for a longer period than one year, for compensation or a commission.”)

However, “an oral agreement may be taken out of the operation of the statute of frauds, Cal. Civ. Code § 1624, by a written memorandum executed subsequently, even though the agreement has already been performed by one party. An oral agreement, within the statute of frauds, may be satisfactorily evidenced, by a subsequent writing, notwithstanding the fact that the agreement has already been executed by one party. That is the rule, even if the statute were viewed as affecting the substantive validity of the contract. The subsequent written contract relates back to the making of the oral agreement which it embodies, so as to validate the latter under the statute of frauds. This is true, whether the written contract be viewed as merely furnishing the requisite evidence of an oral agreement otherwise valid, or as a confirmation and ratification of a previously invalid agreement.” (Ayoob v. Ayoob (1946) 74 Cal.App.2d 236, 242.)

Demurrer is OVERRULED.