Case Name: Cheung v. Tse
Case No.: 1-13-CV-252171
After full consideration of the evidence, the separate statements submitted, the arguments and the authorities submitted by each party, the court makes the following rulings:
This is an action for breach of contract. In early September 2011, plaintiff Levania Yue Juan Cheung (“Cheung” or “Plaintiff”) offered to lend $40,000 to defendant Kent Kin Sun Tse (“Tse” or “Defendant”). (See first amended complaint (“FAC”), ¶ 10.) Defendant accepted Plaintiff’s offer, and on September 14, 2011, Plaintiff tendered the check to Defendant and it was deposited on September 23 2011. (See FAC, ¶¶ 10-11.) Defendant refuses to pay back any amount of the loan. (See FAC, ¶ 16.) On April 2, 2014, plaintiff filed a first amended complaint, asserting causes of action for: breach of oral contract; money lent; restitution; and, money had and received.
Plaintiff moves for summary adjudication of the third cause of action for restitution, and the fourth cause of action for money had and received.
Defendant also moves for judgment on the pleadings as to the third cause of action for restitution “and for monetary sanctions against Plaintiff and her attorney of record” pursuant to Code of Civil Procedure section 128.5
Defendant’s motion “for judgment on the pleadings as to Plaintiff’s third cause of action for restitution… and for monetary sanctions against Plaintiff and her attorney of record”
Defendant’s request for judicial notice in support of his motion “for judgment on the pleadings as to Plaintiff’s third cause of action for restitution… and for monetary sanctions against Plaintiff and her attorney of record” is GRANTED as to the existence of the documents. (See Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (stating that “a court “cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file… [but a] court may take judicial notice of the existence of each document in a court file”); Evid. Code § 452, subd. (d).)
Defendant moves for judgment on the pleadings as to the third cause of action for restitution on the ground that it fails to state a cause of action because Defendant asserts that “[u]njust enrichment is not a cause of action, but rather a general principle, underlying various legal doctrines and remedies.” (Def.’s memorandum of points and authorities in support of motion for judgment on the pleadings, p.3:14-27, 4:1-2.)
However, the title under which the factual basis for relief is stated is irrelevant; rather, the court needs to determine whether a cause of action alleges facts that state any cause of action under any theory. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (stating that “[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer”; also stating that the court is “not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory”) (emphasis original); see also Melton v. Boustred (2010) 183 Cal.App.4th 521, 529 (Sixth District case stating same).) Moreover, several cases do state that unjust enrichment, in fact, is a cause of action; the elements of such a claim are the receipt of a benefit and the unjust retention of that benefit at the expense of another. (See Lectrodryer v. Seoulbank (2000) 77 Cal.App.4th 723, 726 (stating that “the elements for a claim of unjust enrichment: receipt of a benefit and unjust retention of the benefit at the expense of another”); see also Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 (stating that “[t]he elements of an unjust enrichment claim are the ‘receipt of a benefit and the unjust retention of the benefit at the expense of another’”); see also Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132 (stating that “[t]he elements for a claim of unjust enrichment are ‘receipt of a benefit and unjust retention of the benefit at the expense of another’”); see also Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 (same); see also Hirsch v. Bank of America (2003) 107 Cal.App.4th 708, 717 (stating “[f]or the unjust enrichment claim, there must be ‘receipt of a benefit and unjust retention of the benefit at the expense of another’”); see also Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 857 (same).) In the case upon which Defendant relies, McBride v. Boughton (2004) 123 Cal.App.4th 379, the court indeed stated that “[u]njust enrichment is not a cause of action, however, or even a remedy, but rather ‘a general principle, underlying various legal doctrines and remedies.’” (Id. at p.387.) Nevertheless, the court continued:
…we must look to the actual gravamen of McBride’s complaint to determine what cause of action, if any, he stated, or could have stated if given leave to amend. In accordance with this principle, we construe McBride’s purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.
(Id. at pp.387-388.)
Here, the third cause of action alleges that Defendant received $40,000, used the money for home improvements and refuses to pay any of it back to Plaintiff, thereby unjustly retaining that $40,000 at Plaintiff’s expense. (See FAC, ¶¶ 26-30.) These allegations are sufficient to state a cause of action. Accordingly, Defendant’s motion for judgment on the pleadings is DENIED.
Defendant also improperly attempts to combine her motion for judgment on the pleadings with a motion for sanctions pursuant to Code of Civil Procedure section 128.5. (See Code Civ. Proc. §§ 1005, subd. (a) (requiring written notice for each of the listed motions); 438 (motion for judgment on the pleadings); 128.5 (motion for sanctions).) Although this itself is a basis to deny the motion for sanctions, the Court will address this “motion.”
A motion for sanctions pursuant to Code of Civil Procedure section 128.5 address “actions or tactics [that] arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994.” (Code Civ. Proc. § 128.5, subd. (b)(1).) Notice of a motion under section 128.5 cannot suffice as notice of a motion under section 128.7. (See Levy v. Blum (2001) 92 Cal.App.4th 625, 638 (discussing both sections 128.5 and 128.7, stating that “notice under one statute does not suffice for notice under the other”); see also Code Civ. Proc. § 128.7, subd. (c)(1) (stating that “[a] motion for sanctions under this section shall be made separately from other motions or requests”).) Moreover, Defendant does not demonstrate that sanctions in any event should be awarded. Accordingly, Defendant’s motion for sanctions pursuant to section 128.5 is likewise DENIED.
Plaintiff’s motion for summary adjudication of the third and fourth causes of action
Plaintiff’s request for judicial notice in support of her motion for summary adjudication is GRANTED. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1382, quoting Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117; see also Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (stating that “a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language… [and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document”); see also Stormedia Inc. v. Super. Ct. (Werczberger) (1999) 20 Cal.4th 449, 457, fn.9; see also Evid. Code § 452, subds. (c), (d), (h).)
Plaintiff moves for summary adjudication of the third cause of action for restitution. Plaintiff demonstrates that she gave Defendant $40,000 that went to improve Defendant’s property, and that Defendant has unjustly retained that $40,000 at the expense of Plaintiff. (See Lectrodryer v. Seoulbank (2000) 77 Cal.App.4th 723, 726 (stating that “the elements for a claim of unjust enrichment: receipt of a benefit and unjust retention of the benefit at the expense of another”).) (See Pl.’s separate statement of undisputed material facts in support of motion for summary adjudication, nos. (“UMFs”) 1-27; Cheung decl., ¶¶ 4-6; Steinfeld decl. in support of motion for summary adjudication (“Steinfeld decl.”), exhs. 1-2, 3-4 (nos. 1, 2, 5), 6-7, response to form interrogatory no. 17.1, subd.(b) (stating “[t]he check was deposited”), 8-9 (showing improvements of $44,588.17).) Plaintiff thus meets her initial burden to demonstrate that she is entitled to judgment on the third cause of action for restitution.
Plaintiff also moves for summary adjudication of the fourth cause of action for money had and received. “A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.’” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, quoting Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623; see also Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454 (Sixth District case stating same, also stating “[t]he claim is viable ‘wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter’”).) Plaintiff’s evidence also demonstrates that Defendant is indebted to Plaintiff in the amount of $40,000 and it was received by Defendant, and that equity and good conscience requires the repayment of the $40,000 to Plaintiff. Accordingly, Plaintiff also meets her initial burden to demonstrate that she is entitled to judgment on her fourth cause of action for money had and received.
Thus, the burden shifts to Defendant to show that a triable issue of one or more material facts exists as to these causes of action. (See Code Civ. Proc. § 437c, subd. (p)(1).)
Here, the majority of Defendant’s evidence is irrelevant to the issue as to the $40,000 transfer. There is no suggestion that the $40,000 was intended to be repayment of years of prior expenses, child support or rent for future months. Accordingly, Plaintiff’s objections numbers 1-25 to the Tse declaration are SUSTAINED.
However, Defendant also presents evidence that suggests that the $40,000 was a gift. (See Def.’s decl. in support of opposition to motion for summary adjudication (“Def.’s decl.”), ¶¶ 20-21.) This demonstrates that there is a triable issue of material fact as to whether Defendant unjust retained the $40,000 at the expense of Plaintiff and whether Defendant is indebted to Plaintiff. Accordingly, the motion for summary adjudication of the third and fourth causes of action is DENIED.
Plaintiff’s objections to the separate statement, numbers 1-28 are OVERRULED as statements made in a separate statement are not evidence.
In light of the above ruling, Defendant’s request for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h) is DENIED.
The Court will prepare the Order. The parties are reminded of the case management conference scheduled for Tuesday, September 16, 2014 at 10:00a.m.
Link to this page