Judge: Gary I. Micon, Case: 24CHCV00391, Date: 2024-07-09 Tentative Ruling

Case Number: 24CHCV00391    Hearing Date: July 9, 2024    Dept: F43

Dept. F43

Date: 7-9-24

Case #24CHCV00391, J.B. Hunt Transport, Inc. vs. Contractor’s Wardrobe, Inc.

Trial Date: N/A

 

DEMURRER WITH MOTION TO STRIKE

 

MOVING PARTY: Defendant Contractor’s Wardrobe, Inc.

RESPONDING PARTY: Plaintiff J.B. Hunt Transport, Inc.

 

RELIEF REQUESTED

Demurrer to the Complaint

·         2nd Cause of Action for Common Counts

·         3rd Cause of Action for Unjust Enrichment

 

Motion to Strike

·         Request “for attorneys’ fees and costs of suit herein incurred and according to the Agreement” in Plaintiff's Prayer [p. 6:17-18 of the Complaint]

·         “Attorneys’ fees” [pp. 4:16, 4:25, 5:6, 5:8, and 5:13]

·         Request for special and consequential damages in Plaintiff’s Prayer [p. 6:15]

 

RULING: Demurrer is sustained; motion to strike is granted.

 

SUMMARY OF ACTION

Plaintiff J.B. Hunt Transport, Inc. (Plaintiff) is alleging that it entered into a written agreement with Defendant Contractor’s Wardrobe, Inc. (Defendant). The written agreement, titled Dedicated Contract Services Transportation Agreement, was signed on March 12, 2020. The Agreement is attached as Exhibit A to Plaintiff’s complaint. Pursuant to the terms of the Agreement, Plaintiff was to provide transportation of Defendant’s good throughout California for an initial term of five years, beginning on April 1, 2020.

 

Plaintiff alleges that Defendant terminated the Agreement on August 25, 2023, effective September 9, 2023. Plaintiff is alleging that Defendant has failed to pay Plaintiff for services provided by Plaintiff under the Agreement at the total costs of $1,448,158.87. Plaintiff also alleges that Defendant failed to pay Plaintiff $340,282.82 in unamortized start-up costs and permanent delete charges.

 

Plaintiff’s complaint, filed on February 8, 2024, alleges three causes of action for (1) breach of contract, (2) common counts, and (3) unjust enrichment. Defendant filed its demurrer and motion to strike on May 13, 2024. Defendant demurs to Plaintiff’s Second and Third Causes of Action.

 

Plaintiff filed an opposition to Defendant’s demurrer and motion to strike on June 25, 2024.

 

ANALYSIS

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.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “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.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

            Second Cause of Action for Common Counts

Defendant demurs to Plaintiff’s Second Cause of Action for Common Counts on the basis that it fails to state facts sufficient to state a cause of action and is uncertain.

 

Defendant argues that Plaintiff’s cause of action for common counts pleads four different types of common counts that should have been listed as separate causes of action. Those four distinct common counts are (1) open book account; (2) account stated; (3) goods and services rendered; and (4) money had and received.

 

Each cause of action, count, or defense must be separate stated and given a separate number. (Cal. Rules of Court Rule 2.112.) Defendant argues that the four common counts listed by Plaintiff should be distinct causes of action because they each have separate jury instructions: Money Had and Received (CACI § 370); Goods and Services Rendered (CACI § 371); Open Book Account (CACI § 372); and Account Stated (CACI § 373).

 

Demurrers have long been sustained when separate causes of action are not listed separately. (Haddad v. McDowell (1931) 213 Cal. 690, 692; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235 (“the special demurrer was properly sustained because the complaint was defective in that two purported causes of action were not separately stated”).)

 

Plaintiff’s opposition does not address Defendant’s arguments that the common counts should be listed separately. Instead, Plaintiff only argues that common counts are not subject to fact pleading standards. However, as Defendant argues in its reply, the case that Plaintiff cites in support of this argument sustains a demurrer to common counts for failing to comply with facts pleadings standards. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (demurring to common counts because plaintiff failed to comply with fact pleading standards by pleading them in a “conclusional fashion”).)

 

Defendant’s demurrer to this cause of action is sustained on the basis that the common costs listed under this cause of action should be pled as separate causes of action.

 

Defendant also demurs to this cause of action on the basis that it improperly pleads common counts seeking the same damages as the breach of contract cause of action.

 

Plaintiffs cannot simultaneously: (1) plead that an enforceable express contract exists; and (2) plead common counts seeking the same relief for the same alleged breach. (See Leoni v. Delany (1948) 83 Cal.App.2d 303, 307 (“It is the unenforceability of an otherwise valid contract which gives rise to the right of relief through the medium of a common count.”); Moore v. Bartholomae Corp. (1945) 69 Cal.App.2d 474, 477 (“The law is established in California that a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated.”).)

 

Plaintiff’s complaint alleges that the damages sought by the common counts cause of action are the same as those caused by Defendant’s breach of a valid and enforceable contract. (See Comp., ¶¶ 12, 13, 18, 22, 24, 29, 31, and 33.) Two of the common counts also expressly allege that they are based on an alleged breach of contract and seek breach of contract damages. (See Comp., ¶¶ 20-21; 24-25, 27.)

 

Plaintiff’s cause of action for common counts is based on the same damages as Plaintiff’s cause of action for breach of contract and is therefore improperly pled. Defendant’s demurrer to the second cause of action can also be sustained on this basis.

 

Defendant also argues that the second cause of action is uncertain because Plaintiff does not plead that it is an alternative to the breach of contract cause of action and instead pleads it as its own distinct cause of action. Plaintiff’s opposition argues that the common counts are pled in the alternative, but as Defendant points out in its reply, there is no language in Plaintiff’s complaint indicating that the common counts are being pled as an alternative to the breach of contract cause of action. The opposition also does not explain how the common counts could be pled in the alternative.

 

Defendant’s demurrer to Plaintiff’s Second Cause of Action is sustained with leave to amend for the reasons given above.

 

            Third Cause of Action for Unjust Enrichment

Defendant demurs to Plaintiff’s Third Cause of Action for Unjust Enrichment on the basis that it fails to state facts sufficient to state a cause of action against Defendant.

 

Defendant argues that demurrer to this cause of action is appropriate because there is no cause of action for unjust enrichment in California. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 785, 793 (“unjust enrichment is not a valid cause of action under California law”).) Defendant further argues that unjust enrichment cannot stand as its own cause of action. (See Everett v. Mountains Recreation & Conservation Authority (2015) 239 Cal.App.4th 541, 553.)

 

Plaintiff’s opposition does not address Defendant’s argument that unjust enrichment is not a cause of action in California. Plaintiff cites CACI § 375 in its opposition, but that section does not apply to the unjust enrichment that Plaintiff has pled because it involves third-party middlemen, and that section states that unjust enrichment is not a cause of action.

 

Defendant also argues that even if there were a cause of action for unjust enrichment in California, this cause of action would also be duplicative of Plaintiff’s breach of contract cause of action because it requests the same damages. (See Comp., ¶ 37.)

 

Because there is no cause of action for unjust enrichment in California, Defendant’s demurrer to Plaintiff’s Third Cause of Action is sustained without leave to amend.

 

Motion to Strike

A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” Under CCP § 436(b), the court may “[s]trike out 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.” 

 

            Attorney Fees

Defendant has requested that Plaintiff’s request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1021.)

 

Plaintiff’s complaint claims that it can recover attorney fees “according to the Agreement,” but the Agreement makes no provision for attorney fees. Plaintiff also makes this claim in its opposition, but its claim is not supported by reference to any section of the Agreement. Plaintiff does refer to Paragraph 3(a) on page 2 of the Contract, but that paragraph only mentions costs, not attorney fees.

 

Accordingly, Plaintiff’s request for attorney fees is ordered stricken from the complaint.

 

            Special and Consequential Damages

Plaintiff also requests special and consequential damages, but Defendant points out that the alleged relevant agreement expressly prohibits the parties from seeking such damages. (Wilson Decl., Ex. A, § 6(d) (“in no event will either Party be liable for incidental, consequential (including lost profits and chargebacks), special, punitive or exemplary damages in connection with the goods or the services rendered hereunder even if notice was given of the possibility of such damages and even if such damages were reasonably foreseeable”).)

 

Plaintiff argues in its opposition that it does not seek damages for the goods or services rendered; rather, Plaintiff seeks damages for Defendant’s unilateral cancellation of the contract. However, Plaintiff does not give a basis for seeking special and consequential damages for the cancellation of the contract. Furthermore, Defendant argues in its reply that terminating the services under a service contract arises “in connection with…the services rendered hereunder.” Therefore, the provision cited above could, in fact, apply to this situation.

 

Because the requested damages are based on a breach of the Agreement but the Agreement forbids recovery of such damages, Plaintiff’s request for special and consequential damages is ordered stricken from the complaint.

 

CONCLUSION

Defendant’s demurrer to Plaintiff’s Second Cause of Action is sustained with leave to amend. Defendant’s demurrer to Plaintiff’s Third Cause of Action is sustained without leave to amend.

 

Defendant’s motion to strike is granted.

 

Plaintiff is given 30 days leave to amend.

 

Moving party to give notice to all parties.