Case Name:??? Access Group Inc. v. Chrichelle McCloud, et al.
Case No.:??????? 1-15-CV-280279
Motion to Quash Service of Summons and Dismiss by Defendant Chrichelle McCloud
Defendant Chrichelle McCloud (?McCloud?) entered into a Promissory Note (?Agreement?) with plaintiff Access Group Inc. (?AGI?). (Complaint, ?6.)? Defendant McCloud breached the Agreement by failing to make monthly payments pursuant to the Agreement. (Complaint, ??7 ? 8.)? Defendant McCloud owes plaintiff AGI the sum of $6,419.79 plus interest. (Complaint, ?9.)
On May 6, 2015, plaintiff AGI filed a complaint against defendant McCloud asserting causes of action for:
- Breach of Contract
- Open Book Account
- Account Stated
- Unjust Enrichment
On April 27, 2016, defendant McCloud filed this motion to quash service of summons and dismiss.
- Timely service of complaint.
Although labeled a motion to quash service of summons, defendant McCloud?s motion does not cite relevant authority to challenge personal jurisdiction. ?Instead, defendant McCloud begins by citing to California Rules of Court, rule 3.740, subdivision (d) which states, ?The complaint in a collection case must be served on all named defendants, and proofs of service on those defendants must be filed, or the plaintiff must obtain an order for publication of the summons, within 180 days after the filing of the complaint.?? Defendant McCloud points out that plaintiff AGI commenced this action on May 6, 2015 but did not serve her until April 6, 2016 and did not file proof of service until April 13, 2016, both dates which are more than 180 days after the filing of the complaint.
However, the plaintiff?s failure to comply with California Rules of Court, rule 3.740, subdivision (d) does not result in a lack of jurisdiction.? Instead, California Rules of Court, rule, 3.740, subdivision (e) states the effect.? ?If proofs of service on all defendants are not filed or the plaintiff has not obtained an order for publication of the summons within 180 days after the filing of the complaint, the court may issue an order to show cause why reasonable monetary sanctions should not be imposed.?? Defendant McCloud asks the court to issue an order to show cause.? However, in view of the fact that service has occurred, the court declines defendant?s invitation.
Defendant McCloud?s motion to quash service of summons is DENIED.
Defendant McCloud next challenges the adequacy of the plaintiff?s complaint for breach of contract.? Although labeled as a motion to dismiss, the court will hereby treat defendant McCloud?s motion to dismiss as a demurrer to the breach of contract cause of action.? A defendant may demur on the ground that the ?pleading does not state facts sufficient to constitute a cause of action.? (Code Civ. Proc., ?430.10, subd. (e).)
Defendant McCloud contends the breach of contract cause of action fails to set forth the terms verbatim or set forth the material terms.? If the contract is written, ?the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.?? (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459.)
Alternatively, ?[i]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.? (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) ?This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions, and it involves the danger of variance where the instrument proved differs from that alleged; it is not frequently employed.? Nevertheless, it is an established method.?? (4 Witkin, California Procedure (4th ed. 1997) Pleading, ?480, p. 573.)? Here, plaintiff AIG has adequately alleged the legal effect.? At paragraph 8, plaintiff AIG sufficiently alleges defendant McCloud failed to make payments pursuant to the Agreement.
Defendant McCloud contends further that the cause of action is barred by the statute of limitations.? ?Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies.?? (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2015) ?7:50, p. 7(I)-30 citing Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995, et al.)? ?The running of the statute must appear ?clearly and affirmatively? from the dates alleged.? It is not enough that the complaint might be barred.?? (Id. citing Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42, et al.)? Here, however, the complaint does not allege any dates which would disclose, clearly and affirmatively, the running of the statute of limitations.
Accordingly, defendant McCloud?s motion to dismiss will be treated as a demurrer and is hereby OVERRULED.