(Cf. Western Coal Mining v. Jones, supra, at p. 822; Buescher v. Lastar (1976) 61 Cal.App.3d 73, 75-76 [ 132 Cal.Rptr. 124].)
The trial court erred in apportioning its award of legal fees between the defense and collection aspects of the Bank's case. The Bank is entitled to the reasonable expenses incurred in the suit, during trial and on appeal ( Buescher v. Lastar (1976) 61 Cal.App.3d 73, 76 [ 132 Cal.Rptr. 124]). The reasonable value of the professional services rendered is best determined by the trial court ( Serrano v. Priest (1977) 20 Cal.3d 25, 44 [ 141 Cal.Rptr. 315, 569 P.2d 1303]).
See Miran v. Convergent Outsourcing Inc., No. 16-CV-0692-AJB-(JMA), 2016 WL 7210382, at *3 (S.D. Cal. Dec. 13, 2016) (declining to consider on summary judgment a legal theory that is not alleged in the complaint). In support of their position, the Cakebreads rely on Buescher v. Lastar, 61 Cal.App.3d 73 (1976). In Buescher, the plaintiff recovered on a demand note the defendant signed despite the expiration of the statute of limitations.
The standard, however, is not rigid, and courts have found that even informal language is sufficient, so long as it identifies the debt. See, e.g., Bronne Shirt Co. v. Matthess, 88 F. Supp. 698 (S.D. Cal. 1950); Buescher v. Lastar, 61 Cal. App. 3d 73 (1976); Hayes v. O'Marr, 81 Cal. App. 210 (1927). Importantly, "[t]he postponement of [payment] to a future time . . . does not make the acknowledgment uncertain. It merely imposes an additional condition and makes it incumbent on the plaintiff to allege and prove its existence before he can sue on the new promise and recover."
See Amos Flight Operations, Inc. v. Thunderbird Bank, 540 P.2d 1244, 1249 (Ariz. 1975); Buescher v. Lastar, 132 Cal.Rptr. 124, 126 (Cal.App. 1976); Ingle v. Perkins, 510 P.2d 480, 482 (Idaho 1973); Hollinger v. McMichael, 594 P.2d 1120, 1120-21 (Mont. 1979); Edwards v. Mesch, 763 P.2d 1169, 1172 (N.M. 1988); Management Servs. Corp. v. Development Assocs., 617 P.2d 406, 408-09 (Utah 1980); Puget Sound Mut. Sav. Bank v. Lillions, 314 P.2d 935, 940 (Wash.
Marcus Food could not reasonably believe the letter was an acknowledgment of Cold Storage's liability. Marcus Food's reliance on Buescher v. Lastar (1976) 61 Cal.App.3d 73 (Buescher), is misplaced. In Buescher, the plaintiff recovered on a demand note the defendant signed despite the expiration of the statute of limitations.
In order for a communication to constitute a valid acknowledgment under section 360, assuming (without deciding) that the section applies to open accounts, the communication must meet four criteria: (1) it must be communicated to the creditor; (2) it must be a direct, distinct, unqualified, and unconditional admission of the debt; (3) it must indicate that the party is liable for the debt and willing to pay it; and (4) it must not contain any intimation of an intent to refuse payment of the debt. Clunin v. First Federal Trust Co., 189 Cal. 248, 250-52, 207 P. 1009, 1010 (1922) (construing original 1872 version of statute; proviso added in 1947 and amended in 1955); see also Searles v. Gonzalez, 191 Cal. 426, 430, 216 P. 1003, 1004 (1923) (acknowledgment must treat "indebtedness as subsisting and one which the debtor is liable and willing to pay") ; Kurokawa v. Blum, 199 Cal App.3d 976, 245 Cal.Rptr. 463, 471 (1988) (acknowledgment must be in writing); Buescher v. Lastar, 61 Cal App.3d 73, 75-76, 132 Cal.Rptr. 124, 125-26 (1976) (acknowledgment must be unequivocal, containing no new terms or conditions). In this case, the letter was not directed to the creditor; rather, it was directed to a third party, albeit a related one. More obviously, the letter does not contain "a direct, distinct, unqualified and unconditional" admission of the debt. It states that Scott has released $200,000, which had previously been "on hold," to M+W. It goes on to say that "the balance of the purchase order funds" will be paid if M+W/M meets certain conditions.