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This case was last updated from Los Angeles County Superior Courts on 09/02/2020 at 03:28:59 (UTC).

ALINE THIVIERGE VS LANCE CLAERY

Case Summary

On 01/22/2020 ALINE THIVIERGE filed a Contract - Other Contract lawsuit against LANCE CLAERY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0657

  • Filing Date:

    01/22/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

THIVIERGE ALINE

Defendant

CLAERY LANCE

Attorney/Law Firm Details

Defendant Attorney

MEDILL FREDERICK

 

Court Documents

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 08/31/2020

8/31/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 08/31/2020

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

8/31/2020: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

6/16/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/16/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

3/16/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

2/18/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Proof of Service by Mail - Proof of Service by Mail

2/21/2020: Proof of Service by Mail - Proof of Service by Mail

Proof of Personal Service - Proof of Personal Service

1/31/2020: Proof of Personal Service - Proof of Personal Service

Summons - Summons on Complaint

1/23/2020: Summons - Summons on Complaint

Complaint - Complaint

1/22/2020: Complaint - Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

1/22/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

1/22/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

1/22/2020: First Amended Standing Order - First Amended Standing Order

1 More Documents Available

 

Docket Entries

  • 01/25/2023
  • Hearing01/25/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 07/21/2021
  • Hearing07/21/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 08/31/2020
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 08/31/2020
  • DocketCertificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 08/31/2020; Filed by: Clerk

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  • 08/31/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 08/31/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Taken Off Calendar by Court on 08/31/2020

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  • 06/16/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 06/16/2020
  • DocketReset - Court Unavailable, Hearing on Demurrer - without Motion to Strike scheduled for 07/21/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 08/31/2020 10:30 AM

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  • 04/16/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 04/16/2020
  • DocketReset - Court Unavailable, Hearing on Demurrer - without Motion to Strike scheduled for 05/12/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 07/21/2020 10:30 AM

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  • 03/16/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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3 More Docket Entries
  • 02/18/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 03/17/2020 at 10:30 AM in Spring Street Courthouse at Department 26

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  • 01/31/2020
  • DocketProof of Personal Service; Filed by: Aline Thivierge (Plaintiff); As to: Lance Claery (Defendant); Service Date: 01/23/20; Service Cost: 50.00; Service Cost Waived: No

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  • 01/23/2020
  • DocketSummons on Complaint; Filed by: Aline Thivierge (Plaintiff)

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  • 01/22/2020
  • DocketComplaint; Filed by: Aline Thivierge (Plaintiff); As to: Lance Claery (Defendant)

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  • 01/22/2020
  • DocketCivil Case Cover Sheet; Filed by: Aline Thivierge (Plaintiff)

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  • 01/22/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 01/22/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 01/22/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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  • 01/22/2020
  • DocketNon-Jury Trial scheduled for 07/21/2021 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 01/22/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/25/2023 at 08:30 AM in Spring Street Courthouse at Department 26

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Tentative Rulings

Case Number: 20STLC00657    Hearing Date: January 19, 2021    Dept: 26

Thivierge v. Claery, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Lance Claery’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On January 22, 2020, Plaintiff Avril Thivierge (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Lance Claery (“Defendant”). The Complaint alleges that Defendant failed to pay her in accordance with their “Family and Nanny Agreement.” (Compl., ¶¶BC-1, BC-2 and CC-1.) On February 18, 2020, Defendant filed the instant Demurrer to the Complaint. The Demurrer was initially scheduled for March 17, 2020 but continued prior to hearing to August 31, 2020.

When neither party appeared for the hearing on August 31, 2020, the Court placed the Demurrer off calendar. On October 5, 2020, Defendant refiled the Demurrer. To date, no opposition has been filed.

Discussion

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Medeill Decl., ¶¶3-4.) In demurring to the Complaint, Defendant contends that the Complaint fails to allege sufficient facts to state a cause of action for breach of contract, is uncertain, and it cannot be ascertained whether the subject contract is written, oral or implied. (Citing Code Civ. Proc., § 430.10, subds. (e), (f) and (g).)

As an initial matter, the Court will not rule on the demurrers for uncertainty and failure to allege whether the subject contract is written, oral or implied. Special demurrers are not permitted in a court of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).)

Regarding the demurrer for failure to allege facts sufficient to state a cause of action, Plaintiff must plead the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) The Complaint alleges that she had a Family and Nanny Agreement with Defendant pursuant to which she would be provided severance pay and a letter of recommendation. (Compl., ¶¶BC-1, BC-2 and CC-1.) Defendant allegedly breached the Agreement by failing to provide the severance pay and letter of recommendation as agreement. (Ibid.) However, Defendant is correct to point out that Plaintiff has not alleged breach in accordance with the terms of the Agreement. The Agreement states that severance pay will be provided “if the family must terminate the Nanny’s employment unexpectedly and without cause.” (Id. at Exh. A at § V.) But there is no allegation that Plaintiff’s employment was terminated unexpectedly and without cause. (Id. at ¶¶BC-1, BC-2 and CC-1.)

Also, as to the allegation that Defendant breached the Agreement by failing to provide a letter of recommendation, no part of the written Agreement states that such a letter will be provided in exchange for Plaintiff’s services. (Id. at Exh. A.) Rather, Plaintiff attaches a message she sent to Defendant reiterating an oral conversation they had at the termination of the Agreement. (Id. at Exh. I.) Defendant apparently agreed to provide a letter of recommendation if Plaintiff would “peacefully leave [his] house.” (Ibid.) This does not appear to allege the existence of a contract as Plaintiff’s agreement to peacefully leave the house is not good consideration. (Civ. Code, § 1605 [“Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.”].) Plaintiff, therefore, has not alleged the existence of a contract pursuant to which she is entitled a letter of recommendation.

Based on the foregoing, the Court finds that the elements of a breach of contract cause of action have not been adequately alleged. Defendant Lance Claery’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

Case Number: 20STLC00657    Hearing Date: August 31, 2020    Dept: 26

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Lance Claery’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On January 22, 2020, Plaintiff Avril Thivierge (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Lance Claery (“Defendant”). The Complaint alleges that Defendant failed to pay her in accordance with their “Family and Nanny Agreement.” (Compl., ¶¶BC-1, BC-2 and CC-1.) On February 18, 2020, Defendant filed the instant Demurrer to the Complaint. The Demurrer was initially scheduled for March 17, 2020 but continued prior to hearing to August 31, 2020.

To date, no opposition has been filed.

Discussion

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Medeill Decl., ¶¶3-4.) In demurring to the Complaint, Defendant contends that the Complaint fails to allege sufficient facts to state a cause of action for breach of contract, is uncertain, and it cannot be ascertained whether the subject contract is written, oral or implied. (Citing Code Civ. Proc., § 430.10, subds. (e), (f) and (g).)

As an initial matter, the Court will not rule on the demurrers for uncertainty and failure to allege whether the subject contract is written, oral or implied because special demurrers are not permitted in a court of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).)

Regarding the demurrer for failure to allege facts sufficient to state a cause of action, Plaintiff must plead the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) The Complaint alleges that she had a Family and Nanny Agreement with Defendant pursuant to which she would be provided severance pay and a letter of recommendation. (Compl., ¶¶BC-1, BC-2 and CC-1.) Defendant allegedly breached the Agreement by failing to provide the severance pay and letter of recommendation as agreement. (Ibid.) However, Defendant is correct to point out that Plaintiff has not alleged breach in accordance with the terms of the Agreement. The Agreement states that severance pay will be provided “if the family must terminate the Nanny’s employment unexpectedly and without cause.” (Id. at Exh. A at § V.) But there is no allegation that Plaintiff’s employment was terminated unexpectedly and without cause. (Id. at ¶¶BC-1, BC-2 and CC-1.)

Also, as to the allegation that Defendant breached the Agreement by failing to provide a letter of recommendation, no part of the written Agreement states that such a letter will be provided in exchange for Plaintiff’s services. (Id. at Exh. A.) Rather, Plaintiff attaches a message she sent to Defendant reiterating an oral conversation they had at the termination of the Agreement. (Id. at Exh. I.) Defendant apparently agreed to provide a letter of recommendation if Plaintiff would “peacefully leave [his] house.” (Ibid.) This does not appear to allege the existence of a contract as Plaintiff’s agreement to peacefully leave the house is not good consideration. (Civ. Code, § 1605 [“Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.”].) Plaintiff, therefore, has not alleged the existence of a contract pursuant to which she is entitled a letter of recommendation.

Based on the foregoing, the Court finds that the elements of a breach of contract cause of action have not been adequately alleged. Defendant Lance Claery’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

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