Demurrer to Complaint (Judge Danny Y. Chou)



The unopposed Demurrer of Defendant Del Terra Real Estate Services, Inc. (Defendant) to the Complaint of Plaintiff Alum Rock Union Elementary School District (Plaintiff) is OVERRULED IN PART and SUSTAINED IN PART WITH LEAVE TO AMEND.

As a threshold matter, the Court exercises its discretion to consider the Demurrer even though Defendant filed it more than a year after being served with the Summons and Complaint. Plaintiff has not opposed the Demurrer, and therefore has not demonstrated that it will be prejudiced. (Jackson v. Doe (2011) 192 Cal. App. 4th 742, 750.)

Defendant’s Demurrer to the Sixth, Seventh, and Eighth Causes of Action based on uncertainty is OVERRULED because Defendant failed to specify how or why the pleading is uncertain or where such uncertainty appears. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of Univ. of Cal. (2002) 29 Cal.4th 300, 328, fn.30.)

Defendant’s Demurrer to the Sixth Cause of Action for Contractual Indemnity based on the failure to state a claim is OVERRULED. Defendant contends that the change order cannot serve as the basis for this cause of action. But in support of this claim, Plaintiff does not just rely on the change order. (See Compl., ¶ 146.) Plaintiff also alleges that it has incurred losses in responding to the FCMAT Extraordinary Audit and the SEC Investigation. (Id. ¶ 147.) Because a general demurrer does not lie to only a part of a cause of action, this demurrer is overruled. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.)

Defendant’s Demurrer to the Seventh Cause of Action for Unjust Enrichment based on the failure to state a claim is SUSTAINED WITH LEAVE TO AMEND. While California courts have disagreed over whether unjust enrichment is a standalone cause of action, more recent California Supreme Court cases have concluded that “unjust enrichment” is not a proper cause of action. (See, e.g., Huskinson & Brown, LLP v. Wolf (2004) 32 Cal.4th 453, 457 [no cause of action for unjust enrichment]; see also Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1369 [“[T]here is no cause of action in California for unjust enrichment …. Unjust enrichment is synonymous with restitution”]; Meixner v. Wells Fargo Bank, N.A. (E.D.Cal. 2015) 101 F.Supp.3d 938, 960-961 [citing more recent California Supreme Court cases disapproving of “unjust enrichment” as a cause of action].) Although Plaintiff could have alleged a quasi-contract claim for restitution, it has not sufficiently done so. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389–90; California Medical Assn. v. Aetna U.S. Healthcare of Cal. (2001) 94 Cal.App.4th 151.)

Defendant’s Demurrer to the Eighth Cause of Action for Money Had and Received is OVERRULED. Contrary to Defendant’s assertion, this claim is not duplicative of Plaintiff’s breach of contract claim. “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. Exch. v. Zerin (1997) 53 Cal. App. 4th 445, 460.) Plaintiff has sufficiently alleged a claim for money had and received. (See Compl., ¶¶ 46-49, 51, 76-77, 84-85, 153, 155.)

Plaintiff has 10 days from the date of service of written notice of entry of order by Defendant to file and serve a First Amended Complaint.