Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises from a dispute between a homeowner and their contractor.  Defendants Moussa Naim and Laura Naim own the property located at 22435 Pacific Coast Highway, Malibu, California (the “Property”).  They suffered water damage as a result of leakage under their deck.   

According to the Complaint, Defendants hired Plaintiff G&N Construction, Inc. d/b/a Accurate Property Restoration, through their insurance carrier, Lloyds of London, to complete emergency services for water mitigation (“Water Claim”).  The parties entered into a written contract for the services.  (Ex. A to Compl.) 

While Plaintiff were doing work on the Water Claim, a fire occurred.  Due to the severity of the fire, all work related to the Water Claim halted. The total for the services rendered and completed for the Water Claim up until the day of the fire is $45,911.17.    

Defendants filed a claim relating to the fire (“Fire Claim”) with their first party insurer California FAIR Plan Association.  Defendants approved, authorized, and requested Plaintiff to proceed with fire damage mitigation pursuant to the Fire Claim.  The total for the services rendered for the Fire Claim is $106,168.14.   

Defendants refused to pay for services Plaintiff performed on the Water Claim and Fire Claim.  The total outstanding invoices amount to $156,079.31.    

The operative complaint alleges five claims for: (1) breach of contract, (2) unjust enrichment, (3) common count-open book account, (4) common count-account stated and (5) common count-goods sold and delivered. 

This hearing is on Defendants’ demurrer to and motion to strike the Complaint.  Defendants argue that (1) Plaintiff’s breach of contract claim is uncertain because it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct, and to the extent Plaintiff’s breach of contract claim is based on an oral contract, it is time-barred; and (2) the other claims, to the extent based on the “Fire Claim”, are barred by the statute of limitations.  Defendants also move to strike all claims based on the “Fire Claim” as barred by the statute of limitations.   

MEET AND CONFER   

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendants submit the Declaration of Paul M. Krueger which attests the parties met and conferred by telephone on June 20, 2024, more than five days before the demurrer and motion to strike were filed on August 6, 2024.  This satisfies the meet and confer requirements of Code Civ. Proc. §§ 430.41 and 435.5.   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Breach of Contract 

Defendants argue that Plaintiffs’ breach of contract claim is uncertain as it is unclear whether the contract for services relating to the Fire Claim is oral, written or implied by conduct.  The Court agrees. 

Plaintiff’s breach of contract claim relates to two contracts, one (relating to the Water Claim) which is clearly written and the other (relating to the Fire Claim) which is unclear as to whether it is written, oral or implied by conduct.  When an action is “founded upon a contract,” the complaint is subject to demurrer if “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10, subd. (g).)   

 Plaintiff argues that he has only alleged a single written contract that applies to both the Water Claim and the Fire Claim.  But it is not clear from the Complaint that this is so.  In fact, the Complaint refers to a “second contract.”  (Compl. at 5:19-21 (“On or around May 15, 2020, Plaintiff and Defendants entered into a second contract in which Plaintiff promised to render services to work on Defendants’ fire claim ...” (emphasis added).)       

Accordingly, the Court sustains the demurrer to the breach of contract claim but does so with leave to amend so that Plaintiff can allege more clearly that he is suing on a single written contract.   

Unjust Enrichment 

“[T]here is¿no cause¿of¿action¿in California for¿unjust enrichment.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793; see¿McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th 1457, 1490.)¿ Accordingly, the Court sustains the demurrer to Plaintiff’s claim for unjust enrichment. 

Common Counts 

Defendants argue that Plaintiff’s common counts relating to the Fire Claim are governed by a two-year statute of limitations, and these claims are time-barred because the claims accrued on July 27, 2020 when Plaintiff alleges Defendants failed to pay the invoices and Plaintiff did not file the Complaint until September 23, 2023.   

Because these common counts address both the Water Claim and Fire Claim and Defendants’ demurrer attacks only one of the claims, the demurrer cannot be sustained on this ground.  (Kong, 108 Cal. App. 4th at 1047¿(“a¿demurrer¿cannot rightfully be sustained to part of a cause of action .. .”); accord¿Greese v. Sup. Ct. (1984) 157 Cal.App.3d 159, 163.)¿  

Plaintiff maintains that the common counts are based on a written instrument, and therefore, the four-year limitations period applies.  This is by no means certain based on a liberal reading of the Complaint, but given the demurrer is procedurally defective, the Court need not decide whether the common counts are based on a written instrument.   

Motion to Strike 

Defendants move to strike various allegations relating to the Fire Claim on grounds they are barred by the statute of limitations because they are not based on a writing.  As it is unclear whether there is a written or oral contract relating to the Fire Claim, the Court denies the motion to strike as premature.     

Defendants also argue to the extent Plaintiff is correct that there is only one written contract, then their motion to strike should be granted without leave to amend because their actions were authorized under the contract.  Defendants argue that the contract allows them to have Plaintiff address any problems with the quality of their work, which is purportedly the case here because Plaintiff caused the fire.  But that Plaintiff was the cause of the fire is nowhere alleged in the Complaint, and accordingly, cannot be a basis to grant a motion to strike.   

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants’ demurrer to the Complaint with 20 days’ leave to amend and DENIES Defendants’ motion to strike.   

IT IS SO ORDERED. 

 

DATED: September 13, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court