Judge: Elaine W. Mandel, Case: 23SMCV02660, Date: 2023-11-07 Tentative Ruling

Case Number: 23SMCV02660    Hearing Date: November 7, 2023    Dept: P

Tentative Ruling

Magni v. Morrison et al., Case No. 23SMCV02660

Hearing Date November 7, 2023

Defendant Morrison’s Demurrer to Complaint

Plaintiff Magni alleges he was in a relationship with defendant Morrison and agreed to pay Morrison $5,000/month so Morrison could spend more time with him. Plaintiff alleges defendant accepted $17,600, then cut off contact, in breach of their agreement. Defendant demurs and moves to strike certain damages requests.

Breach of Contract

A contract with “uncertain and indefinite” terms is void and unenforceable. Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474. A cause of action for breach of contract is subject to demurrer if it cannot be discerned from the complaint whether the contract is oral, written, or implied. Cal. Code of Civ. Proc. §§430.10(f) and (g).

Defendant argues uncertainty, as the complaint does not specify how much time he was to spend with Magni. The complaint alleges Morrison promised to “substantially reduce his work hours and spend the additional time with Plaintiff.” This is sufficient for pleading purposes.

Defendant argues the breach of contract claim fails because the complaint does not allege whether the contract was written, oral or implied in fact. The complaint alleges the contract was written, oral and implied in fact. Complaint at ¶16. This renders the contract uncertain. It is unclear whether plaintiff seeks to enforce three separate contracts – one written, one oral and one implied-in-fact – or whether he alleges a single contract containing written, oral and implied elements. SUSTAINED with ten days leave to amend.

Fraud

Since the fraud cause of action alleges promissory fraud, it is derivative of the breach of contract claim. Complaint ¶7. It fails for the same reason. The nature of the alleged fraudulent promise must be clarified. SUSTAINED with ten days leave to amend.

Money Had and Received

A claim for money had and received is stated if “defendant is indebted to the plaintiff for a certain sum ‘for money had and received by the defendant for the use of the plaintiff.” Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623. Plaintiff must prove defendant received money “intended to be used for the benefit of the plaintiff, that the money was not used for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” Avidor v. Sutter’s Place (2013) 212 Cal.App.4^th 1439, 1454.

Defendant argues the money received was not for Magni’s “use.” The court agrees. The complaint does not allege Morrison received money that was supposed to be used for Magni’s benefit; the complaint alleges the money was for Morrison to keep. The facts alleged do not support a claim for money had and received. SUSTAINED without leave to amend.

Elder Abuse and Stolen Property (Penal Code §496)

Magni’s causes of action under Penal Code §496 and elder abuse are derivative of his fraud claim, as both are based on allegations that Morrison obtained money from Magni via a false promise. Since the fraud cause of action fails, these claims are similarly subject to demurrer. SUSTAINED with ten days leave to amend.

Motion to Strike

Defendant moves to strike various categories of damages, including punitive damages, emotional distress damages and treble damages under §496. Because the demurrer has been sustained as to all causes of action, the motion to strike is MOOT.