Case Name: Claudia Leon v. Gabriel Guzman, et al.

Case No.: 1-13-CV-249307

Demurrer by Cross-Defendant Claudia Leon to the Cross-Complaint of

Plaintiff’s first amended complaint alleges Defendants Gabriel Guzman and Luis Guzman, individually and dba Angel’s Painting, engaged in various Labor Code violations and sexual harassment, as follows:

(1) Failure to Pay All Wages Owed
(2) Waiting Time Penalties
(3) Failure to Provide Compliant Wage Stubs
(4) Unfair Competition
(5) Sexual Harassment – Quid Pro Quo
(6) Sexual Harassment – Hostile Environment
(7) Retaliation
(8) Failure to Prevent Harassment
(9) Negligence
(10) Wrongful Termination in Violation of Public Policy
(11) Sexual Battery

On November 5, 2014, the court issued an order granting Defendants’ motion for leave to file a cross-complaint. On November 20, 2014, Defendants and Luz Guzman (“Cross-complainants”) filed a cross-complaint against Plaintiff Leon and Ricardo Montano (“Cross-defendants”). The cross-complaint alleges that on or about June 18, 2012, Luis Guzman entered into an oral contract with Cross-defendants to sell his 2012 GMC truck for $28,000 to be paid monthly at the rate of $1,000 until paid in full. (Cross-Complaint, ¶8.) Cross-defendants paid $20,000 through July 2013, but made no more payments thereafter. (Cross-Complaint, ¶9.)

Luiz Guzman further alleges that Cross-defendants became indebted to him for money lent in the amount of $8,000 and have not paid. (Cross-Complaint, ¶¶14 – 15.)

In the months prior to May 1, 2013, Plaintiff planted listening and recording devices on Cross-complainants’ persons, in their home, telephones, and other places which enabled Plaintiff to record private conversations with each of the Cross-complainants. (Cross-Complaint, ¶17.) Plaintiff surreptitiously recorded private conversations and private activities with Cross-complainants without knowledge or permission. (Id.)

The cross-complaint asserts causes of action for:

(1) Breach of Contract
(2) Money Lent
(3) Invasion of Privacy
(4) Violation of Penal Code Section 632

On December 24, 2014, Plaintiff Leon filed the motion now before the court: a demurrer to the cross-complaint.

DISCUSSION

I. The demurrer to the first cause of action for breach of contract is OVERRULED.

“The statement of a cause of action for breach of contract requires a pleading of (a) the contract; (b) plaintiff’s performance or excuse for nonperformance; (c) defendant’s breach; and (d) damage to plaintiff.” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §482, p. 574; see also Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

Leon contends the first cause of action fails to state a cause of action for breach of contract because “the monthly payment was not part of the oral contract.” Leon’s argument is in direct contradiction to the allegations which state, in relevant part, that Leon agreed “to pay Luis [Guzman] the sum of $28,000. Said sum to be paid monthly at the rate of $1,000.00 per month until paid in full.” “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.)

Accordingly, the demurrer to the first cause of action in the cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of contract is OVERRULED.

II. The demurrer to the second cause of action for money lent is OVERRULED.

“A common count alleges in substance that the defendant became indebted to the plaintiff in a certain stated sum, for some consideration such as “money had and received by the defendant for the use of the plaintiff [;]” and that no part of the sum has been paid.” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §518, p. 608.) “The only essential allegations 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.’ [Citation.]” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

“If the common count appears to be based on the same cause of action as the specific count, and the specific count is defective, the entire complaint is demurrable.” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §515, p. 605.) “It is the established law of California that, if plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the same set of facts specifically pleaded in the other count.” (Id. citing Hays v. Temple (1937) 23 Cal.App.2d 690, 695.)

Leon contends the second cause of action fails because it is premised upon the same facts as the first cause of action. Presumably, Leon’s argument is based on the allegation in the first cause of action that Leon and Montano paid $20,000 of the $28,000 they agreed to pay for the 2012 GMC truck and the allegation in the second cause of action that Leon and Montano became indebted to Luis Guzman for money lent in the amount of $8,000.

Even if the $8,000 allegedly owed in the second cause of action is the same as the amount owed on the first cause of action, Leon fails to demonstrate how the first cause of action is defective. Accordingly, the demurrer to the second cause of action in the cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for [common count] money lent is OVERRULED.

III. The demurrer to the third and fourth causes of action for invasion of privacy/ violation of Penal Code section 632 is OVERRULED.

Leon demurs to the third and fourth causes of action on the ground that they are uncertain because Cross-complainants do not identify which is asserting these causes of action. While this would be clearer had cross-complainants complied with California Rules of Court, rule 2.112, the cross-complaint is sufficiently clear that all cross-complainants (Gabriel Guzman, Luis Guzman, and Luz Guzman) are asserting the third and fourth causes of action. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Leon argues further that the third and fourth causes of action are uncertain because it is “vague as to where LEON allegedly made these recordings,” “whose privacy was invaded,” and “when that privacy was invaded.” Leon fails to cite any authority requiring such specifics to be necessary to plead claims for invasion of privacy and violation of Penal Code section 632. Accordingly, the demurrer to the third and fourth causes of action in the cross-complaint on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.