Case Number: 15K13484??? Hearing Date: July 25, 2016??? Dept: 77
Defendant Taek Yung Park?s Demurrer to Plaintiff?s Complaint is OVERRULED. CCP ? 430.10(e).
Initially, the court notes that special demurrers are not allowed in limited jurisdiction courts. CCP ? 92(c). As such, only the general ground for demurrer will be addressed by the court. CCP ?? 128 and 430.10(e).
There is no rigidity in the pleading requirements for breach of contract: Plaintiff must allege (1) the existence of a valid contract (2) that the defendant had knowledge of the existence of the contract and intended to induce a breach thereof (3) that the contract was in fact breached resulting in injury to plaintiff and (4) the breach and resulting injury must have been proximately caused by defendant?s unjustified or wrongful conduct. Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178; Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co (2004) 116 Cal. App. 4th 1375, 1391 n.6; Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal. App. 4th 613, 625 (addressing anticipatory breach); CACI 300. A written contract is usually pleaded by alleging its making and then setting out verbatim in the body of the Complaint or as a copy attached and incorporated by reference. Essential terms must be pled. Melican v. Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 174.
Reading the first cause of action for breach of oral contract and second cause of action for breach of written contract, all essential terms are stated. The Complaint is clear regarding the terms of the contract, the breach and the damages. Based on the allegations stated in the Complaint, plaintiff has adequately alleged that defendant breached the contract at issue. Based on the foregoing, the demurrer is overruled to the first and second causes of action for breach of contract.
The count for money had or received should state in substance that defendant is indebted to plaintiff in a certain sum; and for money had and received by the defendant for the use of plaintiff. Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460; First Interstate Bank v. State of Cal. (1987) 197 Cal.App.3d 627, 635. But see Vaughn v. Certified Life Ins. Co. (1965) 238 Cal. App. 2d 177, 181 (complaint must allege promise by defendant to pay or facts implying a promise). The count for money had and received should state in substance that 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.? In Fox v. Monahan (1908) 8 C.A. 707, the omission of the conventional phrase ?for the use of plaintiff? was held fatal as to one count; but another count was upheld where there were specific allegations showing that defendants had appropriated money due plaintiff.
Looking at the third cause of action for common count, the demurrer is also overruled. Sufficient facts are alleged to constitute a cause of action for money had and received against Defendant. CCP ? 430.10(e).
Defendant to answer within 10 days.
Moving party to give notice.