Judge Jill Feeney, Case Number: 23STCV18020, Date: 2024-05-08 Tentative Ruling

This is an action for breach of contract, unjust enrichment, conversion, and fraudulent inducement. Plaintiff alleges that Paul Nutall, Tiffany Nutall, and Michael Harris began a partnership in 2019 titled 2ndChance Organization (2ndChance). In November 2019, 2ndChance contacted Plaintiff to borrow money to fund a television project. 2ndChance represented it had a contract to broadcast twenty-four TV shows using Fox and its affiliate channels and that the project would generate $18,900,000 in gross revenue. In July 2020, Paul Nutall signed a Promise to Pay stating 2ndChance would pay $1,348,000 by March 1, 2021. In January 2021, Paul Nutall gave Plaintiff another agreement promising Plaintiff 80% of a $5 million advance it would receive on the project. 2ndChance failed to pay the money promised.

On July 31, 2023, Plaintiff Imran Khan filed his Complaint against Defendants Michael R. “Harry-O” Harris, Nulane Entertainment, Harry-O-Productions, LLC, Paul and Tiffany Nutall, Omar Shakur, 2ndCance TV Shows & Productions, Inc., 2ndChance Organization, Paul Nutall 2ndChance FGA, and Paul K Nutall 2ndChance.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Here, Harris’s counsel testifies that on November 27, 2023, he sent a meet and confer letter to Plaintiff’s counsel addressing issues with the Complaint. (Kenner Decl., ¶4.) The letter is insufficient to meet the requirements of Code Civ. Proc., section 430.41(a) because the parties were required to meet and confer in person or via telephone. However, failure to meet and confer does not constitute grounds to sustain or overrule a demurrer.

“The elements of an unjust enrichment claim are the receipt of a benefit and the unjust retention of the benefit at the expense of another.” (Peterson v. Cellco P’ship (2008) 164 Cal.App.4th 1583, 1593.) “Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution.” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.)

Thus, unjust enrichment is a cognizable cause of action in California under certain circumstances, such as when there is no enforceable express contract between the parties. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.)

Here, there are remedies available with the other causes of action in this action. Plaintiff alleges that a contract existed between Plaintiff and Defendants where Plaintiff would fund Defendants’ project in exchange for shares and a buyback of shares. (Compl., ¶¶48-51.) Defendants also promised to pay $1,348,000 and a portion of an advance on their project. (Id.)