Los Angeles County Superior  Court

Case Number: KC067726    Hearing Date: April 25, 2016    Dept: J

Re: Gerald Fulkerson v. Avanti Wire Products, Inc., et al. (KC067726)

DEMURRER TO SUPPLEMENTAL COMPLAINT

Moving Parties: Defendants Avanti Wire Products, Inc. and Lexin Weng

Respondent: Plaintiff Gerald Fulkerson

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

In this breach of contract action, the Complaint alleges that Defendants hired Plaintiff as an outside sales representative for the sale of wire products to be paid 5% of the selling price on all wire sales generated as a result of Plaintiff’s efforts, but that Defendants breached the agreement by failing to pay Plaintiff his commissions. Plaintiff commenced this action on 6/18/15. The Supplemental Complaint filed on 1/28/16, asserts causes of action for:

1. Breach of Contract
2. Common Counts

A Court Trial is set for 8/15/16.

Defendants Avanti Wire Products, Inc. (“Avanti”) and Lexin Weng (“Weng”) (“Defendants”) demur to the Supplemental Complaint of Plaintiff Gerald Fulkerson (“Plaintiff”), and to each of the causes of action asserted therein, on the grounds they fail to state facts sufficient to constitute a cause of action and that they are uncertain.

FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT & SECOND CAUSE OF ACTION FOR COMMON COUNTS:

The elements of a breach of contract cause of action are: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

A common count is not a specific cause of action: “[R]ather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) 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. (Farmers Ins. Exchange v. Zerin (1997) 53 CA4th 445, 460.)

“[A] common count, by long continued practice is not subject to attack by general demurrer or by a special demurrer for uncertainty.” (Auckland v. Conlin (1928) 203 Cal. 776, 778.) However, “[w]hen a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1560.)

The Supplemental Complaint alleges that on or about 2005, the parties entered into an oral agreement wherein Defendants hired Plaintiff as an outside sales representative for the sale of wire products to be paid five percent (5%) of the selling price on all wire sales of customers referred by Plaintiff or generated as a result of Plaintiff’s efforts (Supplemental Complaint, ¶ BC-1); between January 6, 2015 and November 25, 2015, Defendants breached the agreement by failing to pay a referral fee or commission on sales of wire products from Defendant Avanti to Growers Supply Company, Inc. (Id., ¶ BC-2); the total sales where Plaintiff was the procuring cause during this period was $2,097,726.70, for which a five percent referral fee or commission is due in the sum of $104,886.3 (Ibid.); Plaintiff’s performance or excuse of non-performance (Id., ¶ BC-3); and Plaintiff’s damages (Id., ¶ BC-4).

The Supplemental Complaint alleges adequate facts to support causes of action for breach of contract and common counts. Uncertainties, if any, may be resolved through discovery.

Defendants, in their demurrer, contend that the subject contract is invalid under the statute of frauds, because it is an agreement that by its terms is not to be performed within a year from the making thereof. However, the Supplemental Complaint does not allege facts demonstrating that the oral agreement required performance over more than one year. Moreover, the Supplemental Complaint alleges facts demonstrating an exception to the statute of frauds, i.e., equitable estoppel based on Plaintiff’s performance. (See Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624 — estoppel is proper to avoid unconscionable injury or unjust enrichment that would result from refusal to enforce oral promise.)

The demurrer is overruled. Defendants have 10 days to answer.