Case Number: 19STLC04344 Hearing Date: February 06, 2020 Dept: 25

DEMURRER

(CCP § 430.31, et seq.)

TENTATIVE RULING:

Defendant Teresa P. Caldwell’s Demurrer is SUSTAINED with 20 days’ leave to amend as to the first, second and third causes of action and is SUSTAINED without leave to amend as to the fourth cause of action. The Demurrer as to the fifth cause of action is MOOT.

I. Background

On May 3, 2019, Plaintiff Pacifica Tile and Stone Inc. (“Plaintiff”) filed an action for breach of contract, breach of the covenant of good faith and fair dealing, quantum meruit, unjust enrichment, and for foreclosure of mechanic’s lien against Defendant Teresa P. Caldwell (“Defendant”).

On July 2, 2019, Defendant filed the instant Demurrer to Complaint of Pacifica Stone and Tile, Incorporated (the “Demurrer”). On August 14, 2019, Plaintiff filed an Opposition and on August 23, 2019, Defendant filed a Reply.

On October 23, 2019, Plaintiff dismissed the fifth cause of action for foreclosure of mechanic’s lien.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] 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.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Discussion

As an initial matter, the Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Demurrer, Ralidis Decl., ¶ 3.)

Defendant demurs to the first, second, third, fourth, and fifth causes of action on the basis that they fail to aver sufficient facts to state a cause of action under Code of Civil Procedure section 430.10 subdivision (e) and on the basis that they are uncertain and ambiguous under Code of Civil Procedure 430.10, subdivision (f).

Special Demurrer

“A party may demur to a complaint or cross-complaint on the ground that it does not state facts sufficient to constitute a cause of action [CCP §¿430.10(e)]. This is known as a “general” demurrer, while all other grounds for demurrer listed under CCP §¿430.10 are referred to as “special” demurrers.” (1 MB Practice Guide: CA Pretrial Civil Procedure, § 11.08.) Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Thus, this Court does not have jurisdiction to hear Defendant’s demurrer on the ground of uncertainty.

Plaintiff’s Untimeliness Argument

In its opposition, Plaintiff argues that although it granted Defendant a 7-day extension to file a responsive pleading to the Complaint on June 25, 2019, the demurrer was untimely. Plaintiff notes the extension was granted after the initial 30-day period to file a responsive pleading had lapsed. (Oppo., p. 3:1-5.) Accordingly, it argues that any responsive pleading must have been filed by June 7, 2019, thirty days after the Complaint was personally served on Defendant on May 7, 2019. (Id., p. 2:6-28, Exh. A.)

Defendant filed the instant demurrer beyond the time allowed in Code of Civil Procedure section 430.40, subdivision (a). However, a trial court has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.) Given that Plaintiff did not raise this issue when the parties met and conferred on June 25 and that Plaintiff proceeded to grant an extension, the Court exercises its discretion to consider the Demurrer.

Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

Here, Plaintiff alleges little more than conclusions. Specifically, Plaintiff alleges that the parties “entered into a contract” for construction services (Comp., ¶¶ 5, 9), that Plaintiff “materially performed” the construction services (Id., ¶¶ 6, 9), and that Defendant “breached the contract” (Id., ¶ 9.) However, Plaintiff does not plead facts demonstrating the parties entered into a contract, such as when the parties entered into a contract, whether the contract was written or oral, what the basic terms of the contract were, nor does it attach a copy of the contract if in writing. In addition, Plaintiff does not allege facts that demonstrate it “materially performed” under the contract. It merely asserts that it did so.

Thus, Defendant’s demurrer as to the first cause of action is SUSTAINED with 20 days’ leave to amend.

Breach of the Covenant of Good Faith and Fair Dealing

“The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. [Citation.]” (Thrifty Payless, Inc. v. The Americana at Brand LLC (2013) 218 Cal.App.4th 1230, 1244.) “In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Racine & Laramie, Ltd. v. Dept. of Parks & Rec. (1992) 11 Cal.App.4th 1026, 1031.) The covenant also requires that the parties do everything the contract presupposes the party will do to accomplish the agreement’s purposes.” (Thrifty Payless, Inc., supra, at p. 1244.) “A breach of the implied covenant of good faith is a breach of the contract [citation] and ‘breach of a specific provision of the contract is not necessary’ to a claim for breach of the implied covenant of good faith and fair dealing. [Citation.]” (Ibid.)

As discussed above, Plaintiff has not plead sufficient facts to establish that a contract existed between the parties. As such, Defendant’s demurrer as to the second cause of action is SUSTAINED with 20 days’ leave to amend.

Quantum Meruit

“Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458.) A cause of action for a quantum meruit requires that “(1) the plaintiff acted pursuant to ‘an explicit or implicit request for the service’ by the defendant and (2) the services conferred a benefit on the defendant.” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance Co. (2018) 24 Cal.App.5th 153, 180.)

Here, Plaintiff does not allege sufficient facts regarding the services it provided to Defendant. Plaintiff also does not allege that the services it allegedly provided conferred a benefit on Defendant.

Thus, Defendant’s demurrer as to the third cause of action is SUSTAINED with 20 days’ leave to amend.

Unjust Enrichment

Unjust enrichment is not a cause of action. (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) Rather, unjust enrichment is a “general principle, underlying various legal doctrines and remedies” and is “synonymous with restitution.” (McBride v. Boughton (2004) 13 Cal.App.4th 379, 387; see also Levine v. Blue Shield of California (2010) Cal.App.4th 1117, 1138.) Restitution can be awarded in lieu of damages when an express contract exists but is void because it was procured by fraud or is unenforceable for some other reason or was rescinded. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 233 Cal.App.4th 221, 231.) “A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of a contract.” (Ibid.)

Because restitution is a remedy and not a cause of action, Defendant’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.

Foreclosure of Mechanic’s Lien

Because Plaintiff dismissed the mechanic’s lien cause of action on October 23, 2019, Defendant’s demurrer as to the fifth cause of action is MOOT.

IV. Conclusion & Order

For the foregoing reasons, Defendant Teresa P. Caldwell’s Demurrer is SUSTAINED with 20 days’ leave to amend as to the first, second and third causes of action and is SUSTAINED without leave to amend as to the fourth cause of action. The Demurrer as to the fifth cause of action is MOOT.

Moving party is ordered to give notice.