Spa v. Apik Jewelry

Filed 10/4/06 Spa v. Apik Jewelry CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Joanne O’Donnell, Judge. Reversed.

Robert S. Gerstein; and James P. Wohl, for Plaintiff and Appellant.

Doll Amir & Eley, and Michael M. Amir for Defendants and Respondents.

__________________________

Plaintiff Lucente S.P.A. appeals from the judgment dismissing Kevork Minassian from Lucente’s action for non-payment of a debt that Minassian allegedly guaranteed on behalf of Apik Jewelry, Inc. We hold that plaintiff adequately alleged a cause of action to enforce such a guarantee and that the court erred in sustaining Minassian’s demurrer. We therefore reverse the judgment for Minassian.

FACTS AND PROCEDURAL HISTORY

Lucente S.P.A. (Lucente), a foreign corporation located in Italy, sold approximately $1.4 million of jewelry to Apik Jewelry, Inc. (Apik). Lucente sued Apik for non-payment of that debt, and Minassian, its President, for failing to honor his alleged personal guarantee of that debt. The operative second amended complaint alleged that in August 2003, after Apik’s check for nearly $270,000 bounced, Lucente’s sales manager, Michelle Borga, phoned Minassian and asked him to issue a new check and personally guarantee payment of the full amount owed by Apik. In December 2003, Borga met with Minassian and again asked him to execute a personal guarantee. Minassian asked Borga for a statement of account and a copy of the invoices showing the amount owed. Borga did so, and they were examined by Apik’s bookkeeper, who examined them and confirmed their accuracy. Minassian then wrote on the statement of account: “I confirm you that I owe you,” and signed his name. As part of that arrangement, Lucente agreed to hold off on suing Apik immediately for the amount owed.

Minassian demurred to the only cause of action against him -- for breach of the alleged personal guarantee -- on two grounds: (1) his promise to pay Apik’s debt was not supported by consideration; and (2) his written statement, “I confirm you that I owe you,” cannot reasonably be construed as a personal guarantee of Apik’s debt. The trial court sustained the demurrer without leave to amend, entered judgment for Minassian, and dismissed him from the action.^[1] This appeal followed.^[2]

STANDARD OF REVIEW

In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiff-appellant. Regardless of the label attached to the cause of action, we must examine the complaint’s factual allegations to determine whether they state a cause of action on any available legal theory. (Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 745.) The judgment will be affirmed if it is proper on any of the grounds raised in the demurrer, even if the court did not rely on those grounds. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.)

We will not, however, assume the truth of contentions, deductions, or conclusions of fact or law and may disregard allegations that are contrary to the law or to a fact which may be judicially noticed. When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper. (Code Civ. Proc., § 430.30, subd. (a); Black v. Department of Mental Health, supra, 83 Cal.App.4th at p. 745.) We may take judicial notice of the records of a California court. (Evid. Code, § 452, subd. (d).) We must take judicial notice of the decisional and statutory law of California and the United States. (Evid. Code, § 451, subd. (a).)

DISCUSSION

1. The Complaint Adequately Alleges the Existence of a Guarantee

Minassian contends that his written statement confirming that he owed Lucente is too uncertain to constitute a guarantee. Lucente concedes that the language is ambiguous, but contends that when viewed in the context of the complaint’s allegations, it can reasonably be construed as a guarantee. (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 [if plaintiff pleads an ambiguous contract, he must plead his interpretation of the language; on demurrer, so long as that interpretation is not clearly erroneous, the court must accept it as true].) We agree.

The second amended complaint alleges that in August 2003, after Apik’s check bounced, Lucente’s sales manager, Borga asked Minassian for his “personal guarantee” of Apik’s debt. When Borga met with Minassian in December 2003, she again asked Minassian “to execute a personal guarantee.” Minassian asked Apik’s bookkeeper to confirm the amount owed, then wrote on the statement of account, “I confirm you that I owe you,” followed by his signature. Although other interpretations of this language might be possible, when viewed in the context of Lucente’s allegations (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912), it can be construed as Lucente contends: that after being asked for his personal guarantee, and in exchange for Lucente’s promise to hold off on suing Apik, Minassian’s statement expressed his agreement to guarantee Apik’s debt. Given that Apik already owed the money, Minassian’s use of the personal pronoun “I” is consistent with this interpretation.^[3]

2. The Complaint Adequately Alleges Consideration

Minassian’s demurrer contended that there was no consideration for the alleged guarantee because it concerned a preexisting debt of a third party (Apik) and lacked additional consideration. (Civ. Code, § 2792.) As we read the complaint, Minassian agreed to guarantee Apik’s debt in exchange for Lucente’s agreement to hold off suing Apik for its debt. This is sufficient consideration. (Tiffany & Co. v. Spreckels (1927) 202 Cal. 778, 789-790 [husband’s agreement to guarantee wife’s debt was procured through duress; as alternate ground for affirmance of judgment in favor of late husband’s estate, court held that there was no agreement by plaintiff to forebear collecting debt and therefore no consideration, but that if such a promise to forebear had been made, then consideration would have existed]; Beverly Hills Nat. Bank v. Glynn (1968) 267 Cal.App.2d 859, 867; Standard F. Corp. v. C. Cole, Ltd. (1935) 9 Cal.App.2d 573, 578.) We therefore hold that the trial court erred by sustaining Minassian’s demurrer.

DISPOSITION

The judgment is reversed. Appellant to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

We concur:

BOLAND, J.

FLIER, J.

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^[1] Though not in the record, it appears from respondent’s brief that demurrers were sustained with leave to amend on Lucente’s earlier pleadings based on the absence of allegations showing the guarantee was supported by consideration.

^[2] Minassian contends the judgment is not appealable because it involved only him, leaving the rest of Lucente’s action pending, and because the notice of appeal was filed before judgment was entered and relates to only the non-appealable order sustaining the demurrer. We reject both contentions. First, because the judgment removed Minassian from the action, it is final as to him and therefore appealable. (Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880.) Second, although the notice of appeal was premature because judgment had not yet been entered, we have discretion to allow the appeal from the ensuing judgment (Cal. Rules of Court, rule 2(e)(1)), and will do so here.

^[3] Minassian has raised no issues concerning the parol evidence rule and the use of extrinsic evidence to interpret the language of his written statement.