1) Motion to Bifurcate ? OFF CALENDAR AT REQUEST OF MOVING PARTY
2) Motion for Judgment on the Pleadings ? GRANTED WITH LEAVE TO AMEND
Defendant/Cross-Complainant Hoang-Chuong Nguyen Vu?s motion to bifurcate is off calendar per moving party?s notice of taking the motion off calendar filed on 12/12/2016.
Defendant/Cross-Complainant Hoang-Chuong Nguyen Vu?s motion for judgment on the pleadings as to plaintiff Mai Ngoc Luong?s second cause of action for breach of oral agreement for employment is granted with 20 days leave to amend.
Pursuant to California Code of Civil Procedure (?CCP?) section 438(b)(1), a party may move for judgment on the pleadings.? When a defendant moves for judgment on the pleadings, the defendant must show that 1) the Court has no jurisdiction of the subject of the cause of action alleged in the complaint and/or 2) the complaint does not state facts sufficient to constitute a cause of action against that defendant.? Cal. Code Civ. Proc. ? 438(c)(1)(B).? The grounds for a motion for judgment on the pleadings ?shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.??? Cal. Code Civ. Proc. ? 438(d).? A defendant?s motion for judgment on the pleadings must be made after the defendant files her answer to the complaint and the time for defendant to demur to the complaint has expired.? Cal. Code Civ. Proc. ? 438(f)(2).? However, no motion for judgment on the pleading may be made if a pretrial conference order has been entered pursuant to CCP section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the Court otherwise permits.? Cal. Code Civ. Proc. ? 438(e).
The Court may grant leave to file an amended complaint.? Code Civ. Proc. ? 438(h)(1).? When leave is granted, the Court ?shall grant 30 days to the party against whom the motion was granted to file an amended complaint.?? Code Civ. Proc. ? 438(h)(2).
Civil Code Section 1624 invalidates an oral ?agreement that by its terms is not to be performed within a year from the making thereof.?
Courts consistently have held that an oral employment agreement that by its terms is not to be performed within a year falls within the statute of frauds.? Gressley v. Williams (1961) 193 Cal.App.2d 636, 640 (An oral employment agreement made in March 1957 for employment until December 1958 was not to be performed within a year from its making and was invalid under California Civil Code section 1624.); see also Herspring v. United Canneries Co. of Cal. (1921) 54 Cal.App. 402, 405-406 (Ten year oral employment agreement ?violated section 1624, subd. 1, of the Civil Code.?); Tomlins v. American Ins. Co. (1968) 258 Cal.App.2d 525, 527 (Oral employment agreement for three year term ?is within the statute of frauds.?)
However, ?the statute of frauds does not apply to an employment contract unless its terms provide that the employee cannot completely perform it within one year from the making of the contract.?? White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343.? If the ?alleged oral contract may be terminated at will by either party, it can, under its terms, be performed within one year.?? Id. at 344.? The general rule is that ?if a condition terminating a contract may occur within one year of its making, then the contract is performable within a year and does not fall within the scope of the statute of frauds.? Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 673.
As pled, the oral agreement falls within the statute of frauds.? The agreement was to employ Plaintiff for 20 years.? No facts are pled to show whether either Plaintiff or Defendant could terminate that employment relationship.? The only facts pled was the 20-year term of the employment relationship and the amount to be paid.? Complaint, 1:16-19, 26-27; 4:15-5:1.
Trial is continued on the Court?s own motion to April? 10, 2017 at 9:00 a.m.
Defendant to give notice.