Judge: Frank M. Tavelman, Case: 23STLC02832, Date: 2024-10-17 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify "all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue."  The tentative ruling will become the ruling of the court if no argument is requested.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 23STLC02832    Hearing Date: October 17, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR JUDGMENT ON THE PLEADINGS

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On April 28, 2023, Lida Kohansameh (Plaintiff) filed the Complaint in this action against Serob Habesyan (Habesyan), Arch Stone Design Showroom Inc., Noho Tile Center, and Does 1-10. Plaintiff thereafter added Hudson Insurance Company (Hudson) as a defendant via Doe Amendment.

Plaintiff alleges that Defendants improperly performed the renovation of her kitchen, for which she paid $25,000. Plaintiff states three causes of action for (1) Breach of Contract (as against all Defendants), (2) Fraud (as against Habesyan), and (3) Common Count/ Money Had and Received (as against all Defendants).

Before the Court is motion for judgment on the pleadings brought by Hudson. Hudson demurs to each cause of action asserted against them on grounds that the pleadings are uncertain, and that Plaintiff has pled insufficient facts.

Plaintiff has filed no opposition to this motion. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted. 

ANALYSIS: 

I.                    LEGAL STANDARD 

A defendant may bring a statutory motion for judgment on the pleadings where the court has no jurisdiction over the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against that defendant. (C.C.P. § 438(c)(1)(B).) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) “Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense.” (Id.)

“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.” (C.C.P. § 452; see also Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Tr. (2001) 93 Cal.App.4th 902, 906.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exch. v. Superior Court (2004) 116 Cal.App.4th 446, 452.)

“In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Safarti Decl. ¶¶ 5-10.)

Facts

Plaintiff alleges that she entered into an oral contract in which she and “defendants entered into an oral contract in which defendant Habesyan agreed to provide all labor and materials: in order to remodel her kitchen. (Compl. ¶ 6.) Plaintiff further allege that she agreed to pay “defendant Habesyan as charged by the defendant, and each of them, the sum of $25,000.00.” (Compl. ¶ 6.)

Plaintiff alleges that during the oral agreement, she “clearly and decisively provided the defendants, and each of them, with photographs of the materials…desired.” (Compl. ¶ 7.) Plaintiff alleges that several months after the agreement, “the defendants, and each of them, 13 delivered and installed cabinets at the plaintiff s residence.” (Compl. ¶ 9.) Plaintiff alleges the materials used were not those discussed during the oral agreement. (Id.)

It is unclear from the Complaint if Unknown Business Entity is different from Does 1-10, as the Complaint contains no factual allegations regarding that party. Nor does the Complaint contain any factual allegations as to Does 1-10.

First COA - Breach of Contract - Granted with Leave to Amend

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, Plaintiff has specifically pled that the contract between herself and Defendants was oral. An oral contract may be pled generally as to its effect because it is rarely possible to allege the exact wording. (Khoury v. Maly's of Calif. (1993) 14 Cal.App.4th 612, 616.) Even given this more lenient standard, the Court finds Plaintiff’s pleading is insufficient as the result of uncertainty.

As noted above, “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exch. v. Superior Court, supra, 116 Cal.App.4th 446, 452.) A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (C.C.P. § 430.10(f).) "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury supra, 14 Cal.App.4th at 616.) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825.) Where a complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See id.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 ["A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet"].)

Here, Plaintiff’s allegations as to the formation of the oral contract are fatally uncertain. Plaintiff alleges that she and “defendants” entered into the oral contract, but then only alleges facts as to Habesyan. Plaintiff also only alleges rights and obligations of the contract as to Habesyan and herself. Plaintiff appears to allege that Habesyan was to perform the remodel and that Plaintiff was to pay him $25,000. It is entirely unclear from these allegations how Hudson is involved.

Plaintiff use of “defendants” as a catchall when alleging the formation of the contract does not mitigate this uncertainty. As concerns Noho Tile Center, Plaintiff at least alleges that it is “affiliated in some way with the other defendants named in this action.” (Compl. ¶ 2.) Plaintiff’s Complaint contains no similar allegations as to Doe Defendants or Unknown Business Entity Defendant.

In short, Plaintiff’s Complaint is insufficient to put Hudson on notice of the allegations against which they must defend. Accordingly, the motion for judgment on the pleadings is GRANTED with 20 days’ leave to amend. (C.C.P. §438.)

Third COA - Common Count - Sustained with Leave to Amend

The required elements of a common count claim are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged 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.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [citation and quotation marks omitted])

As concerns this cause of action, Plaintiff’s factual allegations are as follows:

Within the last two years, at Los Angeles, California, defendants became indebted to Plaintiff in the sum of $25,000.00 for money had and received the use and benefit of plaintiff. Plaintiff has repeatedly demanded payment from defendants. The last demand was made on November 8, 2022.

(Compl. ¶¶ 19-20.)

For many of the same reasons enumerated above, the Court finds these allegations are so uncertain as to be insufficient. Plaintiff’s again uses “defendants” in the aggregate when alleging indebtedness. As previously discussed, Plaintiff’s failure to allege any facts as to Doe Defendants or Unknown Business Entity means that her complaint lacks any factual allegations as to Hudson. Plaintiff cannot merely use the collective term “defendants” to state of cause of action against Hudson where she has alleged no factual basis for Hudson’s inclusion as a party.

Further, the Court expresses doubt that this cause of action would be properly pled even with factual allegations speaking to Hudson. This is because Plaintiff’s cause of action for Breach of Contract and her cause of action for Common Count are based on the same operative facts. This is evident from the fact that the Complaint contains no factual allegations regarding the exchange of money outside of the alleged contract. This is reinforced by the fact that the amount claimed to be owed in contract and quasi-contract, $25,000, is the same.

It is true that a party may plead inconsistent theories of liability. (See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1223.) Regardless, where a party has pled the existence of an enforceable contract, they may not state a claim for money had and received in quasi-contract. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389.)

Here, Plaintiff has pled the existence of an enforceable oral contract. Plaintiff has pled no facts as to the contract being unenforceable against Hudson such that her two causes of action would be consistent. If Plaintiff wishes to state this cause of action against Hudson, she must allege reasons why the contract made with Hudson is unenforceable. In the alternative Plaintiff could recant her Breach of Contract cause of action and add factual allegations as to Hudson improperly receiving funds. This is not to be construed as the Court’s endorsement of either approach.

Accordingly, the motion for judgment on the pleadings is GRANTED with 20 days’ leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Hudson Insurance Company’s Motion for Judgment on the Pleadings came on regularly for hearing on October 17, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR JUDGMENT ON THE PLEADINGS AS TO THE FIRST AND THIRD CAUSES OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

HUDSON TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  October 17, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles