CIV538389 LEONARD DESOMMA VS. PACIFIC GAS AND ELECTRIC

PACIFIC GAS AND ELECTRIC COMPANY MARK J. HANCOCK

LEONARD B. DESOMMA GEORGE P. ESHOO

Demurrer

TENTATIVE RULING:

The Demurrer of Defendant Underground Construction Co., Inc. (“Defendant”) to the First Amended Complaint of Plaintiffs Leanord B. DeSomma and Margaret Pozzo (“Plaintiffs”) is ruled on as follows:

Demurrer to the 1st through 6th, 8th and 9th causes of action is OVERRULED as to Defendant’s argument that they are barred by the applicable statutes of limitations. The First Amended Complaint relates back to the original Complaint. Defendant fails to show on the face of the pleading, or from matters of which the court may take judicial notice, that Plaintiffs had an earlier awareness of Defendant’s identity and facts creating its liability. (See Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 179.)

Demurrer to the 8th cause of action for Restitution/Unjust Enrichment is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. Unjust enrichment is not a cause of action or a remedy, but rather a general principle underlying various legal doctrines and remedies. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387.) Unjust enrichment is also synonymous with restitution. (Id.) Plaintiffs claim that they are not asserting this as a stand-alone claim, but rather it is combined with a claim for restitution for use of the subject property. (Plaintiffs’ Opposition, 14:9-11.) To the extent Plaintiffs base it on a quasi-contract theory though, such theory of recovery is already alleged in Plaintiffs’ 9th cause of action. (See First Amended Complaint ¶¶ 59, 64.) Plaintiffs must therefore allege facts to support the legal theory for which they seek restitution/unjust enrichment.

Plaintiffs’ Request for Judicial Notice is GRANTED. (See Evid. Code § 452(d).)

Plaintiffs have twenty days from the date of the order to file and serve a Second Amended Complaint.