Judge Bruce G. Iwasaki

Department 58

Hearing Date: May 16, 2024

Case Name: Mike Speer v. Jim Bunch, et al.

Case No.: 24STCV01913

Matter: Demurrer (No Strike)

Moving Party: Defendants James Bunch and Todd Murphy

Responding Party: Plaintiff Mike Speer

Tentative Ruling: The Demurrer to the First Amended Complaint is sustained in part and overruled in part.

This is an action for breach of contract. On March 12, 2024, Plaintiff Mike Speer filed the operative First Amended Complaint (FAC) against defendants Jim Bunch, Todd Murphy (together Defendants), and Does 1-30 alleging four causes of action for (1) breach of contract, (2) materials furnished, (3) account stated, and (4) unjust enrichment.

The FAC alleges the following: On or about April 11, 2022, the parties entered into a written contract for the renovation of the residential house located at 1009 Crestview, Glendale, CA 91202 (the Property). (FAC ¶ 9, Exh. 1.) Plaintiff completed work on the Property as set out in the contract and requested payment. (FAC ¶¶ 11-12.) Defendants have refused to pay the amounts due under the contract. (FAC ¶ 13.)

Defendants now demur to the second, third, and fourth causes of action in the FAC. Plaintiffs filed an opposition. As of May 14, no reply has been filed.

The Court overrules the demurrer as to the second and third causes of action. The Court sustains the demurrer as to the fourth cause of action, with leave to amend.

Legal Standard for Demurrers

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.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Second Cause of Action – Value of Materials Furnished

A cause of action for reasonable value of material furnished is a type of common count. (See Utility Audit Co. v. City of L. A. (2003) 112 Cal.App.4th 950, 958.) A common count is proper whenever plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services or goods furnished. It makes no difference that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract. (Id.) The only essential allegations of a common count, such as a claim for reasonable value of materials furnished, are: (1) defendant is indebted to plaintiff in a certain sum amount; (2) for goods sold and delivered to defendant or services rendered; and (3) nonpayment. (See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; see also Allen v. Powell (1967) 248 Cal.App.2d 502, 510; Johnson v. Dixon Farms Co. (1915) 29 Cal. App. 52, 53-55; see CACI 371.)

Plaintiff’s second cause of action is based on the following allegations: (1) Defendants became indebted to Plaintiff for the reasonable value of equipment and materials furnished by Plaintiff at Defendants’ request, and (2) no portion of the amount due has been paid to Plaintiff. The FAC contains all the elements of a common count.

Defendants demur to this cause of action on the ground that it simply restyles the first cause of action for breach of contract by pleading a similar theory of recovery, but under an implied contract rather than an express contract. It is true that common counts cannot be maintained where there is an express contract. (4 Witkin, Cal. Proc. 5th (2008) Plead, §555, p. 683.) However, at the pleading stage, a Plaintiff may set forth different – and even inconsistent – legal theories. “It is well established that “a party may plead in the alternative and may make inconsistent allegations.”” (Third Eye Blind, Inc. v. Near N. Ent. Ins. Servs., LLC (2005) 127 Cal. App. 4th 1311, 1323, citing Adams v. Paul (1995) 11 Cal.4th 583, 593 and Crowley v. Katleman (1994) 8 Cal.4th 666, 690–691.) Accordingly, Defendants’ demurrer to the second cause of action is overruled.

Third Cause of Action – Account Stated

“An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. [Citation.] When the account is assented to, ‘“it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. …”’” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787; Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 725 [“‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’”]; see CACI 373.)

Plaintiff’s second cause of action is based on the following allegations: (1) an account was stated between the parties, wherein and whereby it was agreed that Defendants were indebted to Plaintiff in the sum of $20,000.00, (2) no portion of the sum has been paid to Plaintiff, and (3) there is now due, owing and unpaid the sum of $20,000.00 plus interest.

Defendants demur to the third cause of action on the ground that Plaintiff failed to allege that he formed a new agreement with Defendants independent of the express contract. However, the FAC expressly alleges that “an account was stated between the parties.” (FAC ¶ 22.) Accordingly, Defendants’ demurrer to the third cause of action is overruled.

Fourth Cause of Action – Unjust enrichment

The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769.) Notably, “[u]njust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies.” (Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.)

Defendants demur to the fourth cause of action on the ground that there is no cause of action for unjust enrichment. The Court notes that while Plaintiff cited cases recognizing an unjust enrichment claim under California law, the more recent case of Rutherford Holdings, supra, confirms that unjust enrichment is not a cause of action in California.

Accordingly, Defendants’ demurrer to the fourth cause of action is sustained with leave to amend.

Conclusion

The demurrer is overruled in part and sustained in part. The demurrer is overruled as to the second and third causes of action. The demurrer is sustained as to the fourth cause of action. Plaintiff shall have leave to amend. The amended complaint shall be served and filed on or before June 17, 2024.