Opinion
G044579
02-09-2012
ALAN ADAM, Plaintiff and Appellant, v. HOWARD'S APPLIANCES, INC., Defendant and Respondent.
Law Offices of Russ E. Boltz and Russ E. Boltz for Plaintiff and Appellant. Friedenthal, Heffernan & Klein and Jay D. Brown for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2008-00107908)
OPINION
Appeal from an order of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed in part and reversed in part.
Law Offices of Russ E. Boltz and Russ E. Boltz for Plaintiff and Appellant.
Friedenthal, Heffernan & Klein and Jay D. Brown for Defendant and Respondent.
INTRODUCTION
Plaintiff Alan Adam filed an amended complaint containing claims for, inter alia, misrepresentation, violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL), breach of a written contract regarding the installation of a washing machine, and breach of a contract to reimburse plaintiff for damages caused by the installation of the washing machine (restoration contract) against defendant Howard's Appliances, Inc. The amended complaint alleged plaintiff suffered substantial property damage and incurred expenses following defendant's faulty installation of a washing machine. Plaintiff contends the trial court erred by sustaining defendant's demurrer to plaintiff's misrepresentation, unfair competition, and breach of contract claims without leave to amend.
We affirm in part and reverse in part. We affirm the portion of the order sustaining the demurrer without leave to amend as to the misrepresentation and unfair competition claims. We also affirm the portion of the trial court's order sustaining the demurrer without leave to amend as to the breach of a written contract claim based on the installation of the washing machine. We reverse, however, the portion of the trial court's order sustaining the demurrer as to the breach of the restoration contract claim because the amended complaint alleges sufficient facts to state such a claim.
BACKGROUND
I.
PLAINTIFF FILES THE COMPLAINT; THE TRIAL COURT GRANTS DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS.
In June 2008, plaintiff filed a complaint against defendant and Keith Running, an alleged insurance adjuster, seeking recovery of damages plaintiff suffered in 2004, following defendant's allegedly faulty installation of a washing machine that had been purchased from defendant. Although the complaint alleged plaintiff suffered "damages a[s] the result of breach of contract and negligence by Defendant," and also as the result of breach of contract and misrepresentations made by Running, the complaint was not organized by causes of action.
Defendant filed a motion for judgment on the pleadings, arguing that "plaintiff's complaint as a whole is improperly pled and as to specific, purported, causes of action on the grounds that the complaint fails to state facts sufficient to constitute a cause of action against defendant." Defendant also argued plaintiff's negligence claim was barred by the applicable three-year statute of limitations under Code of Civil Procedure section 338.
Plaintiff filed an opposition to defendant's motion, arguing, inter alia, that his claims were not barred by the applicable statute of limitations because he had previously filed an action against defendant on July 25, 2005 (the prior action), which he voluntarily dismissed on August 18, 2006 "[f]or tactical reasons." Plaintiff argued the prior action "alleged the same facts, the same damages, the same claims, and did so in the same format as the Complaint here, in virtually verbatim form," and, thus, the statute of limitations was "equitably tolled by the pendency" of the prior action.
The trial court granted the motion for judgment on the pleadings for the following reasons: "Plaintiff pleaded that on 7/24/04, plaintiff purchased washing machine and contracted with [defendant] to have it installed. Plaintiff's [sic] agents negligently installed it on 7/25/04 and [i]n the course of installing it, causing massive flooding. As the alleged property damage occurred on 7/24/04, defendant contends the action had to be filed within the three year statute of limitations. . . . [¶] . . . [¶] Opposition claims that while it did not state separate c[]auses of action, plaintiff is suing for negligence, other torts and breach of contract. [¶] Plaintiff alleges two contracts by Howards. There is equitable tolling based on fact that plaintiff had filed the prior action. The statute is tolled during that period. [¶] As to the breach of written contract, plaintiff claims that defendant Howards promised in writing to pay for 'any and all damages' and there was an oral promise by Mr. Running to 'fully adjust the claim.' It appears such claims are too vague to enforce, nor did plaintiff plead any consideration for such alleged promises. [¶] As to the negligence based claim, under Martell [v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978], the action is time barred, as equitable tolling does not apply under these facts, where plaintiff simply refiled in the same forum of a previously dismissed case."
The trial court further stated: "The judgment on the pleadings is granted on the contract based claims, with 10 days leave to amend. The judgment on the pleadings is granted on the negligence based claim without leave to amend." (Boldface & underscoring omitted.)
II.
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
In August 2010, plaintiff filed a first amended complaint against defendant, Running, and O'Blenes Delivery Services (the amended complaint). The amended complaint contained a misrepresentation claim, a claim entitled "failure to supervise agents engaged in plumbing activities," a claim entitled "strict liability for damage to property," a claim for unfair competition, and two breach of contract claims against defendant. The amended complaint contained a misrepresentation claim against Running. It also contained a claim for misrepresentation, a claim entitled "strict liability for damage to property," and a claim entitled "breach of third-party beneficiary contract" against O'Blenes Delivery Service.
The amended complaint alleged that in July 2004, plaintiff leased a portion of his premises in Laguna Beach to Sharon Jacobs and her fiance, Russ E. Boltz. On July 24, Jacobs and Boltz, "with [plaintiff's ] express authorization, contracted in writing ('the Sales Contract') for the purchase and proper, safe and complete installation of a washing machine from Defendant Howard's, including delivery and installation of the washing machine . . . for the next day." The amended complaint stated that a copy of the sales contract was attached to the complaint. It further stated that "handwritten statements and facsimile transmission information" appearing on the attached document "are not part of the Sales Contract."
The amended complaint further alleged that on July 25, 2004, defendant's "agents" delivered the washing machine. They failed to "properly prepare the premises for the installation, including failing to shut off water supplies to the apartment, and broke water pipe connections in the process of installation, resulting in massive water eruptions and flooding of the Plaintiff's premises." As instructed by plaintiff, Boltz notified defendant of the flooding and demanded "that all resulting damage be corrected." Defendant's agent, Chris Mikuta, "confirmed, orally and in writing that Defendant Howard's would be responsible for reimbursing Plaintiff for the cost involved in restoration, repair and/or replacement of his premises and property resulting from the flooding, and immediately thereafter, emergency containment services were provided to the Premises by contractors engaged by Plaintiff." The amended complaint stated, "[t]he written agreement ('the Restoration Contract') is attached as Exhibit 1, including all handwritten portions of it."
In the amended complaint, plaintiff alleged defendant's "offer in the Restoration Contract was accepted by Plaintiff, who, in consideration therefore, agreed to refrain from engaging in restoration or repair of his property without permitting Defendant Howard's to approve of such actions or contractors prior to any such services being performed." On July 27, 2004, "an individual named 'O'Blenes'" advised plaintiff that defendant had sent him to inspect the damage. O'Blenes told plaintiff that "he would 'have someone come out' to deal with the damage." On July 30, Running identified himself to plaintiff as an "'adjuster' who would be responsible, on behalf of Defendant Howard's, for restoration of Plaintiff Adam's Premises and property and other expenses and losses resulting from the flooding." On several occasions thereafter, Running told plaintiff he would be directly paid or reimbursed for his expenses.
The amended complaint also alleged Running "caused payments to be issued" to plaintiff from "the 'Keith Running Insurance Trust'" to compensate plaintiff for repair expenses. Running repeatedly told plaintiff that he was obtaining the funds for those payments "from an insurance carrier which had accepted responsibility for them." In February 2005, however, Running told plaintiff's representatives "that there was no insurance carrier making payments, and that Defendant Running was not acting for or in conjunction with any insurance carrier, and all payments to Plaintiff thereupon ceased."
III.
DEFENDANT FILES DEMURRER TO THE AMENDED
COMPLAINT; THE TRIAL COURT SUSTAINS DEFENDANT'S
DEMURRER WITHOUT LEAVE TO AMEND; ADAM APPEALS.
Defendant filed a demurrer challenging each of the claims asserted against it in the amended complaint, on the ground the amended complaint failed to state any cause of action against defendant. Defendant argued plaintiff's claims for misrepresentation, failure to supervise, and strict liability were barred by the applicable statute of limitations. Defendant also argued the amended complaint contained insufficient factual allegations to state a claim for unfair competition or breach of contract against defendant.
The trial court sustained the demurrer in its entirety without leave to amend and signed an order dismissing the lawsuit against defendant. The court's signed order of dismissal stated (1) plaintiff's cause of action for misrepresentation was barred by the applicable statute of limitations; (2) plaintiff's claims for "failure to supervise" and "strict liability" were "merely newly labeled negligence claims" which the trial court had already deemed barred by the statute of limitations in its ruling on defendant's motion for judgment on the pleadings; (3) the unfair competition claim "does not seek any recoverable relief; and (4) plaintiff failed to allege a contract with defendant. The trial court further ordered that "[f]urther leave to amend is not warranted" and dismissed plaintiff's action against defendant.
In his opening brief, plaintiff states that the trial court "did not make any express finding" as to plaintiff's misrepresentation claim against Running. But, Running did not demur to that claim and that claim was not before the trial court. Plaintiff further states the trial court thereafter dismissed the entire action, including claims in the amended complaint that were not alleged against defendant. plaintiff's statement is inaccurate. The order of dismissal states the court sustained defendant's demurrer as to the claims asserted against defendant; it did not address any other claim in the amended complaint. That order is properly understood to dismiss plaintiff's action against defendant only. We therefore do not address plaintiff's arguments regarding the merit of its misrepresentation claim against Running, including its argument that it is entitled to punitive damages on that claim.
A dismissal "in the form of a written order signed by the court and filed in the action" is considered a judgment (Code Civ. Proc., § 581d) and thus is appealable under Code of Civil Procedure section 904.1, subdivision (a)(1).
DISCUSSION
I.
STANDARD OF REVIEW
"We independently review the ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action. [Citation.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context. [Citation.] 'We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons. [Citation.]' [Citation.]" (Entezampour v. North Orange County Community College Dist. (2010) 190 Cal.App.4th 832, 837.)
"Where a demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. [Citation.] It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. [Citation.] Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. [Citation.] Plaintiff can make this showing in the first instance to the appellate court. [Citation.]" (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.)
II.
THE MISREPRESENTATION CLAIM
The trial court sustained the demurrer as to plaintiff's claim for misrepresentation against defendant on the ground it was barred by the applicable three-year statute of limitations under Code of Civil Procedure section 338, subdivision (d). Section 338, subdivision (d) provides that "[a]n action for relief on the ground of fraud or mistake" must be brought within three years, and further provides that such a claim "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake."
We note the trial court sustained defendant's demurrer to plaintiff's claims for "failure to supervise" and "strict liability" on the ground those claims were similarly statutorily time-barred. Plaintiff, however, has not provided any legal argument or analysis challenging the trial court's ruling as to those claims. We therefore do not discuss them further. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1372, fn. 3; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
The amended complaint alleged defendant was liable to plaintiff for misrepresentation because until February 2004, Running, while acting as defendant's agent, falsely stated to plaintiff that defendant had accepted responsibility for plaintiff's damages and would accept responsibility for all of plaintiff's legitimate expenses and losses. Plaintiff filed the complaint in June 2008—more than three years after the last act of alleged misrepresentation occurred. As alleged in the amended complaint (and acknowledged in his opening brief), plaintiff became aware of the alleged misrepresentation no later than February 2005. Thus, the record shows plaintiff's misrepresentation claim against defendant is statutorily time-barred.
In his opening brief, plaintiff argues the misrepresentation claim is not barred by the statute of limitations because he had filed the prior action against defendant in July 2005, which he voluntarily dismissed in August 2006 "[f]or tactical reasons." Plaintiff argues the prior action "alleged the same facts, the same damages, the similar claims sounding both in tort and in contract, and did so in the same format as the Original Complaint here, in virtually verbatim form." He concludes that the applicable statute of limitations was tolled while the prior action was pending, and, thus, the complaint in the instant action was timely filed.
In a footnote in his opening brief, plaintiff requests that this "Court take notice of [the prior] action, as a case within the records of this Court." plaintiff's request does not comply with rule 8.252(a)(1) of the California Rules of Court, which states: "To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order." Plaintiff has also failed to identify or provide copies of any document filed in the prior action, which he contends is relevant to this appeal or explain its relevance. (Cal. Rules of Court, rule 8.252(a)(2)(A).) We therefore deny plaintiff's request. For purposes of our analysis, however, we assume the accuracy of the description of the procedural history of the prior action set forth in the opening brief and, for the reasons explained post, conclude plaintiff's equitable tolling argument lacks any merit.
In McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100, the Supreme Court stated: "Broadly speaking, the [equitable tolling] doctrine applies '"[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one."' [Citation.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason. [Citation.]" The Supreme Court further stated: "Tolling eases the pressure on parties 'concurrently to seek redress in two separate forums with the attendant danger of conflicting decisions on the same issue.' [Citations.] By alleviating the fear of claim forfeiture, it affords grievants the opportunity to pursue informal remedies, a process we have repeatedly encouraged." (Ibid.; see also id. at p. 96 [holding statute of limitations on California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) claim is equitably tolled while an employee voluntarily pursues an internal administrative remedy before filing complaint]; Elkins v. Derby (1974) 12 Cal.3d 410, 419-420 [statute of limitations tolled as to the plaintiff's personal injury cause of action while plaintiff pursued workers' compensation claim]; Addison v. State of California (1978) 21 Cal.3d 313, 317 [equitable tolling doctrine applies to voluntary pursuit of alternative remedies against public defendants]; Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 410-411 [statute of limitations tolled when the plaintiff filed an action against an insurer, which the trial court erroneously dismissed as premature].)
Here, plaintiff does not seek tolling of the applicable statute of limitations because he pursued an administrative remedy, an alternative remedy, or an action in a different forum; he admits he voluntarily dismissed the prior action for tactical reasons. Instead, plaintiff contends the statute of limitations as to the misrepresentation claim against defendant should be tolled for the time period he originally pursued the "same claims" in the prior action in the same forum.
A similar argument was rejected by the California Supreme Court in Wood v. Elling Corp. (1977) 20 Cal.3d 353, 359 (Wood). In Wood, the Supreme Court stated that the California law on the tolling of a statute of limitations is consistent with "the rule in the majority of jurisdictions" providing that "'[i]n the absence of a statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice to him.'" (Ibid.) The Supreme Court further stated: "This rule, of course, is wholly in accord with the policy in favor of the prompt prosecution of legal claims, whereas the proposition advanced by plaintiff might well operate in defiance of that policy. If a timely action dismissed without prejudice were, without more, to have the effect of tolling the statute of limitations during the pendency of that action, an indefinite extension of the statutory period—through successive filings and dismissals—might well result." (Id. at pp. 359-360, fn. omitted.)
Plaintiff cites Afroozmehr v. Asherson (1988) 201 Cal.App.3d 704 for the legal proposition that "filing of prior action over same subject matter justifies equitable tolling during pendency of other action." The Supreme Court, however, ordered Afroozmehr v. Asherson decertified for publication and thus it is not citable.
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In Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 429, the plaintiff argued, "the statute of limitations is tolled when a complaint is filed so that a plaintiff may dismiss the complaint and refile the same action long after the statute of limitations has expired." The appellate court "affirm[ed] the trial court's rejection of this preposterous proposition." (Ibid.) The appellate court cited Wood, supra, 20 Cal.3d 353, and further stated: "One only needs to contemplate what this method of calendar management would lead to and how it would undermine efficient judicial administration. [Code of Civil Procedure s]ection 583.130 provides in part: 'It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.' If [the plaintiff]'s proposition had any validity, plaintiffs could start and stop an action at will, without regard for the expense, delay, and frustration such conduct would impose on the court and the defendants." (Thomas v. Gilliland, supra, at p. 433.)
Plaintiff did not and does not state how, if given the opportunity, he would be able to modify the amended complaint to state a misrepresentation claim against defendant that would not be barred by the statute of limitations. The trial court, therefore, did not err by sustaining defendant's demurrer to the misrepresentation claim without leave to amend.
III.
THE UNFAIR COMPETITION CLAIM
"The UCL prohibits 'any unlawful, unfair or fraudulent business act or practice . . . .'" (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1401.) "'[T]o state a claim under the [UCL] . . . one need only show that "members of the public are likely to be deceived."'" (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1151; In re Tobacco II Cases (2009) 46 Cal.4th 298, 312.)
In the amended complaint, plaintiff did not allege defendant engaged in an unlawful or fraudulent business act or practice. Instead, plaintiff alleged defendant violated the UCL by unfairly "promising customers that Howard's would deliver and install products, and not disclosing the name or other identification of the actual business and/or persons mak[ing] deliveries and performing installation, and not insuring that customers were protected by actual insurance or other assurances of financial ability to perform repairs." Plaintiff further alleged that such conduct "is particularly unfair when Defendant Howard's does not engage in careful assurance, after an incident damaging a customer's premises, that those to whom it delegates the duty of properly remedying any damage are not, in fact, responsible and licensed insurance adjusters or authorized representatives of insurance companies." Plaintiff also stated, "[i]t is unfair, within the meaning of Business and Professions Code § 17200 to subject customers to an unclear and undisclosed web of agents, independent contractors and, as evidenced by the engagement by Defendant Howard's and/or Defendant O'Blenes[,] an actual liar and fraud, to wit: Keith Running, when a customer seeks redress from a company such as Defendant Howard's."
The allegations underlying plaintiff's unfair competition claim do not show defendant engaged in an ongoing business practice that threatened to likely deceive the public. Instead, the allegations at most suggest defendant called upon allegedly ineffective, incompetent, and/or dishonest agents to provide installation services or help resolve the problems caused by the faulty installation of the washing machine.
In the amended complaint, plaintiff sought damages, including punitive damages, under his unfair competition claim. But, "[t]o achieve its goal of deterring unfair business practices in an expeditious manner, the Legislature limited the scope of the remedies available under the UCL. 'A UCL action is equitable in nature; damages cannot be recovered. [Citation.] . . . "[P]revailing plaintiffs are generally limited to injunctive relief and restitution." [Citation.]'" (In re Tobacco II Cases, supra, 46 Cal.4th at p. 312.)
In his opening brief, plaintiff acknowledges that he cannot recover damages for defendant's alleged violation of the UCL, but argues he sufficiently alleged proper relief by requesting "[a]ny other relief which shall be proper under the circumstances." He also argues he would be entitled to injunctive relief and restitution under the UCL.
Business and Professions Code section 17203 provides that the court may make "such orders . . . as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person . . . any money or property, real or personal, which may have been acquired by means of such unfair competition." (See Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 694.) The amended complaint does not allege that defendant acquired any money or property as a result of the conduct that plaintiff argues constitutes an unfair business practice under the UCL that would support a restitution award. Plaintiff does not argue that the amended complaint could be modified to correct this omission.
The California Supreme Court has stated that the purpose of injunctive relief in the context of an action under the UCL "is to protect California's consumers against unfair business practices by stopping such practices in their tracks. An injunction would not serve the purpose of prevention of future harm if only those who had already been injured by the practice were entitled to that relief. Indeed, '[a]n injunction should be not be granted as punishment for past acts where it is unlikely that they will recur.'" (In re Tobacco II Cases, supra, 46 Cal.4th at p. 320.) As discussed ante, nothing in the amended complaint shows defendant's alleged conduct is likely to recur, much less that any conduct by defendant threatened to deceive the public in the future.
The trial court therefore did not err by sustaining defendant's demurrer to the unfair competition claim without leave to amend.
IV.
THE BREACH OF CONTRACT CLAIMS
"[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Where a written contract is attached to and incorporated by reference in a complaint, and the complaint does not allege that the terms have any special meaning, the court must "'construe the language of the contract on its face to determine whether, as a matter of law, the contract is reasonably subject to a construction sufficient to sustain a cause of action for breach.' [Citation.]" (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.)
The amended complaint contains two claims for breach of contract against defendant. For the reasons explained post, we conclude the trial court did not err by sustaining without leave to amend the breach of contract claim based on allegations of a written agreement to install the washing machine. The trial court, however, erred by sustaining the demurrer to the breach of the restoration contract claim, which was based on allegations defendant failed to ameliorate the damages plaintiff suffered as a result of the faulty installation.
A.
Plaintiff's Claim Defendant Breached the Parties' Written Sales Contract
Plaintiff alleges defendant breached the parties' written contract which required defendant to properly install the washing machine plaintiff purchased from defendant through plaintiff's agent, Boltz. That written contract is referred to in the amended complaint as the "Sales Contract." The amended complaint further states that a copy of the sales contract "is attached hereto as Exhibit 1, except that handwritten statements and facsimile transmission information [appearing on that document] are not a part of the Sales Contract." The single-page document attached to the amended complaint appears to be an invoice memorializing Boltz's use of a Visa credit card on July 24, 2004 to purchase a washing machine from defendant for the amount of $511.81. It also appears to reflect a promised delivery date of July 25, 2004. The document is silent regarding the installation of the washing machine.
Although the amended complaint alleges defendant had agreed in the sales contract to install the washing machine "in a proper, safe and complete manner," the attached sales contract does not refer at all to installation, much less reflect the parties' agreement regarding installation. Therefore, contrary to the allegation contained in the amended complaint, the sales contract does not include terms regarding the installation of the washing machine.
Plaintiff does not argue the existence of any other written contract between the parties as to the installation of the washing machine, which would support a claim. To the extent plaintiff purports to state a claim for breach of a written contract, he has failed to state such a claim.
We observe the amended complaint alleges the sales contract was in written form; no allegations state that there was ever an oral agreement regarding defendant's installation of the washing machine. Plaintiff does not argue that he should have been permitted to modify the amended complaint to allege breach of an oral contract. This might be explained by the two-year statute of limitations that generally applies to claims for breach of an oral contract. (See Code Civ. Proc. § 339, subd. 1 [subject to certain exceptions, an action on "a contract, obligation or liability not founded upon an instrument in writing" must be commenced within two years after accrual].) It is likely the statute of limitations as to any claim defendant breached an oral contract to properly install the washing machine expired in July 2006—a little less than two years before the complaint in this action was filed.
In light of the foregoing, the trial court did not err by sustaining defendant's demurrer to the breach of a written contract claim based on the alleged faulty installation of the washing machine.
B.
Plaintiff's Claim Defendant Breached the Restoration Contract
The breach of the restoration contract cause of action in the amended complaint is based on the allegation that defendant's agent, Mikuta, "confirmed, orally and in writing[,] that Defendant Howard's would be responsible for reimbursing Plaintiff for the cost involved in restoration, repair and/or replacement of his premises and property resulting from the flooding, and immediately thereafter, emergency containment services were provided to the Premises by contractors engaged by Plaintiff Adam. The written agreement ('the Restoration Contract') is attached as Exhibit 1, including all handwritten portions of it." The amended complaint further alleges defendant's "offer in the Restoration Contract was accepted by Plaintiff, who, in consideration therefore, agreed to refrain from engaging in restoration or repair of his property without permitting Defendant Howard's to approve of such actions or contractors prior to any such services being performed."
The same single-page document attached to the amended complaint as Exhibit 1 contains the following handwritten notes that purport to constitute the restoration contract alleged in the body of the amended complaint: "Del men—broke water valve [¶] Major water leak. Water was running for 30 minutes before water company shut this off. Customer Russ Boltz requested: Plumber to fix the valve and water damage restoration company. The customer was advised to arrange these kinds of measures and informed that he will be reimbursed for cost involved." The name "Chris Mikuta" and the date "07.25.04" follow the above quoted handwritten notes.
The portion of exhibit 1 relating to restoration can reasonably be construed to show defendant's written agreement, in response to plaintiff's request, to assume responsibility for reimbursing plaintiff for the cost involved in the "restoration, repair and/or replacement of his premises and property resulting from the flooding." In addition, the amended complaint alleged defendant, through its agent, Mikuta, offered not only in writing, but also orally, to reimburse plaintiff (through his agent, Boltz) for his restoration, repair, and replacement costs incurred as a result of the faulty installation of the washing machine. It further alleges plaintiff accepted defendant's offer and, in exchange, plaintiff agreed to obtain defendant's approval before "engaging in restoration or repair of his property."
Assuming the truth of the pleaded factual allegations and facts that reasonably can be inferred from those expressly pleaded, we conclude plaintiff has alleged sufficient facts to state a claim for breach of the restoration contract.
DISPOSITION
The order sustaining defendant's demurrer is affirmed with the sole exception that we reverse the portion of the order sustaining the demurrer to the breach of the restoration contract claim. As each party prevailed in part, no party shall recover costs on appeal.
FYBEL, J. WE CONCUR: RYLAARSDAM, ACTING P. J. ARONSON, J.