Judge Gail Killefer, Case Number: 23STCV16662, Date: 2024-03-27 Tentative Ruling

TENTATIVE: Defendant Roc Nation’s demurrer to the Complaint is sustained with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for May 3, 2024, at 8:30 a.m. The Case Management Conference is taken off calendar. Defendant to give notice.

On July 18, 2023, Anthony Wheaton pka Sir Jinx (“Plaintiff”) filed a Complaint against Grand Hustle Records, LLC (“Hustle”); Roc Nation, LLC (“Roc Nation”), and Does 1 to 50. The Complaint alleges four causes of action: (1) breach of contract, (2) breach of good faith and fair dealing, (3) unjust enrichment, and (4) accounting.

On January 10, 2024, Defendant Roc Nation filed a demurrer to Plaintiff’s Complaint. Plaintiff opposed the Motion. The matter is now before the court.

Discussion

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. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Plaintiff is a music producer who produced the song “Dope” for Defendants pursuant to a label contract. (Compl. ¶ 9, 10, 11.) In 2016, Plaintiff wrote, produced, and registered the song with Goonz Skwad Music via ASCAP Publishing. (Compl. ¶ 12.) Years after Plaintiff learned that his song was played via various mediums and in October 2022, Plaintiff informed defendants that they had failed to pay him royalties and he was entitled to an accounting regarding the profit and royalties for the song. (Compl. ¶¶ 11, 14, 17.) On November 11, 2022, Plaintiff through counsel sent a demand letter but to date, Defendants have failed to respond. (Compl. ¶¶ 18-20, 22.) Plaintiff initiated this action on July 18, 2023, to recover damages.

Defendant Roc Nation now demurs to all causes of action alleged in the Complaint.

The elements of a claim for breach of contract are: "(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.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.) Furthermore, “the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452. at 458-59 citing CCP § 430.10(g).) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Id. at p. 459 [internal citations omitted].)

Defendant Roc Nation demurrers to the breach of contract claim on the basis that Plaintiff fails to plead facts to show that it had a contract with Plaintiff and fails to layout the terms of the contract and obligations that Roc Nation owed to Plaintiff under the contract. The court agrees that without a copy of the production label agreement or without the terms of said contract being laid out in the Complaint, Plaintiff only pleads conclusory allegations insufficient to put Roc Nation on notice as to what provision of the contract were violated. (Compl. ¶ 27.) “If the action is based on alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.”¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 308.) Alternatively, “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)¿¿“[A]ll essential elements of a breach of contract cause of action[] must be pleaded with specificity.”¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.)

Plaintiff’s opposition alleges new facts indicating that an implied agreement existed between Plaintiff and Roc Nation. (Opposition at p. 5-6.) Facts not alleged in the pleading are presumed not to exist. (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327.) Therefore, if an implied contract existed between Plaintiff and Roc Nation, the Complaint must allege such facts. The court further notes that unless Plaintiff is pleading an implied contract with Roc Nation as an alternative theory of liability, there cannot be a valid, express contract and an implied contract that embrace the same subject matter and exist at the same time. (See Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613.)

Based on the above, the demurrer to the first cause of action is sustained with leave to amend.

“[A] tortious breach of contract … may be found when (1) the breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion; or (3) one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.)

Since the demurrer to Plaintiff’s breach of contract is sustained, so is the demurrer to Plaintiff’s second cause of action with leave to amend.

“[T]here is no cause of action in California for unjust enrichment. The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so. [Citation] Unjust enrichment is ‘a general principle, underlying various legal doctrines and remedies, rather than a remedy itself.’ [Citation.] It is synonymous with restitution. (Melchior v. New Line Cinema (2003) 106 Cal.App.4th 779, 793 [internal quotations omitted].) “As a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 (Durell).)

Defendant Roc Nation asserts that the demurrer to the third cause of action should be sustained without leave to amend as there is no independent cause of action for unjust enrichment. While there is no cause of action in California labeled “unjust enrichment”, an unjust enrichment claim can be made and the remedy is grounded in equitable principles of restitution. (See Sepanossian v. National Ready Mix Company, Inc. (2023) 97 Cal.App.5th 192.) “Unjust enrichment is generally an inapplicable basis for restitution where the parties have an enforceable express contract, however, ‘restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason,’ or ‘where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct.’ ” (Id. citing Durell, supra, 183 Cal.App.4th at p. 1370.)

As Plaintiff has pled the existence of an express Label contract existing between the parties, Plaintiff’s third cause of action fails. The demurrer to the third cause of action is sustained with leave to amend.

“A cause of action for accounting requires a showing of a relationship between the plaintiff and the defendant, such as a fiduciary relationship, that requires an accounting or a showing that the accounts are so complicated they cannot be determined through an ordinary action at law.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1413.) “ ‘An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.’ ” (Ibid.) “The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender.” (Teselle¿v. McLoughlin (2009) 173 Cal.App.4th 156,¿179-80.)

Defendant Roc Nation demurrers to the fourth cause of action on the basis that Plaintiff fails to allege that a relationship existed between Plaintiff and Roc Nation. Plaintiff does not allege that Roc Nation had an agreement with Plaintiff or that a fiduciary relationship existed between them. Plaintiff’s opposition reiterates that Roc Nation failed to provide accounting but neglects to explain what relationship the Plaintiff had with Roc Nation.

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

Defendant Roc Nation’s demurrer to the Complaint is sustained with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for May 1, 2024, at 8:30 a.m. Defendant to give notice.

[1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. (Wirtschafter Decl. ¶ 2, Ex. A.)