Judge: H. Jay Ford, III, Case: 24STLC05312, Date: 2025-04-22 Tentative Ruling

Case Number: 24STLC05312    Hearing Date: April 22, 2025    Dept: O

 Case Name:  Levant v. Willat, et al.

SUBJECT:                 DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant Boyd I. Willat dba 7 Fountains TIC SPE, LLC & Isola Bella TIC SPE, LLC

RESP. PARTY:         Andrew Levant (Opposition filed No responsive party as of 4-15-25

TENTATIVE RULING

            Defendant Boyds I. Willat dba 7 Fountains TIC SPE, LLC & Isola Bella TIC SPE, LLC Demurrer without motion to strike is SUSTAINED with 20 days to amend as to the 1^st through 4^th causes of action in Plaintiff Andrew Levant’s Complaint, and OVERRULED as to the 5^th cause of action for IIED. The demurrer is unopposed as of 4-16-25.

            Plaintiff fails to plead the necessary elements of the breach of contract, unjust enrichment, indebitatus assumpsit, and quantum meruit causes of action. Plaintiff pleads all the necessary elements of the 5^th cause of action or IIED, and Defendant concedes this point in their demurrer.

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

“It is true that modern rules of pleading generally permit plaintiffs to set forth alternative theories in varied and inconsistent counts.” Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388 [137 Cal.Rptr.3d 293, 330], as modified on denial of reh'g (Feb. 24, 2012), citing Rader Co. v. Stone (1986) 178 Cal.App.3d 10; see Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [“the modern practice allows that party to plead in the alternative and make inconsistent allegations”].) “Thus, if a plaintiff was uncertain as to whether the parties had entered into an enforceable agreement, the plaintiff would be entitled to plead inconsistent claims predicated on both the existence and absence of such an agreement.” (Klein, supra, 202 Cal.App.4th at p. 1388; see also Rader Co., supra, 178 Cal.App.3d at p. 29 [plaintiff “is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action”].)

“A plaintiff may not, however, pursue or recover on a quasi-contract claim if the parties have an enforceable agreement regarding a particular subject matter.” (Klein, supra, 202 Cal. App.4th at p. 1388.)

I.                Demurrer to the 1^st cause of action for breach of contract—SUSTAINED with 20 days leave to amend

Establishing a breach of contract claim "requires a showing of (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.” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

Plaintiff Andrew Levant’s (“Plaintiff”) breach of contract cause of action fails to state whether the alleged contract was express or implied, instead stating that the alleged contract was both express and implied. (Compl., ¶¶ 4, 5, 18.) A breach of contract claim is subject to demurrer if is it “cannot be ascertained from the pleading whether  the contact is written, is oral or is implied buy conduct” (Code Civ. Proc., § 430.10, subd. (g).)

 Plaintiff fails to specify key terms of the alleged agreement, such as the scope of the services to be provided, the method and timing of payment thus Plaintiff fails to allege enough facts to satisfy the second element of the cause of action. (See Compl., ¶¶ 5, 18.)

Additionally, a contract related to real property or brokerage agreements, which appear to be the issue in the Complaint, must be in writing and signed by the party to be charged, thus falling with the Statute of Frauds. (See Civ. Code, § 1624, subd. (a)(3)– (7).) The alleged agreement involves brokerage services for a $5 million loan on real property, it is subject to the Statute of Frauds and must be in writing. (Compl., ¶ 5.) Thus, Plaintiff must plead that the existence of a written and signed contract and fails to do so.  

II.             Demurrer to the 2^nd cause of action for Unjust enrichment—SUSTAINED with 20 days leave to amend

“The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. [Citation.] The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769.)

“Unjust enrichment is synonymous with restitution.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.) Under the law of restitution, [a]n individual is required to make restitution if he or she is unjustly enriched at the expense of another. [Citations.] A person is enriched if the person receives a benefit at another's expense. [Citation.] [Citation.] However, [t]he fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it.” (Ibid., emphasis in original, quotes omitted.)

“There are several potential bases for a cause of action seeking restitution. For example, 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. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory.... [Citations.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties' intent, in order to avoid unjust enrichment.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 388.)

Plaintiff is permitted to plead alternative theories of recovery that may contradict one another within the complaint, however, Plaintiff fails to plead that no enforceable contract exists within the unjust enrichment cause of action. Plaintiff incorporates previous allegations in the complaint which are uncertain and ambiguous as to whether there is an express or implied contract, but the allegations do plead the existence of an enforceable contract. (See Compl., ¶¶ 4–5, 22; see Klein, supra, 202 Cal.App.4th at p. 1388 (“While generally parties are permitted to plead in the alternative, the allegation of binding contracts nullifies the unjust enrichment claim.”) Thus, without pleading the non-existence of an enforceable contract, the unjust enrichment cause of action fails. Additionally, Plaintiff fails to plead the alternative methods of unjust enrichment when parties have an express contract. (See McBride, supra, 123 Cal.App.4th at p. 388.)

III.           Demurrer to the 3^rd cause of action for indebitatus assumpsit—SUSTAINED with 20 days leave to amend

Indebitatus Assumpsit is also known as a common count “for money had and received.” (Philpott v. Superior Court in and for Los Angeles County (1934) 1 Cal.2d 512, 518.) Indebitatus Assumpsit “arises only where the money was received and held under such circumstances that the law will imply the contract. Where it would be inequitable and unconscionable for the party receiving the money to hold it, amounting to a moral fraud to do so, it will usually be so held. Where one person receives money belonging to another, and wrongfully refuses to pay it over, the action will lie.” (Id., at pp. 522–523.)

“To prevail on a common count for money had and received, the plaintiff must prove that the defendant is indebted to the plaintiff for money the defendant received for the use and benefit of the plaintiff.” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230.) “In an action on an express contract, a claim for money had and received is permitted where there has been a total failure of consideration.” (Ibid.) “Failure of consideration is the failure to execute a promise, the performance of which has been exchanged for performance by the other party.” (Ibid.) “[T]he failure of the consideration is total ... [where] nothing of value has been received under the contract by the party...” seeking restitution. (Ibid.; see Cleary v. Folger (Cal.1893) 33 P. 877, 878 [“when both parties have failed to perform the contract, either may elect to consider it rescinded and recover moneys paid upon it.”].)

Defendants argue that Indebitatus assumpsit is a common law claim traditionally used to recover money where there is no formal contract but an obligation to pay is implied by law, citing to Hedging Concepts, Inc. v. First Alliance Mortg. Co. (1996) 41 Cal.App.4th 1410, 1419.  Hedging Concepts Inc. does not discuss the cause of action for indebtatious assumpsit, instead the case focuses on quantum meruit causes of action. Additionally, this is incorrect, as an express contract may be alleged within this cause of action, but a total failure of consideration, alongside express contract existence allegations, must also be plead in order to satisfy the elements.

Plaintiff fails to plead the necessary elements of an indebitatious assumpsit, or money had and received common count claim. Plaintiff does not allege a failure of consideration for the lack of Defendant paying Plaintiff $25,000, as it is unclear what the $25,000 is a payment for, or what services were rendered by Plaintiff in exchange for payment.

IV.           Demurrer to the 4^th cause of action for quantum meruit—SUSTAINED with 20 days leave to amend

To state a claim for quantum meruit, a plaintiff must plead: (1) “the plaintiff acted pursuant to ‘an explicit or implicit request for the services’ by the defendants, and (2) the services conferred a benefit on the defendant.” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance Co. (2018) 24 Cal.App.5th 153, 180.)

[R]ecovery in quantum meruit does not require a contract.” (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449, as modified on denial of reh'g (Sept. 28, 1998).) “A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice. See, e.g. 1 Witkin, Summary of California Law (9th ed. 1987) Contracts, sections 12, page 47; 91, pages 122–123; 112, pages 137–138. “However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation.” Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419, as modified on denial of reh'g (Feb. 22, 1996) [“there can be no implied promise to pay reasonable value for services when there is an express agreement to pay a fixed sum”].)

Plaintiff again re-alleges all previous paragraphs in the Complaint within the quantum meruit cause of action, thus incorporating the existence of an express or implied contract with a reasonable value for services. Thus, Plaintiff’s claim for quantum meruit fails as there is no equitable basis for the claim when the parties have an agreement covering compensation.

V.              Demurrer to the 5^th cause of action for IIED—OVERRULED

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. “Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”(Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].)

Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court. (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct). If reasonable persons may differ, it is for the jury to determine whether the conduct was actually outrageous. (Ibid.)

Defendant demurs to the 5^th cause of action for IIED, as if the cause of action is for Negligent Infliction of Emotional Distress when in fact the Complaint states the 5^th cause of action is for IIED, NOT NIED. Defendant admits the cause of action is sounding in IIED within the demurrer, stating “Plaintiff’s allegations, as currently pled, are more appropriately related to an intentional tort (such as assault or IIED) rather than negligence.” (Demurrer, p. 8:1–2.) Plaintiff pleads all the necessary elements of an IIED claim within the complaint. (See Compl., ¶¶ 32–36.)

Defendants argument that Plaintiff’s allegations of emotional distress lack sufficient facts to show severe distress is without merit. Plaintiff alleges that Defendant physically assaulted and harassed Plaintiff in Plaintiff’s home, plus attempted to remove personal property from Plaintiff’s residence causing physical and mental injury to Plaintiff. (Compl,, ¶¶ 12–13.) These allegations are factually sufficient to meet the elements of IIED.