Judge Katherine Chilton, Case 22STLC03106 2022-08-01 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC03106, Date: 2022-08-01 Tentative Ruling

Case Number: 22STLC03106 Hearing Date: August 1, 2022 Dept: 25

PROCEEDINGS: DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant Rick Eyraud

RESP. PARTY: Plaintiff JTG Restaurant Group, Inc.

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

Defendant Rick Eyraud’s DEMURRER on the grounds of res judicata and collateral estoppel is OVERRULED. Defendant Rick Eyraud’s DEMURRER to the Complaint’s (1) breach of contract (2) unjust enrichment, and 3) conversion causes of action is OVERRULED.

Defendant Rick Eyraud’s MOTION TO STRIKE is (1) DENIED as to the prayer for relief in the form of costs incurred in the lawsuit for each of the three causes of action and (2) GRANTED as to the prayer for relief in the form of damages in an amount to be proven at trial for the conversion cause of action.

SERVICE:

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 15, 2022. [ ] Late [ ] None

REPLY: Filed on July 25, 2022. [ ] Late [ ] None

ANALYSIS:

I. Background

On May 4, 2022, Plaintiff JTG Restaurant Group, Inc. (“Plaintiff” or “JTG”) filed an action against Defendant Rick Eyraud (“Defendant” or “Eyraud”) for 1) breach of written contract, 2) unjust enrichment, and 3) conversion. The action arose out of an agreement entered into by Plaintiff and Defendant for the installation of logo and pole signs for Plaintiff’s restaurant. (Compl. ¶ 16.)

On June 24, 2022, Defendant filed a Demurrer with Motion to Strike (“Demurrer”) and Motion to Strike (“Motion to Strike”) to the Complaint and Request for Judicial Notice. On July 15, 2022, Plaintiff filed an Opposition to the Demurrer. On July 25, 2022, Defendant filed a Reply to the Opposition to the Demurrer and Notice of Non-Opposition to the Motion to Strike.

II. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). 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.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

III. Request for Judicial Notice

Defendant requests judicial notice of Exhibit A, March 8, 2022, Court Order on “Demurrer with Motion to Strike” for Los Angeles Superior Court Case, # 21STLC07352 JTG Restaurant Group, Inc. Rick Eyraud. The request is GRANTED.

IV. Discussion

A. Meet and Confer Requirement

On June 7, 2022, defense counsel initiated email correspondence with Plaintiff’s counsel. (Stahl Decl. ¶ 4.) Subsequently, on June 13, 2022, defense counsel emailed Plaintiff’s counsel to meet and confer regarding a demurrer and motion to strike that Defendant planned to file. (Ibid. at ¶ 5; Mot. p. 46 - Ex. D.) After sporadic email correspondence, counsel for Plaintiff and Defendant spoke on the phone and according to defense counsel, Plaintiff’s counsel told him to proceed with the demurrer. (Ibid. at ¶ 6.) Plaintiff’s counsel confirms the attempts to meet and confer. (Reyes Decl. ¶ 3, 5.)

The Court finds defense counsel’s declaration and attached email correspondence sufficient to satisfy the meet and confer requirement.

B. Res Judicata and Collateral Estoppel

a. Defendant Eyraud’s Demurrer

Defendant Eyraud demurs to Plaintiff’s breach of contract and unjust enrichment causes of action on the basis that Plaintiff filed a nearly identical Complaint, with identical allegations, against the same Defendant on October 8, 2021, at the Los Angeles Superior Court, Case 21STLC07352. (Demurrer pp. 3, 5, 7-8; Ex. B.) The previous complaint alleged 1) breach of written contract, 2) unjust enrichment, 3) fraud, 4) breach of oral promise, and 5) breach of promissory note causes of action. (Ibid. p. 2.) Defendant filed a demurrer with a motion to strike and on March 8, 2022, the Court sustained the demurrer (without leave to amend) and dismissed Plaintiff’s lawsuit without prejudice. (Ibid. at pp. 3, 5; Ex. C.)

Defendant argues that the Court Order on March 8, 2022, constitutes “a full and final judgment on the merits for this action” for the purposes of res judicata. (Ibid. pp. 5-6.) He contends that “a judgment is on the merits for purposes of res judicata ‘if the substance of the claim is tried and determined…’ [Citation.]” (Ibid. p. 7 (citing Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.) Defendant cites to Goddard v. Security Title Ins. & Guarantee Co. to support his argument that res judicata may bar a renewed lawsuit and this “may include a judgment of dismissal following a general demurrer or a dismissal motion if the disposition was plainly reached ‘on a ground of substance.’” (Demurrer at p. 7; (1939) 14 Cal. 2d 47, 52.)

Defendant also states that “dismissal was granted after Plaintiff (1) filed no opposition to the prior demurrer and (2) neglected to even show up at the demurrer hearing itself.” (Demurrer at p. 6.)

Furthermore, Defendant argues that although the previous complaint did not allege a cause of action for conversion, this cause of action is barred by the doctrine of claim preclusion or collateral estoppel because it is “premised on the same ‘primary right.’” (Ibid. at p. 7 (citing Mycogen Corp. v Monsanto Co. (2002) 28 Cal. 4th 888, 904; Ibid. at p. 9.) In support, Defendant argues that the allegations in the first complaint are identical to those of the second complaint. (Ibid. at p. 9.) In addition, Defendant argues that the allegations were litigated in the former proceeding when a demurrer was filed, decided when the demurrer was sustained without leave to amend, and subject to a decision that was final and on the merits. (Ibid.) Defendant states that the Court in the former proceeding found that none of the factual allegations in the former complaint referred to the Defendant. (Ibid.)

b. Plaintiff JTG’s Opposition to Demurrer

In its Opposition, Plaintiff argues that there was never a full and final judgment on the merits of the former lawsuit. (Opposition p. 5.) The court dismissed the former proceeding “without prejudice” which means there was no final judgment and thus, “no bar to plaintiff’s filing a new lawsuit on the same claims so long as the statute of limitations has not run.” (Opposition p. 6 (citing Wells v. Marina City Properties (1981) 29 Cal. 3d 781, 784.)

Referring to his complaint in the former proceeding, Plaintiff states that there was a “section that was inadvertently not deleted from the complaint” (possibly from a different lawsuit), which did not impact the remainder of the complaint and make the entire complaint void. (Ibid. at pp. 9, 11.)

Furthermore, Plaintiff states that Plaintiff’s counsel did not respond to the demurrer in the previous proceeding and did not appear at the hearing due to heart failure and other medical conditions. (Ibid at pp. 5-6; Reyes Decl. ¶ 6.)

c. Defendant Eyraud’s Reply to Opposition to Demurrer

In his Reply to the Opposition, Defendant reiterates his arguments on res judicata and collateral estoppel. He disregards Plaintiff’s argument that the prior complaint was dismissed without prejudice and restates that “there has already been a final judgment on the merits of Plaintiff’s claims pursuant to a March 8, 2022, Court Order which sustained Defendant’s demurrer without leave to amend.” (Reply p. 3.) He argues that the case cited by Plaintiff, Wells v. Marina City Properties (1981) 29 Cal. 3d 781, does not apply to the instant case because in that case, the Court had sustained a demurrer with leave to amend; while here, there was no leave to amend. Defendant also states that Plaintiff admits to filing the exact same lawsuit with the same claims. (Reply p. 5.)

Defendant also argues that the prior case was dismissed on grounds of substance because the allegations were not related to the Defendant, not because of Plaintiff’s counsel’s absence. (Ibid. at p. 7.) Defendant claims that he was never informed about Plaintiff’s counsel medical condition. (Ibid. at p. 7.)

d. Analysis

The doctrine of res judicata precludes the re-litigation of certain matters which have been resolved in a prior proceeding under certain circumstances. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.) “Res judicata, or claim preclusion, prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) “Collateral estoppel, or issue preclusion, precludes re-litigation of issues argued and decided in prior proceedings.” (Ibid.) “Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Fed'n of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) “Full faith and credit must be given to a final order or judgment of a federal court. Such an order or judgment has the same effect in the courts of this state as it would have in a federal court.” (Levy v. Cohen (1977) 19 Cal.3d 165, 172-173.) “A judgment is on the merits for purposes of res judicata, ‘if the substance of the claim is tried and determined…’ This may include a judgment of dismissal following a general demurrer or a dismissal motion if the disposition was plainly reached ‘on the ground of substance’.” (Association of Irritated Residents v. Dept. of Conservation (2017) 11 Cal.App.5th 1202, 1220.) The reasoning for this doctrine is that the parties have already had a fair opportunity to present and litigate their cases. (Ibid. at 1219.) However, if the prior judgment was not on the merits, then res judicata does not apply and does not bar the new action. (Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 52.) “It is established California law that a dismissal for want of prosecution is not on the merits and therefore does not operate as res judicata to a subsequent proceeding.” (Mattern v. Carberry (1960) 186 Cal.App.2d 570, 572.)

Here, Defendant relies on Goddard to support his argument that cases in which res judicata applies “may include a judgment of dismissal following a general demurrer or a dismissal motion if the disposition was plainly reached “on a ground of substance.” (Demurrer p. 7.) However, the Court in Goddard also states that “a judgment not rendered on the merits does not operate as a bar.” (Goddard, 14 Cal. 2d at 52.) “A judgment given after the sustaining of a general demurrer on a ground of substance, for example, that an absolute defense is disclosed by the allegations of the complaint, may be deemed a judgment on the merits, and conclusive in a subsequent suit; and the same is true where the demurrer sets up the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action. [Citation.] But even a judgment on general demurrer may not be on the merits, for the defects set up may be technical or formal, and the plaintiff may in such case by a different pleading eliminate them or correct the omissions and allege facts constituting a good cause of action, in proper form. Where such a new and sufficient complaint is filed, the prior judgment on demurrer will not be a bar. [Citation.]” (Ibid.) The Court also states that “an ordinary judgment of dismissal, for example, for want of prosecution, has the same effect as a nonsuit, that is, is considered not on the merits and not a bar to another suit on the same cause of action, unless the record shows that there was an actual determination on the merits.” (Ibid.)

Plaintiff relies on Wells v. Marina City Properties, Inc. for the contention that when a case is dismissed without prejudice, it may be refiled if the statute of limitations has not run. ((1981) 29 Cal. 3d 781, 784.) The Court in this case also states that “res judicata effect of a judgment of dismissal…after the sustaining of a demurrer is of limited scope.” (Ibid. at 789.) Even if it is considered a judgment, if new or additional facts are alleged that cure the defect of an original pleading, then the previous judgment does not bar the present one. (Keidatz v. Albany (1952) 39 Cal. 2d 826, 828.)

In the former proceeding, the Court found that the complaint referred to “Patrick Flynn” as the defendant in the case and “Rick Eyraud” was only named in the caption of the complaint, not anywhere else. (Demurrer p. 43 – Court Order.) Therefore, none of the factual allegations referred to the Defendant. (Ibid.) Since Plaintiff did not oppose the demurrer and show how the complaint could be amended, the demurrer was sustained without leave to amend and the case was dismissed without prejudice. (Ibid.) In its Opposition to the instant Demurrer, Plaintiff’s states that the irrelevant parties in the complaint were a result of an inadvertent mistake by the Plaintiff and in the present complaint that section has been removed. (Opposition at pp. 9, 11.)

The Court finds that the former proceeding does not bar Plaintiff’s instant Complaint. There is no dispute between parties that the former and present proceedings are nearly identical in allegations, causes of action, and parties. The question remains whether the decision in the prior proceeding was final. If the Court determines that there was no final judgment in the former proceedings and the previous decision dismissed the action without prejudice, then the former action would not bar Plaintiff’s current lawsuit. On the other hand, if the Court determines that there was a final judgment, but Plaintiff alleged new or additional facts because he included allegations against the appropriate defendant in the new Complaint, then Plaintiff would not be barred from bringing the instant action, particularly because the former proceeding was dismissed without prejudice.

The Court finds that Plaintiff is not barred by the doctrines of res judicata or collateral estoppel from bringing the instant action and OVERRULES the DEMURRER on these grounds.

C. First Cause of Action – Breach of Contract

a. Plaintiff JTG’s Allegations

The Complaint alleges that on or about September 22, 2019, Plaintiff and Defendant entered into an agreement whereby:

“Defendant agreed with Plaintiff to prepare a new Joselito Logo Sign 36’’ Tall. New Joselito Pole sign with ‘Joselito’ in double neon 28’’ Joselito 22’’ tall in red double neon with ‘Mexican food’ in green neon 16’’ single with ‘cocktails’ in red script neon all mounted on new logo sign style two sides. Polo Repairs: Cut top of pole to match sign reinforce mounting brackets and install new ones as needed paint pole, run new electrical for lights. The following payments were made to Defendant: $2,000 (7/22/2019); $2000 (7/30/2019); $2,000 (8/20/2019); $2,000 (9/10/2019); $6,500 (2/26/2020); $6,500.00 (2/28/2020) The subtotal for the contract between both parties was $24, 875.00. (Exhibit A).”

(Compl. ¶¶ 1, 15.) In total, Plaintiff paid Defendant $21,000. (Ibid. ¶ 2.) Defendant began the services and made numerous promises to complete them throughout the year 2020 but did not. (Ibid. at ¶¶ 2-3.) On February 27, 2021, Plaintiff made attempts to follow up and resolve the problem informally, yet the services were not completed. (Ibid. at ¶¶ 3-4; Exs. B-C.) On July 1, 2021, Plaintiff sent a demand letter to Defendant asking for a refund of the advance payments because it did not know if services would be completed. (Ibid. at ¶ 5.)

Plaintiff alleges that it has “performed all conditions, covenants, and promises” and complied with the terms and conditions of the contract, including providing full payment to Defendant. (Ibid. at ¶ 17.) Defendant has breached the agreement because he has failed “to perform the itemized duties contained in the AGREEMENT between Plaintiff and Defendant.” (Ibid. at ¶ 19.) As a result of the breach, “Plaintiff has sustained and continues to sustain damages.” (Ibid. at ¶ 20.)

b. Defendant Eyraud’s Demurrer

Defendant demurs to Plaintiff’s breach of contract cause of action for failure to state facts sufficient to constitute a cause of action and for being ambiguous and unintelligible. (Demurrer p. 2.) He states that the “complaint (1) does not state the terms of the contract, (2) attach a copy of the contract or (3) specifically reference the language from the alleged contract and only attached an invoice and email.” (Ibid. at p. 10.) He also argues that the complaint does not plead all the elements of a breach of contract cause of action. (Ibid.)

c. Plaintiff JTG’s Opposition to Demurrer

In its Opposition to the Demurrer, Plaintiff argues that it has alleged the existence of a valid contract and provided the specific terms of the contract under “Facts Relevant to All Causes of Action” section and in the attached Invoice. (Opposition at pp. 11-12.) Furthermore, Plaintiff argues that he has alleged facts regarding all elements of a contractual breach cause of action. (Ibid. at p. 13.)

d. Defendant Eyraud’s Reply to Opposition to Demurrer

In its Reply to the Opposition, Defendant reiterates its statements from the Demurrer. (Reply pp. 8-9.)

e. Analysis

“‘[T]he vital elements of a cause of action based on a contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration. As to the basic elements, there is no difference between an express and an implied[-in-fact] contract.” (Pacific Bay Recovery Inc. v. California Physicians’ Services, Inc. (2017) 12 Cal.App.5th 200, 215.) “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “‘While an express contract is defined as one, the terms of which are stated in words (Civil Code, § 1620), an implied [in fact] contract is an agreement, the existence and terms of which are manifested by conduct (Civ. Code, § 1621)…[B]oth types of contract are identical in that they require a meeting of minds or an agreement [citation]. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established [citation].’ [Citation.]” (Pacific Bay Recovery, supra, 12 Cal.App.5th at 215-16.) “Unlike an implied-in-fact contract, an implied-in-law contract or quasi-contract is not based on the intention of the parties, but arises from a legal obligation that is imposed on the defendant. [Citation.] ‘The right to restitution or quasi-contractual recovery is based upon unjust enrichment. Where a person obtains a benefit that he or she may not justly retain, the person is unjustly enriched. The quasi-contract, or contract ‘implied in law’ is an obligation … created by the law without regard to the intention of the parties, and is designed to restore the aggrieved party to his or her former position by return of the thing or its equivalent in money.’ [Citations.]” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 639.) (Italics in original.) In other words, “[q]uasi contractual recovery is based upon a benefit accepted or derived for which the law implies an obligation to pay. ‘Where no benefit is accepted or derived there is nothing from which such contract can be implied.’ [Citation.]” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 794.) (Emphasis added.)

“A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citations.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “The elements of a breach of oral contract are the same as those for breach of a written contract. [Citations.]” (Stockton Mortgage, Inc. v. Tope (2014) 223 Cal.App.4th 437, 453.)

In the body of the Complaint, Plaintiff alleges the following:

(Compl. ¶¶ 1, 15; Ex. A.) This is a reiteration of the description of the services to be rendered by Defendant, as stated in the attached invoice. (Compl. p. 10 – Ex. A.) Defendant demurs generally and specially; however, only general demurrers are allowed in limited jurisdiction. Defendant demurs generally on the ground that Plaintiff failed to plead allegations sufficient to constitute a cause of action for breach of contract. Specifically, Plaintiff has not attached the contract nor stated the terms of the contract in the Complaint. (Demurrer p. 2.) Plaintiff opposes, stating that the attached invoice and allegations in Paragraph 1 of the Complaint represent the terms of the contract.

The Court finds that the invoice and Plaintiff’s reiteration of the invoice are not sufficient indications of the existence of a contract and its terms. However, the alleged facts demonstrate the that an agreement took place between Plaintiff and Defendant that may have been conducted orally or through the actions of each party. The allegations survive the demurrer because they demonstrate the existence of an agreement.

Defendant’s DEMURER as to the breach of contract cause of action is OVERRULED.

D. Second Cause of Action – Unjust Enrichment

a. Plaintiff JTG’s Allegations

The Complaint alleges that on or about September 22, 2019, Plaintiff and Defendant entered into an agreement whereby:

Plaintiff cites to Astiana v. Hain Celestial Group for the Ninth Circuit holding that “[w]hen a plaintiff alleges unjust enrichment, a court may construe the cause of action as a quasi-contract claim seeking restitution.” ((2015) 783 F.3d 753, 762, Compl. ¶ 23.) Thus, Plaintiff realleges Defendant accepted full payment for services, did not perform the agreed upon services and did not return Plaintiff’s payments. (Compl. ¶ 24.) Defendant has “received the benefit by having possession and the use of the money that Plaintiff paid Defendant in advance” and, thus, has been unjustly enriched. (Ibid. at ¶¶ 25-26.) “As a direct and proximate result of the acts or omissions” of Defendant, Plaintiff has suffered damages.

b. Defendant Eyraud’s Demurrer

Defendant demurs to Plaintiff’s unjust enrichment cause of action for failure to state facts sufficient to constitute a cause of action. (Demurrer p. 2.) Defendant states that “unjust enrichment” is not a cause of action and cites to McBride v. Boughton (2004) 123 Cal.App.4th 379, 378, that it is a general principal “synonymous with restitution.”

c. Plaintiff JTG’s Opposition to Demurrer

Plaintiff argues that California courts “have frequently construed cause of action labeled ‘unjust enrichment’ as a ‘quasi-contract claim seeking restitution.’ Mohebbi, supra, 50 F.Supp.3d at 1260 (quoting Rutherford Holdings, LLC v. Plaza Del Rey, (2014) 223 Cal.App.4th 221, 231.” (Opposition at p. 13.) Plaintiff also cites to appellate court authorities for this contention, including Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.

d. Defendant Eyraud’s Reply to Opposition to Demurrer

In its Reply to the Opposition, Defendant reiterates its statements from the Demurrer that unjust enrichment does not constitute a cause of action. (Reply p. 9.)

e. Analysis

While unjust enrichment is not a cause of action, courts have stated that unjust enrichment is synonymous with restitution and allowed recovery where the plaintiff asserts a proper basis for recovering restitution.¿ (See¿Durrell v. Sharp Healthcare¿(2010) 183 Cal.App.4th 1350, 1370;¿McBride v.¿Boughton¿(2004) 123 Cal.App.4th 379, 387-88.) Under the law of restitution, an individual may be required to make restitution if he is unjustly enriched at the expense of another. (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51.) A person is enriched if he receives a benefit at another's expense. (Ibid.) The term “benefit” denotes any form of advantage; thus, a benefit is conferred not only when one adds to the property of another, but also when one saves the other from expense or loss. (Ibid.) Yet, even when a person has received a benefit from another, he is required to make restitution only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for him to retain it. (Ibid.)

According to the allegations in the Complaint, Defendant has received the benefits of the agreement, via payment, and not rendered the services promises. Plaintiff may be able to recover under this quasi-contract doctrine. The Court finds that here, Plaintiff’s allegations assert a proper basis for recovering restitution.

Therefore, Defendant Eyraud’s Demurrer to the Complaint’s unjust enrichment doctrine is OVERRULED.

E. Third Cause of Action – Conversion

a. Plaintiff JTG’s Allegations

The Complaint alleges that on or about September 22, 2019, Plaintiff and Defendant entered into an agreement whereby:

Plaintiff alleges that Defendant was paid $21,000 in advance for the services, did not perform the services, and retained the money. (Ibid. at ¶ 30.) Plaintiff requested a refund, but Defendant failed to return the money and thus, “intentionally and substantially interfered with Plaintiff’s ownership and possession of said monies.” (Ibid.) Defendant’s failure to return the money was a substantial factor in causing Plaintiff harm. (Ibid. at ¶ 31.)

b. Defendant Eyraud’s Demurrer

Defendant demurs to Plaintiff’s conversion cause of action for failure to state facts sufficient to constitute a cause of action and for being ambiguous and unintelligible. (Demurrer p. 2.) He argues that “Plaintiff cannot maintain a ‘conversion’ cause of action and has not plead [sic] all of the required elements for the cause of action itself.” (Ibid. at p. 11.)

c. Plaintiff JTG’s Opposition to Demurrer

Plaintiff does not address Defendant’s demurrer as to the conversion cause of action.

d. Defendant Eyraud’s Reply to Opposition to Demurrer

In its Reply to the Demurrer, Defendant states that Plaintiff has only pled that it paid Defendant for services in the amount of $21,000, but has not pled specific damages and thus, has not pleaded the required elements for a cause of action for conversion.

e. Analysis

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp.¿(2007) 148 Cal.App.4th 97, 119.)¿¿“Money may be the subject of conversion if the claim involves a specific, identifiable sum . . . .” (Welco¿Electronics, Inc. v. Mora¿(2014) 223 Cal.App.4th 202, 209.)¿

Defendant demurs both generally and specially to this cause of action, but the Court can only assess the general demurrer. Defendant states that Plaintiff has not pleaded facts sufficient for a cause of action in conversion. In the Reply, Defendant states that Plaintiff had to plead an identifiable sum for the cause of action in conversion and because he has requested damages in an amount to be proven at trial, Plaintiff has not alleged sufficient damages for a conversion cause of action. However, taking all the allegations in the Complaint, along with Paragraph 31, which states that “Plaintiff was harmed as a result of Defendant’s failure to return the $21,000.00 back to Plaintiff,” the Court finds that Plaintiff did plead facts sufficient to support the damages element for a conversion cause of action.

Therefore, Defendant Eyraud’s Demurrer to the Complaint’s conversion cause of action is OVERRULED.

F. Motion to Strike

In its Motion to Strike, Defendant moves to strike the following portions from the Complaint:

1) “For costs of suit incurred herein” (Prayer for Relief, line 10, Page 8)

2) “For costs of suit incurred herein” (Prayer for Relief, line 16, Page 8)

3) “For costs of suit incurred herein” (Prayer for Relief, line 21, Page 8)

4) “For damages in an amount to be proven at trial” (Prayer for Relief, line 19, Page 8)

(Motion to Strike, p. 2.) Defendant’s reference to the lines is unclear as there are no lines 10, 16, 19, or 21 in the Complaint. However, the Court will consider Plaintiff’s prayer for relief in the form of “costs of suit incurred herein” for each of the three causes of action. The Court will also consider Defendant’s request to strike “for damages in an amount to be proved at trial” for the Conversion cause of action.

Defendant argues that “attorney fees are improper because claims themselves are legally insufficient, lack the required specificity and fail to state a claim against the Defendant.” (Ibid. at p. 4.) Defendant also argues that the Complaint does not provide any facts or refer to any statue that would allow recovery of attorney’s fees and costs. (Ibid. at pp. 4-5.)

Defendant also states that Plaintiff’s prayer for relief for conversion improperly asks for “damages in an amount to be proven at trial” which is an indefinite sum of damages and a claim for conversion cannot be made in regard to money unless a specific sum is identified. (Ibid. at p. 4 (citing PCO, Inc. v. Christiansen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395-96.)

Plaintiff did not oppose Defendant’s Motion to Strike and on July 25, 2022, Defendant filed a Notice of Plaintiff’s Non-Opposition to Defendant’s Motion to Strike.

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike 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.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.) Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5(a).)

As discussed above, Plaintiff and Defendant have satisfied the meet and confer requirement as set forth in their attorneys’ declarations.

“Costs of suit” are not synonymous with, or inclusive of, attorney’s fees. As set forth in Code Civ. Proc. §1032, “except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Recoverable costs are defined in Code Civ. Proc. §1033.5. As noted, attorney’s fees are only recoverable pursuant to statute or contract, but that does not impact the recovery of costs. Accordingly, Defendant’s request to strike Plaintiff’s request for costs is DENIED.

With regard to the conversion claim, however, money may be the subject of conversion only if the claim involves a specific, identifiable sum . . . .” (Welco¿Electronics, Inc. v. Mora¿(2014) 223 Cal.App.4th 202, 209.)¿ Plaintiff’s prayer for “damages in an amount to be proved at trial” is insufficient. Accordingly, the Court GRANTS Defendant’s Motion to Strike prayer for relief in the form of “damages in an amount to be proved at trial” for the conversion cause of action, with 20 DAYS LEAVE TO AMEND.

V. Conclusion & Order

For the foregoing reasons:

Defendant Rick Eyraud’s DEMURRER on the grounds of res judicata and collateral estoppel is OVERRULED.

Defendant Rick Eyraud’s DEMURRER to the Complaint’s (1) breach of contract and (2) unjust enrichment, and 3) conversion causes of action is OVERRULED.

Defendant Rick Eyraud’s MOTION TO STRIKE is DENIED as to the prayer for relief in the form of costs incurred in the lawsuit for each of the three causes of action and GRANTED as to the prayer for relief in the form of damages in an amount to be proven at trial for the conversion cause of action.

Moving party is ordered to give notice.