Judge: Curtis A. Kin, Case: 22STCV31416, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV31416    Hearing Date: April 20, 2023    Dept: 72

DEMURRER

Date:           4/20/23 (9:30 AM)                 

Case:          America Best Construction Inc. v. Cherie Chen (22STCV31416)

TENTATIVE RULING:

Defendant Cherie Chen’s Demurrer to Complaint is SUSTAINED.

Defendant Cherie Chen demurs to the third cause of action for money had and received on the ground that plaintiff America Best Construction Inc.’s contract-based causes of action bar plaintiff from asserting a quasi-contract or common count claim. Common counts, like money had and received, are pled in quasi-contract. (Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 376; CACI 370 [describing money had and received as common count].)

“A plaintiff may not…pursue or recover on a quasi-contract claim if the parties have an enforceable agreement regarding a particular subject matter.” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.) “[A]s a matter of law, a quasi-contract action…does not lie where, as here, express binding agreements exist and define the parties’ rights.” (California Medical Ass'n, Inc. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 172.)

Plaintiff maintains that it can plead inconsistent theories of liability. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1223, aff'd (2018) 4 Cal.5th 637.) However, plaintiff never alleges the absence of an enforceable agreement, which would entitle plaintiff to pursue the quasi-contractual claim of money had and received. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389, citing California Medical Association v. Aetna U.S. Healthcare of California (2001) 94 Cal.App.4th 151, 173-74 [“plaintiffs' breach of contract claim pleaded the existence of an enforceable agreement and their unjust enrichment claim did not deny the existence or enforceability of that agreement. Plaintiffs are therefore precluded from asserting a quasi-contract claim under the theory of unjust enrichment”].) Instead, plaintiff alleges that the oral and written contracts upon which defendant’s obligation to pay is alleged are enforceable. (Compl. ¶¶ 12-15, 17-23.) Accordingly, as pled, the contracts, not any quasi-contractual right to recovery, govern the parties’ rights and plaintiff’s entitlement to relief.

The demurrer to the third cause of action is SUSTAINED. 

Ten (10) days to amend the third cause of action.