2016-00199619-CU-BC

Prestige Carrier Inc. vs. Vitek Transportation, LLC

Nature of Proceeding: Hearing on Demurrer Amended Cross Complaint

Filed By: Kvichko, Yuri

Cross-Defendant Dmitriy Kitsen’s (“Dmitriy”) demurrer to Cross-Complainant Vitek, Inc.’s first amended cross-complaint (“FACC”) is overruled.

The Court reluctantly considered Vitek’s opposition filed and served only seven Court days prior to the hearing. Relevant to the determination to consider the late-filed papers, Dmitriy was able to file a reply.

Plaintiff Prestige Carrier filed the complaint against Vitek on September 14, 2016 alleging causes of action against Vitek in connection with Vitek’s handling of Prestige’s truck. Vitek filed a cross-complaint on a Judicial Council Form on October 14, 2016 alleging causes of action for declaratory relief, breach of contract for failure to pay repair invoices, breach of contract for failure to pay pursuant to rental space agreements and a common count. Dmitriy was added to the cross-complaint by way of Doe Amendment on January 29, 2018.

Dmitriy’s demurrer to the cross-complaint was unopposed and sustained with leave to amend on October 22, 2018 on the basis that there were no allegations that Dmitriy “entered into any written, oral, or implied contract with Vitek. The only allegation as to [Dmitriy], as [Dmitriy] notes, is the general allegation that as a Doe, he was acting as an agent or employee of Prestige.” (ROA 86). Dmitriy now demurs to the FACC which is also on the Judicial Council Form. Dmitriy is named in the first cause of action for breach of contract, fifth cause of action for common counts and sixth cause of action for declaratory relief.

Dmitriy first argues that the causes of action are barred by the two year statute of limitations in CCP § 339 because the allegations reflect an oral contract which was allegedly breached in April 2015. With respect to the first cause of action, Vitek alleges that it entered into an agreement with Dmitriy and the other cross-defendants Anatoliy Kitsen and Prestige Carrier. Vitek checked the boxes on the Judicial Council form indicating that the contract was written, oral and other (repair invoices). (FACC ¶ BC-1(a).) Dmitriy argues that the contract is essentially an oral contract because the only writing attached to the FACC is an invoice which does not contain evidence regarding specific terms or showing a meeting of the minds. Dmitriy relies upon California Employment Stabilization Com. v. Matcovich (1946) 74 Cal.App.2d 398, 401 -402. That case involved the question of the sufficiency of the evidence supporting a judgment after a trial and did not involve a pleading motion. The Court there stated after reviewing the evidence that the “terms agreed upon were apparently arrived at orally; and therefore the contract was in legal effect an oral contract.” (Id.) But here,

Vitek has alleged that the contract between the parties was written and/or oral. The fact that the invoice may not show all the terms is not dispositive and Vitek was not required to provide evidence showing specific terms at the pleading stage.

In order to plead a breach of contract, the plaintiff/cross-complainant must attach a copy of the agreement, set forth the material terms verbatim or plead the legal effect of the agreement. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199.) The essential elements to be pleaded in an action for breach of contract are (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting harm to the plaintiff. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1388.) Here, even if the invoice did not constitute the written contract and/or set forth the essential terms, Vitek alleged that Dmitriy and the other cross-defendants sought repair and maintenance of Truck 44 with Vitek and that Vitek performed the repairs and that Cross-Defendants did not pay. (FACC ¶ BC-1(a).) Thus Vitek alleged the essential terms of the contract which it alleged was written and/or in the alternative oral.

Given the allegations that the contract was written, the two year statute governing oral contracts does not apply. Instead, the four year statute in CCP § 337 applies and even using the April 2015 date, the statute has not run. The fact that Vitek pled that the contract was also oral does not change the result as a party is allowed to plead in the alternative. “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.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) Plaintiff is allowed at the pleading stage to allege both a breach of written contract and alternatively a breach of implied in fact contract based on the same facts.

In any event, even if the two year statue applied to the first cause of action for breach of contract, or any other cause of action, the statute of limitations defect does not appear on the face of the FACC. To that end, in the original cross-complaint filed in October 2016 Vitek designated numerous Doe Defendants and generally alleged that “Cross-Defendants” breached the subject contracts. (Vitek’s RJN Exh. A.) Liberally construed, the original cross-complaint therefore contained charging allegations against the Doe defendants and thus relates back pursuant to CCP 474. “A plaintiff ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a Doe Defendant, and that time limit prescribed by the applicable statute of limitations is extended to the unknown defendant.” (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946.) “[I]t is settled that a defendant sued by a fictitious name and later brought into the case by an amendment substituting his true name is considered a party to the action from its commencement for purposes of the statute of limitations.” (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 602.) Saliently, the original cross-complaint was filed within any applicable two year statute of limitations considering the earliest alleged breach in April 2015. Dmitriy was added as Doe 1 on January 26, 2018. The allegations in the FACC relate back to the original cross-complaint and are not barred by the two year statute of limitations in CCP § 339 even if that section applied. Parenthetically, the filing of a complaint may toll the statute of limitations as to a compulsory cross-complaint. (Trindale v. Superior Court (1973) 29 Cal.App.3d 857, 859-860.) However, this argument is not developed by the parties.

Dmitiry attempts to argue that there can be no relation back because it was only in the FACC that any actual allegations were made against him and that the original cross-complaint only named him as a Doe acting within the scope of his agency of the other cross-defendants. He cites to Williams v. Goldman (1963) 214 Cal.App.2d 856, 861 for the proposition that there is no relation back where there was no attempt to allege any cause of action against a defendant designated by a fictitious name in the original pleading. But that case dealt with the scenario “where there was absolutely no attempt by the pleader to assert a claim against the fictitiously named defendants.” ( Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88.) But here, as discussed above, liberally construing the original complaint, Vitek made an attempt to do so by designating Does and then generally alleging that “Cross-Defendants” were responsible for the breaches. The FACC relates back to the filing of the original cross -complaint as to Dmitiry, and this is true even if some of the legal theories may have changed as recovery in the FACC is based on the same set of general facts at the cross-complaint. “A defendant unaware of the suit against him by a fictitious name is in no worse position if, in addition to substituting his true name, the amendment makes other changes in the allegations on the basis of the same general set of facts.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 602.)

Dmitiry argues in reply that Vitek was never truly ignorant of his identity and has always known who he was. “[A] plaintiff is entitled to the benefits of section 474 unless substantial evidence shows she was not ignorant of the facts she needed to know. ( General Motors Corp. v. Superior Court (1996) 48 CaI.App.4th 580, 595. (emphasis added).) That Plaintiff could have theoretically determined Defendant’s identify from information that was available or was potentially available is irrelevant. And, the fact that plaintiff had the means of ascertaining the facts earlier was not a bar to the application of section 474. (Breceda v. Gamsby, (1968) 267 Cal. App. 2d 167, 174; citing to Garrett v. Crown Coach Corp. (1968) 259 Cal. App. 2d 647.) Even if Vitek was aware of Dmitriy’s identity, it must also have been aware of facts giving rise to a cause of action against him. To prove the ignorance requirement, a plaintiff must be ignorant of the defendant’s identity, as well as the facts giving rise to the cause of action against that defendant. (Id. at 594; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) “Ignorance of the facts giving rise to a cause of action is the ‘ignorance’ required by section 474, and the pivotal question is, ‘did plaintiff know facts?’ not “did plaintiff know or believe that [he] had a cause of action based on those facts.’” ( General Motors Corp., supra, 48 Cal.App.4th at 594.) That determination cannot be made on demurrer.

The above analysis applies equally to the fourth cause of action for common count-quantum meruit and fifth cause of action for declaratory relief which are all based on the same set of facts. The statute of limitations bar with respect to any of these causes of action does not appear on the face of the FACC. The Court would further note that 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,

The Court notes that Dmitiry makes various arguments about Vitek not being to avoid the two year statute of limitations in CCP § 339 with respect to the fourth cause of action for common count by alleging an open book account because an open book account has not been sufficiently alleged. This argument is irrelevant because the fourth cause of action is not for open book account.

As a result, the demurrer to the first, fourth and fifth causes of action on the basis that they are barred by the statute of limitations, is overruled.

Finally, Dmitiry argues that it cannot be ascertained from the FACC whether the subject contract is written, oral, or implied by conduct. (CCP § 430.10(g).) The demurrer on this basis is overruled. As discussed above, the FACC checked the boxes on the form complaint indicating that the contract was written, oral, and/or other. This was sufficient and as further set forth above, Vitek was allowed to plead in the alternative.

The demurrer is overruled in its entirety.

No later than January 24, 2019, Cross-Defendant shall file and serve his answer to the first amended cross-complaint.

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.