Judge Bruce G. Iwasaki, Case 22STCV33768 2022-12-20 Tentative Ruling

Case Name: Ybanag Realty & Development Corporation dba D’Ybanag Construction Company v. Sandor Survivor Trust

Opposing Party: Unopposed / Plaintiff Ybanag Realty

Tentative Ruling: The Demurrer is sustained with 20 days leave to amend.

This is an action arising from construction services. Ybanag Realty & Development Corporation (Ybanag or Plaintiff) sues Sandor Survivor Trust (Sandor or Defendant) for breach of written contract, money had and received, account stated, and open book. Ybanag alleges that it contracted with Sandor to provide construction services including concrete, demolition, asphalt, and paving. Ybanag avers that Sandor failed to pay a total of $121,750.50 of an outstanding invoice.

Defendant demurs to the entire Complaint because a trust cannot be named as a defendant and for insufficient facts on each cause of action. Counsel’s declaration satisfies the meet-and-confer requirement. (Baradarian Decl., ¶¶ 3-4.) Plaintiff did not file an opposition.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

“A trust itself cannot sue or be sued [citation.] ‘As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust’s behalf.’ ” (Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473; see also Presta v. Tepper (2009) 179 Cal.App.4th 909, 914; Code Civ. Proc., § 369, subd. (a)(2); Prob. Code, § 18004.) “[T]he real party in interest in litigation involving a trust is always the trustee.” (Presta, supra, 179 Cal.App.4th at p. 914.)

Here, Plaintiff has named only the trust and must amend to name the trustee. Therefore, the demurrer is sustained with leave to amend as to the entire Complaint. The Court next briefly addresses the sufficiency of the allegations.

To state a claim for breach of contract, a plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff from the breach. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The allegations are sufficient here: Plaintiff alleges that it entered into an agreement with Defendant to provide construction services. (Complaint, ¶ 2.) Plaintiff performed the services. (Id. at ¶ 14.) Defendant breached by failing to pay. (Id. at ¶ 15.)

Defendant argues that Plaintiff is suing under multiple contracts. But the Court’s reading of the Complaint indicates Plaintiff is only suing on one contract: “D’Ybanag’s invoice dated July 6, 2021 in the amount of $121,750.50.”[1] If Plaintiff is seeking breaches on multiple contracts, it is granted leave to add in additional allegations as necessary.

Second through fourth causes of action - common counts – money had and received, account stated, and open book

“ ‘A common count is not a specific cause of action … ; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.’ ” (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) “‘A cause of action for money had and received is stated if it is alleged [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.’”’ [Citation.] The 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.”’” (Ibid.)

Generally, to plead common counts, a plaintiff must allege (1) indebtedness, (2) consideration (e.g., money had and received, work done, good sold), and (3) nonpayment. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.

The demurrer for insufficiency of facts here is unavailing. Courts liberally construe common count pleadings, and such counts are not normally subject to attack by general demurrer or by a special demurrer for uncertainty, unless it is based on the same allegations that support another insufficient claim. (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 793; Auckland v. Conlin (1928) 203 Cal. 776, 778; Pike v. Zadig (1867) 171 Cal. 273, 276 [“This form of pleading, a common count, by long continued practice is not subject to attack by general demurrer or by a special demurrer for uncertainty”]; Abadie v. Carrillo (1867) 32 Cal. 172, 175.)

Moreover, “[w]hen a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the specific cause of action is demurrable . . . and must stand or fall” with the specific cause of action. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395; see also Zumbrun v. Univ. of So. Cal. (1972) 25 Cal.App.3d 1,14.) Here, Plaintiff is seeking damages from a breach of contract, which would entitle it to the money that is allegedly being held by Defendant. While the Court sustains the demurrer based on the incorrect defendant being named, the breach of contract is sufficiently pled; thus, the common count allegations are also sufficient.

Defendant argues that Plaintiff is precluded from pursuing a breach of contract claim and account stated and open book. But Plaintiff is permitted to plead alternative theories of liability and even inconsistent allegations. (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565 [“A plaintiff may plead cumulative or inconsistent causes of action”].)

Defendant’s final contention that the account stated claim must specify when a balance was due is without merit. The Complaint pleads that the balance is “now due, owing and unpaid.” (Complaint, ¶¶ 20, 24, 28.)

The demurrer is sustained with 20 days leave to amend to add in the trustee as the proper defendant and supplement with additional facts if necessary. The Complaint is otherwise pleaded sufficiently.

[1] Defendant seemingly concedes that the total amount “references the amount of the original contract” so it appears Defendant is aware of which contract is at issue here.