Case Number: BC685888 Hearing Date: February 23, 2018 Dept: 47

Honest Plumbing & Rooter, Inc. v. Yvonne Reiter, et l.

(1) DEMURRER TO COMPLAINT;

(2) MOTION TO STRIKE

MOVING PARTY: (1) & (2) Defendants Yvonne Reiter and Christopher Larkins

RESPONDING PARTY(S): (1) & (2) No oppositions filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants have failed to pay $7,000 for plumbing services and materials provided to Defendants’ property.

Yvonne Reiter and Christopher Larkins demur to the Complaint and move to strike portions thereof.

TENTATIVE RULING:

Defendants Yvonne Reiter and Christopher Larkins’s demurrer to the Complaint is SUSTAINED with leave to amend as to the first, third and fifth causes of action and without leave to amend as to the second, fourth, sixth and seventh causes of action.

Plaintiff is given 20 days leave to amend.

In light of the ruling on the demurrer, the motion to strike is MOOT.

DISCUSSION

Demurrer

Meet and Confer

The Declaration of Robert C. Adler reflects that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).

Analysis

1. First Cause of Action (Breach of Contract).

Although older case law states that “[i]f the action is based on an alleged breach of a written contract, 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 Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 458-459), the modern view is to permit a plaintiff to plead the legal effect of a written contract rather than its precise language:

The Wise court stated, “where a written instrument is the foundation of a cause of action, it may be pleaded in haec verba by attaching a copy as an exhibit and incorporating it by proper reference.” (Wise, at p. 59.) It is readily apparent that the Otworth court read more into that statement than is actually there. The Wise court was simply stating one available method of pleading the contract—it was not specifying the exclusive means of pleading a contract. The correct rule is that “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 [126 Cal. Rptr. 2d 908, 57 P.3d 372].) Because it is apparent that the Otworth court misread Wise , and because, in any event, we are bound by our Supreme Court, we decline to follow Otworth. Accordingly, plaintiff’s failure either to attach or to set out verbatim the terms of the contract was not fatal to his breach of contract cause of action.

Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.

Here, ¶ 9 alleges that the parties entered into a written agreement for plumbing services and materials to be performed and provided by Plaintiff at Defendant’s residential property, which contract is purportedly attached as Exhibit 1. However, no written contract was attached as Exhibit 1. ¶ 10 does not sufficiently plead the contract according to its legal effect, only alleging that commencing May 17, 2017, “Plaintiff performed and provided plumbing services and materials,” and that “Defendants agreed to pay $19,000 [for] certain plumbing services and materials and provided by Plaintiff at the PROPERTY described in the contract.”

Plaintiff must amend to either allege the terms of the written contract or, preferably, attach a copy of the written contract which was mistakenly omitted as Exhibit 1.

The demurrer to the first cause of action is SUSTAINED with leave to amend.

2. Second Cause of Action (Quantum Meruit).

A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice. See, e.g., 1 Witkin, Summary of California Law (9th ed. 1987) Contracts, sections 12, page 47; 91, pages 122-123; 112, pages 137-138. However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation. Willman v. Gustafson (1944) 63 Cal. App. 2d 830 [147 P.2d 636] (there can be no implied promise to pay reasonable value for services when there is an express agreement to pay a fixed sum). See also 55 California Jurisprudence Third, Restitution, sections 19, page 328 et seq.; and 58, and pages 375-376 (no ground to imply payment obligation in conflict with express contract).

Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419.

Because Plaintiff has unequivocally pled the existence of an express, written contract for a fixed sum, there is no basis for quantum meruit recovery.

As such, the demurrer to the second cause of action is SUSTAINED without leave to amend.

3. Third Cause of Action (Intentional Misrepresentation) and Fifth Cause of Action (Fraud).

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. (Citations omitted.)” Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (italics omitted).

“The mere failure to carry out a promise is not a tort, and it is therefore essential, in pleading fraud consisting of a false promise, to allege the elements of fraud.” Maynes v. Angeles Mesa Land Co. (1938) 10 Cal.2d 587, 589.

Fraud must be pleaded with specificity rather than with “ ‘general and conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ” (Id. at pp. 216–217.)

West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.

Here, the third cause of action does not sufficiently plead exactly what was said, which Defendant said what to whom on behalf of Plaintiff, when and in what manner (orally or in written), and why such representation was known to be false when made.

Accordingly, the demurrer to the third and fifth causes of action is SUSTAINED with leave to amend.

4. Fourth Cause of Action (Negligent Misrepresentation).

“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Citation omitted.)” National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal. App.4th 35, 50.

Moreover, “[t]o be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts. ‘[P]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.’ (Citation omitted.)” Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal.App.4th 153, 158. There is no cause of action for a negligent false promise. Id. at 159: (“Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise.”)

Here, the fourth cause of action is essential one for a negligent false promise to pay, which is not recognized in California.

The demurrer to the fourth cause of action is SUSTAINED without leave to amend.

5. Sixth Cause of Action (Unjust Enrichment).

“The mere nonpayment for services ‘does not constitute unjust enrichment.’” (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1328–1329 [53 Cal. Rptr. 3d 494].)” Carter v. Entercom Sacramento, LLC (2013) 219 Cal.App. 4th 337, 353.

Moreover, there is no cause of action for unjust enrichment, and a quasi contract cannot lie where there exists an express contract covering the same subject matter:

“Unjust enrichment is not a cause of action, however, or even a remedy, but rather ‘ “ ‘a general principle, underlying various legal doctrines and remedies’ ” … . [Citation.] It is synonymous with restitution.’ ” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 [20 Cal. Rptr. 3d 115].) Like the trial court, we will construe the cause of action as a quasi-contract claim seeking restitution.

“[A]n action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter.” (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203 [51 Cal. Rptr. 2d 622].) However, “restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason.” (McBride v. Boughton, supra, 123 Cal.App.4th at p. 388.) Thus, a party to an express contract can assert a claim for restitution based on unjust enrichment by “alleg[ing in that cause of action] that the express contract is void or was rescinded.” (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. supra, at p. 203.) A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389 [137 Cal. Rptr. 3d 293].)

Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.

The demurrer to the sixth cause of action is SUSTAINED without leave to amend.

6. Seventh Cause of Action (Common Count).

To prevail on a common count for money had and received, the plaintiff must prove that the defendant is indebted to the plaintiff for money the defendant received for the use and benefit of the plaintiff. (Pike v. Zadig (1915) 171 Cal. 273, 276 [152 P. 923]; Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal. Rptr. 2d 707].)

Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal App.4th 221, 230.

Here, pursuant to the underlying transaction between the parties, Defendants did not allegedly receive any money. Rather, Defendants received Plaintiff’s plumbing services. As such, this common count does not lie.

The demurrer to the seventh cause of action is SUSTAINED without leave to amend.

Plaintiff is given 20 days leave to amend.

Motion To Strike

In light of the ruling on the demurrer, the motion to strike is MOOT.

Moving parties to give notice.

IT IS SO ORDERED.

Dated: February 23, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court