This case was last updated from Los Angeles County Superior Courts on 10/06/2021 at 03:23:02 (UTC).

BRENNAN LAW FIRM VS LI INVESTMENTS LLC, ET AL.

Case Summary

On 02/16/2021 BRENNAN LAW FIRM filed a Contract - Other Contract lawsuit against LI INVESTMENTS LLC. This case was filed in Los Angeles County Superior Courts, Not Classified By Court located in Los Angeles, California. The Judges overseeing this case are CURTIS A. KIN and DAVID A. ROSEN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0214

  • Filing Date:

    02/16/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Not Classified By Court

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CURTIS A. KIN

DAVID A. ROSEN

 

Party Details

Plaintiff

BRENNAN LAW FIRM

Defendants

ARCHWAYS REAL ESTATE SERVICES INC. DBA ARCHWAYS PROPERY MANAGEMENT

LI INVESTMENTS LLC

ARCHWAYS REAL ESTATE SERVICES

Attorney/Law Firm Details

Plaintiff Attorney

BRENNAN MICHAEL A.

Defendant Attorney

BREMAN TERESA KATHLEEN

Other Attorneys

FITCH WILLIAM STANLEY

 

Court Documents

Notice of Case Reassignment and Order for Plaintiff to Give Notice

9/22/2021: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice - NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

9/30/2021: Notice - NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Answer

9/30/2021: Answer

Amended Complaint

8/12/2021: Amended Complaint

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...)

8/13/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...)

Case Management Statement

7/28/2021: Case Management Statement

Proof of Service (not Summons and Complaint)

8/2/2021: Proof of Service (not Summons and Complaint)

Motion to Deem RFA's Admitted

8/2/2021: Motion to Deem RFA's Admitted

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

8/2/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Proof of Service (not Summons and Complaint)

8/2/2021: Proof of Service (not Summons and Complaint)

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

8/2/2021: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Notice - NOTICE NOTICE OF NON-OPPOSITION TO DEFENDANTS MOTION TO STRIKE

8/6/2021: Notice - NOTICE NOTICE OF NON-OPPOSITION TO DEFENDANTS MOTION TO STRIKE

Proof of Service (not Summons and Complaint)

8/6/2021: Proof of Service (not Summons and Complaint)

Notice - NOTICE NOTICE OF NON-OPPOSITION TO DEFENDANTS' DEMURRER TO COMPLAINT

8/6/2021: Notice - NOTICE NOTICE OF NON-OPPOSITION TO DEFENDANTS' DEMURRER TO COMPLAINT

Case Management Statement

7/16/2021: Case Management Statement

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

6/23/2021: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

6/23/2021: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Proof of Service (not Summons and Complaint)

6/23/2021: Proof of Service (not Summons and Complaint)

21 More Documents Available

 

Docket Entries

  • 06/27/2022
  • Hearing06/27/2022 at 09:00 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Non-Jury Trial

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  • 06/16/2022
  • Hearing06/16/2022 at 09:00 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Final Status Conference

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  • 04/04/2022
  • Hearing04/04/2022 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Post-Mediation Status Conference

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  • 10/15/2021
  • Hearing10/15/2021 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 10/15/2021
  • Hearing10/15/2021 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Hearing on Motion to Deem Request for Admissions Admitted

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  • 09/30/2021
  • DocketAnswer; Filed by LI INVESTMENTS LLC (Defendant); Archways Real Estate Services (Defendant)

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  • 09/30/2021
  • DocketNotice (OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE); Filed by BRENNAN LAW FIRM (Plaintiff)

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  • 09/22/2021
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 08/20/2021
  • Docketat 08:30 AM in Department E, David A. Rosen, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Continued - Stipulation

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  • 08/20/2021
  • Docketat 08:30 AM in Department E, David A. Rosen, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Continued - Stipulation

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24 More Docket Entries
  • 05/03/2021
  • Docketat 08:30 AM in Department E, David A. Rosen, Presiding; Order to Show Cause Re: Failure to File Proof of Service - Held

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  • 05/03/2021
  • DocketMinute Order ( (Order to Show Cause Re: Failure to File Proof of Service)); Filed by Clerk

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  • 04/29/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by BRENNAN LAW FIRM (Plaintiff)

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  • 04/29/2021
  • DocketProof of Service by Substituted Service; Filed by BRENNAN LAW FIRM (Plaintiff)

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  • 02/16/2021
  • DocketCivil Case Cover Sheet; Filed by BRENNAN LAW FIRM (Plaintiff)

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  • 02/16/2021
  • DocketSummons (on Complaint); Filed by BRENNAN LAW FIRM (Plaintiff)

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  • 02/16/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 02/16/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/16/2021
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 02/16/2021
  • DocketComplaint; Filed by BRENNAN LAW FIRM (Plaintiff)

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Tentative Rulings

b'

Case Number: 21GDCV00214 Hearing Date: October 15, 2021 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

BRENNAN LAW FIRM ,

Plaintiff,

vs.

LI INVESTMENTS LLC , et al.,

Defendants.

Case No.:

21GDCV00214

Hearing Date:

October 15, 2021

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

(1) DEFENDANTS’ MOTION FOR ORDER ESTABLISHING ADMISSIONS TO REQUESTS FOR ADMISSIONS (SET ONE) AND FOR MONETARY SANCTIONS

(2) DEFENDANTS’ MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET TWO) AND FOR MONETARY SANCTIONS

MOVING PARTIES: Defendants LI Investments, LLC; Archway Real Estate Services, Inc., dba Archways Property Management

RESPONDING PARTY: None

(1) Motion for Order Establishing Admissions to Requests for Admission (Set One) and for Monetary Sanctions

(2) Motion to Compel Responses to Form Interrogatories (Set Two) and for Monetary Sanctions

The court considered the moving papers filed in connection with this motion.

Motions at Issue

On June 22, 2021, defendants served Plaintiff with Requests for Admission, Set One and Form Interrogatories, Set Two (RFA Mot., Breman Decl., ¶¶ 2-4; Exh. A-C; FROG Mot., Breman Decl., ¶¶ 2-3, 5; Exh. A-C.) Plaintiff’s responses were due on July 26, 2021. To date, Plaintiffs have not responded to the discovery. (RFA Mot., Breman Decl., ¶ 5; FROG Mot., Breman Decl., ¶ 6.)

Defendants move for the following: (1) that the truth of each matter specified and the genuineness of each document specified in Requests for Admission, Set One be deemed admitted; (2) that Plaintiff be compelled to respond to Form Interrogatories, Set Two; (3) that all objections be waived; and (3) that Plaintiff and Plaintiff’s counsel be sanctioned in the amount of $2,033.50 for defendants’ needing to file the motion to deem admitted and $1,388.50 for their needing to file the motion to compel.

Analysis

Where, as here, a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280 (b).) The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280(c).)

Likewise, if a party to whom interrogatories are directed fails, as here, to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2030.290(b).) All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.)

Here, Plaintiff did not respond to Defendants’ discovery requests. Accordingly, the Court shall grant Defendants’ motions.

Sanctions Are Appropriate

Defendants request $2,033.50 in discovery sanctions for the motion to deem admitted and $1,388.50 in discovery sanctions for the motion to compel. Counsel calculated those amounts based on counsel’s expectation that Plaintiff would oppose the motions. Plaintiff did not do so, thus reducing the time counsel needed to spend on these motions. The court finds 2.5 hours for the motion to deem admitted and 1.5 hours for the motion to compel are reasonable amounts of time for unopposed motions, which amounts to $1,917 in total for the two motions. ($430 hourly rate x 4 hours plus $98.5 in costs x 2 motions.) (RFA Mot., Breman Decl., ¶ 6; FROG Mot., Breman Decl., ¶ 7.)

CONCLUSION AND ORDER

Based on the foregoing, the court grants Defendants’ motions.

The truth of each matter specified, and the genuineness of each document specified in Requests for Admission, Set One are deemed admitted.

Plaintiff is ordered to provide responses to Form Interrogatories, Set Two, without objections, within 15 days of the court’s order.

Plaintiff and Plaintiff’s counsel are ordered to pay Defendants an award of sanctions in the amount of $1,917 within 30 days of the court’s order.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 15, 2021

_____________________________

Colin Leis

Judge of the Superior Court

'b'

Case Number: 21GDCV00214 Hearing Date: August 13, 2021 Dept: E

TENTATIVE\r\nRULING ON DEMURRER AND MOTION TO STRIKE

\r\n\r\n

\r\n\r\n

Moving\r\nParty: Defendants, Li Investments\r\nLLC, (“Li”); Archways Real Estate Services, Inc., dba Archways Property\r\nManagement, (“Archways”). Archways and Li collectively hereinafter “Defendants”

\r\n\r\n

Responding\r\nParty: Brennan Law Firm (No\r\nOpposition, but Plaintiff filed an amended Complaint that does not appear to\r\nhave been served on Defendant)

\r\n\r\n

CAUSES OF ACTION IN COMPLAINT:\r\n1.\r\nBreach of Contract\r\n2.\r\nOpen Book Account

\r\n\r\n

RELIEF REQUESTED:

\r\n\r\n

· \r\nDefendant demurs to First Cause of Action for\r\nfailure to state facts sufficient to constitute a cause of action. CCP\r\n430.10(e).

\r\n\r\n

· \r\nDefendant demurs to First Cause of Action on\r\nthe ground it cannot be ascertained from the pleading whether the contract is\r\nwritten, oral, or is implied by conduct. CCP 430.10(g).

\r\n\r\n

· \r\nDefendant demurs to First Cause of Action for\r\nbeing so uncertain, ambiguous, and unintelligible including but not limited to\r\nthe alleged date of occurrence of material events, alleged date of\r\nindebtedness, all of which as alleged on the face of the pleading are contradicted\r\nby the Exhibits attached thereto. CCP 430.10(f).

\r\n\r\n

· \r\nDefendant demurs to Second Cause of Action\r\nfor failure to state facts sufficient to constitute a cause of action including\r\nbut not limited to failing to allege a new contract between the Parties but\r\ninstead basing its claim on the alleged original contract. CCP 430.10(e).

\r\n\r\n

· \r\nDefendant demurs to Second Cause of Action\r\nfor being so uncertain, ambiguous, and unintelligible as the facts including\r\nbut not limited to the alleged date of occurrence of material events, alleged\r\ndate of indebtedness, all of which as alleged on the face of the pleading are\r\ncontradicted by the Exhibits attached. CCP 430.10(f).

\r\n\r\n

· \r\nDefendant moves to strike:

\r\n\r\n

o Page\r\n2, ¶ 6 line 9 “On or about June 1, 2019”

\r\n\r\n

o Page\r\n2, ¶ 8 line 17 “On or about November 28, 2019”

\r\n\r\n

o Page\r\n2 ¶ 11 line 27 “On or about February 13, 2020”

\r\n\r\n

o Page\r\n3 ¶ 14 line 7 “Within the last two years”

\r\n\r\n

BACKGROUND:

\r\n\r\n

Plaintiff, Brennan Law\r\nFirm, alleges two causes of action 1) Breach of Contract and 2) Open Book\r\nAccount against Defendants, Li Investments, LLC and Archways Real Estate Services,\r\nInc., dba Archways Property Management, a California Corporation, and Does\r\n1-10.

\r\n\r\n

Plaintiff alleges that it\r\nentered into an agreement to perform legal services for Defendants to prosecute\r\nan unlawful detainer action and Defendants never paid Plaintiff for its\r\nservices.

\r\n\r\n

The crux of Defendants’\r\nargument in their demurrer and motion to strike is that the Complaint is\r\ndefective because it alleges the contract to perform legal services was entered\r\naround June 1, 2019 and payment was requested around November 28, 2019;\r\nhowever, the Plaintiffs submitted an Exhibit that contradicts the Complaint’s\r\nallegations and is for an invoice for legal services performed in 2018.

\r\n\r\n

ANALYSIS:

\r\n\r\n

Meet and Confer

\r\n\r\n

A party filing a demurrer\r\n“shall meet and confer in person or by telephone with the party who filed the\r\npleading that is subject to demurrer for the purpose of determining whether an\r\nagreement can be reached that would resolve the objections to be raised in the\r\ndemurrer.” (Code Civ. Proc., §430.41,\r\nsubd. (a).) “The parties shall meet and\r\nconfer at least five days before the date the responsive pleading is due. If\r\nthe parties are not able to meet and confer at least five days prior to the\r\ndate the responsive pleading is due, the demurring party shall be granted an\r\nautomatic 30-day extension of time within which to file a responsive pleading,\r\nby filing and serving, on or before the date on which a demurrer would be due,\r\na declaration stating under penalty of perjury that a good faith attempt to\r\nmeet and confer was made and explaining the reasons why the parties could not\r\nmeet and confer.” (Code Civ. Proc.,\r\n§430.41, subd. (a)(2).) Failure to sufficiently meet and confer is not grounds\r\nto overrule or sustain a demurrer. (Id., §430.41(a)(4).)

\r\n\r\n

Here, there is a\r\ndeclaration by demurring Defendants’ attorney that they wrote to Plaintiff’s\r\nattorney via email on May 10,2021 to arrange a time to meet and confer. In this\r\nemail, Defendants also set forth the grounds for demurrer. (Demurrer, p.12.)\r\nSince Plaintiff’s attorney did not respond, Defendants’ attorney sent a\r\nfollow-up email on May 20, 2021 requesting a meet and confer on the proposed\r\ndemurrer. (Id.) Plaintiff’s attorney never responded to the emails requesting\r\nto meet and confer; therefore, there was no meaningful meet and confer and the\r\nparties were not able to resolve the objections raised in the demurrer.

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

Legal Standard on Demurrer

\r\n\r\n

A\r\ndemurrer for sufficiency tests whether the complaint states a cause of\r\naction. (Hahn v. Mirda, (2007)\r\n147 Cal.App.4th 740, 747.) When\r\nconsidering demurrers, courts read the allegations liberally and in\r\ncontext. (Taylor v. City of Los\r\nAngeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting\r\nall material facts properly pleaded, but not contentions, deductions or\r\nconclusions of fact or law ….” (Berkley\r\nv. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding,\r\nthe defects must be apparent on the face of the pleading or via proper judicial\r\nnotice. (Donabedian v. Mercury Ins.\r\nCo. (2004) 116 Cal.App.4th 968, 994.) \r\nA demurrer tests the pleadings alone and not the evidence or other\r\nextrinsic matters; therefore, it lies only where the defects appear on the face\r\nof the pleading or are judicially noticed. \r\n(Code Civ. Proc., §§ 430.30, 430.70.) \r\nThe only issue involved in a demurrer hearing is whether the complaint,\r\nas it stands, unconnected with extraneous matters, states a cause of action. (Hahn,\r\nsupra, 147 Cal.App.4th at 747.)

\r\n\r\n

The\r\ngeneral rule is that the plaintiff need only allege ultimate facts, not\r\nevidentiary facts. (Doe v. City of\r\nLos Angeles (2007) 42 Cal.4th 531, 550.) \r\n“All that is required of a plaintiff, as a matter of pleading … is that\r\nhis complaint set forth the essential facts of the case with reasonable\r\nprecision and with sufficient particularity to acquaint the defendant with the\r\nnature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.\r\n(1945) 26 Cal.2d 149, 156-157.)

\r\n\r\n

On\r\ndemurrer, a trial court has an independent duty to “determine whether or not\r\nthe … complaint alleges facts sufficient to state a cause of action under any\r\nlegal theory.” (Das v. Bank of America,\r\nN.A. (2010) 186 Cal.App.4th 727, 734.) \r\nDemurrers do not lie as to only parts of causes of action, where some\r\nvalid claim is alleged but “must dispose of an entire cause of action to be\r\nsustained.” (Poizner v. Fremont\r\nGeneral Corp. (2007) 148 Cal.App.4th 97, 119.) Generally\r\nit is an abuse of discretion to sustain a demurrer without leave to amend if\r\nthere is any reasonable possibility that the defect can be cured by\r\namendment.” (Goodman v. Kennedy\r\n(1976) 18 Cal.3d 335, 349.)

\r\n\r\n

First Cause of Action – Breach of Contract

\r\n\r\n

Defendants’ briefing is a difficult to follow. Defendants\r\nhave three different sections for the first cause of action with respect to the\r\nthree grounds for demurring – failure to state sufficient facts, uncertainty,\r\nand whether contract is written, oral or implied. However, in the section on\r\nfailure to state facts sufficient to constitute a cause of action they state,\r\n“Plaintiffs first cause of action for Breach of Contract is fatally deficient\r\nfor failing to allege sufficient facts to constitute a cause of action with\r\ncertainty in that it 1) cannot be determined if the agreement is written or\r\noral, [citation omitted], 2) if written the terms of the agreement either\r\nverbatim in the face of the pleading or by attaching a copy of the agreement,\r\nand allegations of inconsistent facts appear in Plaintiffs allegations as pled\r\nand the exhibit attached to the Complaint.” (Demurrer, p.6-7.) Since this\r\nsentence includes failure to allege sufficient facts, certainty, and whether\r\nagreement is oral or written, it appears Defendants may be conflating the three\r\nseparate grounds for demurrer.]

\r\n\r\n

To state a cause of action\r\nfor breach of contract, Plaintiff must allege “(1) the existence of the\r\ncontract, (2) plaintiff’s performance or excuse for nonperformance, (3)\r\ndefendant’s breach, and (4) resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011)\r\n51 Cal.4th 811, 821.) A cause of action\r\nfor breach of contract is subject to demurrer if “it cannot be ascertained from\r\nthe pleading whether the contract is written, is oral, or is implied by\r\nconduct.” (Code Civ. Proc., §430.10(g).) Further, “the complaint must indicate on its\r\nface whether the contract is written, oral, or implied by conduct.” (Id.\r\nat 459.) A written contract must be pled verbatim in the body of the complaint,\r\nbe attached to the complaint and incorporated by reference, or be pled\r\naccording to its legal effect. (Bowden\r\nv. Robinson (1977) 67 Cal.App.3d 705, 718.) \r\nAn allegation of an oral agreement must “set[] forth the substance of\r\nits relative terms.” (Gautier v.\r\nGeneral Tel. Co. (1965) 234 Cal.App.2d 302, 305.)

\r\n\r\n

The first cause of action\r\nfor breach of contract alleges that on or about June 1, 2019 Plaintiff and Defendants\r\nentered into an agreement wherein Plaintiff would perform legal services for\r\nArchways Real Estate, dba Archway Property Management on behalf of Li\r\nInvestments, LLC. (Compl. ¶6.)\r\nLegal services were to prosecute an unlawful detainer action against a tenant.\r\n(Id.) Around November 28, 2019, Plaintiff requested Defendants perform\r\ntheir obligation under the contract by paying the sums which had become due. (Id.\r\nat ¶8.) On January 13, 2020,\r\nPlaintiff sent Defendants a Notice of Client’s Right to Fee Arbitration. (Id.\r\nat ¶9.) Since 30 days passed after the Notice was sent without receiving their\r\nfees, Plaintiff alleges that the Defendants breached their contract on February\r\n13, 2020 by failing to pay the amount due of $27,561.20. (Id. at ¶10-12.)

\r\n\r\n

Defendants demur to the\r\nbreach of contract claim on a number of grounds. The first is failure to state\r\nfacts sufficient to constitute a cause of action. (Demurrer, p.6.) However, under\r\nthis ground the Defendants argue that the Complaint is defective because the Complaint\r\nfails to show the nature of the contract with certainty and the Complaint is\r\ndeficient because it cannot be determined if the agreement is written or oral.\r\n(Demurrer, p. 6-7.) Further under this ground, Defendants note that the\r\nallegations pled are contradicted by Exhibit 1 attached to the Complaint and\r\nincapable of being reconciled in that the Exhibit expressly confirms the\r\nservices allegedly sued upon were performed nearly a year earlier than alleged\r\nand also billed in November 2018, not 2019 as the Complaint alleges. (Demurrer,\r\np. 7.) Defendants argue that the Exhibit controls and the last date of services\r\nprovided was in November 2018 when billed, there is no allegation of a contract\r\nentered into to perform services in 2018, and absent a writing this claim is\r\nlong barred by the statute of limitation. (Demurrer, p. 7.) However, Defendants\r\nfail to state what statute of limitations applies and why the action is allegedly\r\nbarred.

\r\n\r\n

Defendants also demur to\r\nthe breach of contract claim for failing to allege whether the contract sued\r\nupon is oral, written or implied by conduct. (Demurrer, p.8.)

\r\n\r\n

Finally, Defendants demur\r\nto the breach of contract claim as uncertain, ambiguous, and unintelligible as\r\nthe facts alleged in the face of the pleading are contradicted by the Exhibit\r\nattached and thus Defendants cannot reasonably respond. (Id.) Defendants\r\nnote that it would be impossible to have entered into a contract in June 2019\r\nfor services to be provided that were performed and completed a year earlier.

\r\n\r\n

Here, the demurrer to\r\nthe first cause of action for breach of contract is SUSTAINED. A cause of action for breach of contract is\r\nsubject to demurrer if it cannot be ascertained from the pleading whether the\r\ncontract is written, is oral, or is implied by conduct. (Code Civ. Proc., §430.10(g).) The Complaint\r\nsimply states that the Plaintiff and Defendants entered into an agreement\r\nwherein Plaintiff would perform legal services. (Comp. ¶6.) Since it cannot be\r\nascertained from the pleading whether the agreement was written, oral, or\r\nimplied by conduct, the demurrer to the first cause of action should be sustained.\r\n

\r\n\r\n

The Court need not address\r\nthe alleged inconsistencies between the Exhibit and the Complaint and the other\r\ngrounds for demurrer to the first cause of action since the demurrer can be\r\nsustained under the aforementioned ground.

\r\n\r\n

Second Cause of Action – Open Book Account

\r\n\r\n

“A common count is not a specific cause of action ...;\r\nrather, it is a simplified form of pleading normally used to aver the existence\r\nof various forms of monetary indebtedness.” (Professional Collection\r\nConsultants v. Lujan (2018) 23 Cal. App. 5th 685, 690.) “A ‘book account’ is ‘a\r\ndetailed statement which constitutes the principal record of one or more\r\ntransactions between a debtor and a creditor arising out of a contract or some\r\nfiduciary relation, and shows the debits and credits in connection therewith… A\r\nbook account is ‘open’ where a balance remains due on the account.” (Ibid.) To\r\nestablish a claim for open book account, plaintiff must provide evidence of all\r\nof the following: 1. That plaintiff and defendant had (a) ¿nancial\r\ntransaction(s); 2. That plaintiff kept an account of the debits and credits\r\ninvolved in the transaction(s); 3. That defendant owes plaintiff money on the\r\naccount; and 4. The amount of money that defendant owes plaintiff. (CACI 372; CCP §337a.)

\r\n\r\n

Defendants demur to Plaintiff’s second cause of action for\r\nopen book account for failure to state facts sufficient to constitute a cause\r\nof action. (Demurrer, p.8.) In this section of Defendants’ demurrer, Defendants\r\ncite case law for the requirements of a cause of action under “account stated.”\r\n(Demurrer, p.8-9.) Defendants argue that an action for an account stated is not\r\nbased upon the original dealings of the parties but is rather based on a new\r\ncontract. (Demurrer, p.9.) Since Plaintiff failed to allege a new contract and\r\ninstead predicated its claim on a purported preexisting contract, Defendants\r\nargue that Plaintiff fails to allege sufficient facts to support a cause of\r\naction for open book account. (Demurrer, p.9.)

\r\n\r\n

Defendants also demur to Plaintiff’s open book account based\r\nupon the theory of uncertainty, ambiguity, and unintelligibility as to the\r\nalleged date of occurrence of material events and date of indebtedness.\r\n(Demurrer, p. 10.) In an attempt to support this theory, Defendants mention a\r\nnumber of arguments. Defendants mention that the facts pleaded on the Complaint\r\nare contradicted by the Exhibits as to the year of the contract. (Id.)\r\nAlso mentioned is that the allegation that the breach occurred on February 13, 2020,\r\n30 days after Plaintiff’s alleged service of a Notice of Right to Arbitration\r\nis contrary to law because where the claim is based on an account of one item,\r\nthe limitations period begins to run from the date of that item, in this\r\ninstance November 28, 2018 because of the date on the billing statement in\r\nExhibit 1. (Id.) Defendants state that allegations that are contrary to\r\nthe law or to a fact of which judicial notice may be taken will be treated as a\r\nnullity.

\r\n\r\n

The demurrer to the second cause\r\nof action is SUSTAINED. The Court sustains the demurrer to the second cause\r\nof action because the Court is aware that Plaintiff has amended its Complaint.\r\nHowever, the Court notes that it does not appear that the Plaintiff has served\r\nthe Defendants the amended Complaint.

\r\n\r\n

Leave\r\nto Amend

\r\n\r\n

Leave to amend will only be granted if\r\nPlaintiff provides sufficient facts that demonstrate a reasonable probability\r\nof successful amendment given the deficiencies discussed above. (Goodman v.\r\nKennedy (1976) 18 Cal.3d 335, 347.)

\r\n\r\n

Plaintiff is GRANTED LEAVE TO AMEND ON BOTH\r\nCAUSES OF ACTION as it appears the defects have a reasonably probability of\r\nsuccessful amendment.

\r\n\r\n

\r\n\r\n

Motion to Strike

\r\n\r\n

Any\r\nparty, within the time allowed to respond to a pleading may serve and file a\r\nnotice of motion to strike the whole or any part thereof. (CCP § 435(b)(1);\r\nCal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any\r\ntime in its discretion and upon terms it deems proper: (1) strike out any\r\nirrelevant, false, or improper matter inserted in any pleading; or (2) strike\r\nout all or any part of any pleading not drawn or filed in conformity with the\r\nlaws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b);\r\nStafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading\r\nwhich is not essential to the claim is surplusage; probative facts are\r\nsurplusage and may be stricken out or disregarded”].)

\r\n\r\n

Defendants\r\nmove to strike the following portions of the Complaint:

\r\n\r\n

o Page\r\n2, ¶ 6 line 9 “On or about June 1, 2019”

\r\n\r\n

o Page\r\n2, ¶ 8 line 17 “On or about November 28, 2019”

\r\n\r\n

o Page\r\n2 ¶ 11 line 27 “On or about February 13, 2020”

\r\n\r\n

o Page\r\n3 ¶ 14 line 7 “Within the last two years”

\r\n\r\n

(Motion to Strike, p.6.)

\r\n\r\n

\r\n\r\n

Defendants move to strike the four above-mentioned portions\r\non the grounds that the Exhibit attached to the Complaint indicates services\r\nwere performed sometime between July 2018 and November 2018, and not 2019 like\r\nthe Complaint alleges. (Mot. to Strike, p.6.) The Defendants argue that facts\r\nappearing in exhibits attached to the complaint are given precedence over\r\ninconsistent allegations in the complaint. (Mot. to Strike, p.5, citing Moran\r\nv. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1145-1146.)

\r\n\r\n

The Defendants also argue that the Page 2 ¶ 11 line 27 “On\r\nor about February 13, 2020” needs to be stricken as contrary to law and treated\r\nas a nullity, thus rendering it irrelevant, false, and improper. (Mot. to\r\nStrike, p.6.) Defendants state, “The allegation that the breach occurred in\r\nFebruary 13, 2020 30 days after Plaintiff’s alleged service of a Notice of\r\nRight to Arbitration is contrary to law and accordingly treated as a nullity.\r\nThe breach, if any occurred in November 2018. (See Complaint at Exhibit 1) – or\r\nlatest November 28, 2019 were the allegations on the face of the complaint\r\ndeemed true, and not November 13, 2020[ here Defendants likely meant February\r\n13, 2020]. Where the claim is based on an account of one item, as alleged in\r\nthis action, the limitations period begins to run from the date of that item –\r\nin this instance November 28, 2018 the date reflected on the billing statement\r\nattached as Exhibit 1 to the Complaint. Where the claim is based on more than\r\none item, the period begins to run from the date of the last item. [CCP §\r\n337(b)] Fee Recovery/Enforcing Fee Agreements, Cal. Prac. Guide Prof. Resp. Ch.\r\n5-K section 5:1023.1]

\r\n\r\n

The motion to strike is DENIED.\r\n The Court has discretion on a motion to\r\nstrike, and the Court is aware that Plaintiff has amended its Complaint.\r\nHowever, it appears that Plaintiff has not served its amended Complaint.

\r\n\r\n

TENTATIVE\r\nRULING:

\r\n\r\n

Demurrer\r\nto both causes of action SUSTAINED; 20 days LEAVE TO AMEND IS GRANTED on both causes\r\nof action.

\r\n\r\n

MOTION\r\nTO STRIKE DENIED without prejudice.

\r\n\r\n

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