Case Number: 16K03224 Hearing Date: January 03, 2017 Dept: 77

Defendant Shaghal Ltd.’s demurrers to the second and fourth causes of action are OVERRULED. Defendant’s demurrers to the third and fifth causes of action are SUSTAINED without leave to amend.

Background

Plaintiff filed the complaint in the instant action on March 25, 2016. Defendant filed a demurrer to the complaint on June 20, 2016. Plaintiff filed a first amended complaint on August 2, 2016. Defendant filed the instant demurrer to the first amended complaint on August 29, 2016. On November 30, 2016, Defendant filed a notice of rescheduling of the demurrer, noting the hearing on the instant demurrer had been rescheduled from December 29, 2016 to January 3, 2017. Plaintiff filed an opposition on December 19, 2016.

Discussion

The Court finds Defendant has satisfied the meet and confer requirements pursuant to CCP section 430.41.

Common Counts Based on Express Contract

Defendant contends that Plaintiff’s second, third, fourth, and fifth causes of action based on common counts do not state facts sufficient to constitute causes of action and thus must be sustained without leave to amend. Defendant contends common counts based on express contracts are improper where the contract is open and unexecuted and not rescinded by mutual consent and there are no allegations that the written agreement is invalid or unenforceable.

The Court finds that while Defendant is correct that a common count will not support an action based on an express contract, this is merely the general rule. (See Lucy v. Lucy (1937) 22 Cal.App.2d 629, 631-32.) An exception to this general rule is when the plaintiff has fully performed the contract and the defendant’s payment is the only remaining part of the contract. (See id. at 632; see also Carnation Co. v. Marcevich (1960) 186 Cal.App.2d 618, 620.) In these circumstances, the plaintiff may allege common count causes of action. (See Carnation Co., supra, 186 Cal.App.2d at 620; Lucy, supra, 22 Cal.App.2d at 632.)

Here, Plaintiff alleges a written contract in its first cause of action for breach of contract. Plaintiff also alleges that it fully performed its obligations under the contract and that Defendant has refused to pay. (See First Amended Complaint (“FAC”), ¶¶ 12, 17.) As such, Plaintiff may allege common counts in the instant action.

Accordingly, Defendant’s demurrer to the second, third, fourth, and fifth causes of action on these grounds is overruled.

C/A 2: Account Stated

Defendant also demurs to the second cause of action for account stated on grounds that it fails to allege sufficient facts to constitute a cause of action.

“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; [and] (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600; see CACI 373.)

Here, Plaintiff alleges the parties entered into a written agreement where Defendant agreed to retain Plaintiff at a discounted introductory hourly rate of $180.00 for legal services. (See FAC, ¶¶ 10, 15, 19.) Plaintiff alleges that it submitted regular billing statements and invoices to Defendant detailing the legal fees for services rendered and cost incurred by Plaintiff. (See id., ¶ 20.) The Court finds these allegations are sufficient to establish a debtor/creditor relationship, agreement between the parties, and a promise by Defendant to pay the amount due.

The Court is not persuaded by Defendant’s argument that the allegation regarding Defendant’s refusal to pay means that Defendant is disputing the account and has never agreed on the balance allegedly owed. This allegation merely establishes that Plaintiff was damaged by Defendant’s refusal to pay the amount due. Furthermore, as discussed, Plaintiff alleges Defendant agreed to pay the hourly rate of $180.00 for legal services.

Accordingly, Defendant’s demurrer to the second cause of action is overruled.

C/A 3: Services Rendered

Defendant demurs to the third cause of action for services rendered on the grounds that it is duplicative of the fourth cause of action for quantum meruit.

A demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) Here, the gravamen of Plaintiff’s allegations for the third cause of action for services rendered are that Plaintiff performed legal services and incurred costs for Defendant, that Defendant promised to pay for the legal services and costs incurred at Defendant’s request, and that Defendant refused to pay the reasonable value for the legal services rendered and costs incurred. (See FAC, ¶¶ 24-27.) These are the same allegations alleged in Plaintiff’s fourth cause of action for quantum meruit. (See id., ¶¶ 29-32.) Furthermore, the elements of both a services rendered cause of action and quantum meruit cause of action are the plaintiff’s performance of services for the defendant at the defendant’s request, the defendant’s failure to pay for the services, and the services were provided at a reasonable value. (See Chodos v. Borman (2014) 227 Cal.App.4th 76, 96-97 (quatum meruit); Haggerty v. Warner (1953) 115 Cal.App.2d 468, 475 (quantum meruit); Leoni v. Delany (1948) 83 Cal.App.2d 303, 309 (services rendered); CACI 371 (services rendered).) As such, the third and fourth causes of action are duplicative and the demurrer to the third cause of action may be sustained.

The Court is not persuaded by Plaintiff’s contention that the third and fourth causes of action are not duplicative. Although the Rodrigues Court did find that the plaintiff’s fifth cause of action contained all the allegations of each of the preceding four alleged causes and thus found the demurrer was properly sustained as there is no authority for a pleading of that type (see Rodrigues, supra, 87 Cal.App.3d at 498, 501), the Court also found that the allegations added nothing to the complaint by way of fact or theory of recovery. As discussed, both the services rendered and quantum meruit causes of action are based upon the same elements and allegations, which make them duplicative of each other and adds nothing to the complaint. Furthermore, the Parth Court has found that this Court has recognized duplicative causes of action as a basis for sustaining a demurrer.

Accordingly, Defendant’s demurrer to the third cause of action is sustained without leave to amend.

C/A 4: Quantum Meruit

The Court finds that Defendant only sets forth arguments for sustaining the fourth cause of action on grounds that common counts based on express contracts are improper. As discussed, common count causes of action are proper here. As such, Defendant’s demurrer to the fourth cause of action is overruled.

C/A 5: Unjust Enrichment

Defendant demurs to the fifth cause of action for unjust enrichment on grounds that no such cause of action exists in California. The Court finds this argument meritorious. In California, there is no cause of action for unjust enrichment. (See Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138.) The Court notes that while Plaintiff cites cases recognizing an unjust enrichment claim under California law, the more recent cases of Rutherford Holdings and Levine have confirmed that unjust enrichment is not a cause of action in California. As such, Defendant’s demurrer to the fifth cause of action is sustained without leave to amend.

Defendant/Moving party to give notice.