Case Name: Yen Thi Vu v. Tanya Thi Phuong Nguyen, et al.

Case No.: 1-14-CV-273904

Demurrer by Defendant Tanya Nguyen to Complaint of Plaintiff Yen Thi Vu

Defendant Tanya Thi Phuong Nguyenis the daughter of Plaintiff Yen Thi Vu. (Complaint, ¶7.) Since June 1992, Vu entrusted Nguyen with receiving monthly SSA checks and keeping the money, a total of approximately $60,000, for Vu. (Complaint, ¶8.) Since 1992, Vu also entrusted Nguyen with an additional $14,000. (Complaint, ¶9.) On or about August 15, 2014, Nguyen received $8,000 from the life insurance of Uyen Van Nguyen which was intended for Vu. (Complaint, ¶10.) Vu made several requests to Nguyen to return the money, without success. (Complaint, ¶12.)

On December 2, 2014, Vu filed a complaint against Nguyen, asserting causes of action for:

(1) Breach of Oral Contract
(2) Breach of Implied Covenant of Good Faith and Fair Dealing
(3) Intentional Misrepresentation
(4) Fraud – Promise without Intent to Perform
(5) Unjust Enrichment
(6) Conversion

On January 9, 2015, Nguyen filed the motion now before the court: a demurrer to Vu’s complaint.

DISCUSSION

I. Nguyen’s demurrer to the first cause of action for breach of oral contract is SUSTAINED.

“The statement of a cause of action for breach of contract requires a pleading of (a) the contract; (b) plaintiff’s performance or excuse for nonperformance; (c) defendant’s breach; and (d) damage to plaintiff.” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §482, p. 574; see also Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

Initially, Nguyen demurs to the breach of contract cause of action on the ground that the terms upon which Vu bases her claim are unclear or vague and that Nguyen cannot determine what performance is required of her or how she breached. In relevant part, the allegations state: “Defendant accepted the entrusted responsibilities to collect SSA payments, the cash and the life insurance and keep the monies for Plaintiff. Defendant agreed and promised Plaintiff that she would return such sums upon demand. … Defendant has breached the oral contract by refusing to return the afore-mentioned sums upon multiple requests by Plaintiff.” (Complaint, ¶¶14, 15, and 17.) These allegations adequately apprise Nguyen of the relevant terms and breach.

Nguyen also demurs on the ground that “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., §430.10, subd. (g).) However, the complaint alleges an oral agreement. (See Complaint, ¶16.)

Nguyen further contends that Vu must allege contract formation including acceptance and consideration and that Vu has not done so. At paragraph 15, Vu has adequately alleged Defendant Nguyen’s acceptance: “Defendant agreed…”

Where the contract is written, consideration is presumed. (See Civ. Code, §1614—“A written instrument is presumptive evidence of a consideration.”) However, the statutory presumption of consideration does not apply to an oral contract. “In an action on an oral agreement, the essential element of consideration must normally be alleged.” (See 4 Witkin, California Procedure (5th ed. 2010) Pleading, §525 citing Acheson v. Western Union Tel. Co. (1892) 96 Cal. 641, 644.) In opposition, Vu fails to address this deficiency.

On that basis, Nguyen’s demurrer to the first cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of oral contract is SUSTAINED with 10 days’ leave to amend.

II. Nguyen’s demurrer to the second cause of action for breach of implied covenant of good faith and fair dealing is SUSTAINED.

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Rest.2d Contracts, §205.) “There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658; see also CACI, No. 325.)

Nguyen demurs to the second cause of action by arguing that Vu has not adequately stated the existence of a contract on which to base a claim for breach of implied covenant of good faith and fair dealing. In view of the court’s ruling above, Nguyen’s demurrer to the second cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of implied covenant of good faith and fair dealing is SUSTAINED with 10 days’ leave to amend.

III. Nguyen’s demurrer to the third and fourth causes of action for intentional misrepresentation and promise without intent to perform is OVERRULED.

Nguyen demurs to the third and fourth causes of action by arguing that the two claims are based on the same allegations for breach of contract and do not state claims for intentional tort.

“Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 482.) “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.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 482.)

Here, Vu has adequately alleged that Nguyen intended to defraud and did not have the intent to perform her promise when made. (See Complaint, ¶¶27, 29, and 35.) “Intent, like knowledge, is a fact. Hence, the averment that the representation was made with the intent to deceive the plaintiff, or any other general allegation with similar purport, is sufficient.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §684, p. 143.)

Accordingly, Nguyen’s demurrer to the third and fourth causes of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional misrepresentation and promise without intent to perform, respectively, is OVERRULED.

IV. Nguyen’s demurrer to the fifth cause of action for unjust enrichment is OVERRULED.

In Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, the court wrote, “…[T]here is no cause of action in California for unjust enrichment. ‘The phrase “Unjust Enrichment” does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.’ [Citations.] Unjust enrichment is ‘“a general principle, underlying various legal doctrines and remedies,”’ rather than a remedy itself. [Citation.] It is synonymous with restitution.”

In McBride v. Houghton (2004) 123 Cal.App.4th 379 (McBride), the court wrote: “Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution. Unjust enrichment has also been characterized as describing the result of a failure to make restitution. [¶] In reviewing a judgment of dismissal following the sustaining of a general demurrer, we ignore erroneous or confusing labels if the complaint pleads facts which would entitle the plaintiff to relief. Thus, we must look to the actual gravamen of [plaintiff’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 [plaintiff’s] purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.”

There are several potential bases for a cause of action seeking restitution. For example, 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. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as “waiving the tort and suing in assumpsit”). [Citation.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties’ intent, in order to avoid unjust enrichment. [Citation.]

(McBride, supra, 123 Cal.App.4th at pp. 387 – 388; internal citations and punctuation omitted.)

Significantly, “there is no particular form of pleading necessary to invoke the doctrine of restitution.” (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315 [internal quotation marks omitted].) As the McBride court instructs, the court should overlook the labels given by the plaintiff and instead focus on whether there is a basis for restitution.

Here, the complaint states a valid claim for intentional misrepresentation and/or promise without intent to perform. Accordingly, Nguyen’s demurrer to the fifth cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unjust enrichment is OVERRULED.

V. Nguyen’s demurrer to the sixth cause of action for conversion is OVERRULED.

To state a cause of action for conversion, a plaintiff must allege the following elements: “(1) Plaintiff’s ownership or right to possession of tangible property at the time of the conversion; (2) Defendant’s conversion (wrongful taking or disposition); [and] (3) Damages.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §660, p. 116.) “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451 (Farmers).) “Money can be the subject of an action for conversion if a specific sum is capable of identification is involved. Neither legal title nor absolute ownership of the property is necessary. A party need only allege it is ‘entitled to immediate possession at the time of conversion.’ However, a mere contractual right of payment, without more will not suffice.” (Farmers, supra, 53 Cal.App.4th at pp. 451 – 452.)

Nguyen contends that Vu has not adequately pleaded “wrongful disposition” of Vu’s money. However,Vu has alleged Nguyen wrongfully refused to return money belonging to Vu. (See Complaint, ¶¶12 and 42.) Accordingly, Nguyen’s demurrer to the sixth cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for conversion is OVERRULED.