Judge: Latrice A. G. Byrdsong, Case: 23STLC04420, Date: 2024-01-29 Tentative Ruling

Case Number: 23STLC04420    Hearing Date: January 29, 2024    Dept: 25

Case Name:                             DG LUMBAR GROUP, INC. v. ENRIQUE CRUZ AKA RICHARD CRUZ; ENRIQUE A. CRUZ MASONRY, INC; and DOES 1-20, inclusive

Case No.:                                23STLC04420

Motion:                                   Demurrer to Plaintiff’s First Amended Complaint

Moving Party:                         Defendants Enrique Cruz and Enrique A. Cruz Masonry, Inc.

Responding Party:                   Plaintiff DC Lumbar Group, Inc.

Notice:                                    OK

Tentative Ruling:                    Defendant Enrique Cruz’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

                                                Defendant Enrique A. Cruz Masonry, Inc.’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Defendants are ordered to file their answers within 20 days of this Court’s ruling.

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 as of January 16, 2024                           [   ] Late          [   ] None 

REPLY:                     None filed late as of January 22, 2024           [   ] Late          [X] None 

BACKGROUND

A. Factual

The First Amended Complaint (“FAC”) of DG Lumbar Group, Inc. (“Plaintiff”) alleges that Plaintiff and Enrique Cruz and Enrique A. Cruz Masonry, Inc. (collectively “Defendants”) entered a contract around January 11, 2022, whereby Plaintiff agreed to provide building supplies to Defendants in exchange for payment.  Plaintiff alleges that the invoices created memorialized the agreement with the quantity and cost for the building supplies purchased by Defendants. According to these invoices, deliveries of the goods occurred on January 11 and 12, 2022. As a result of those deliveries, Defendants owed $7,543.44. The amount remains due and unpaid. Plaintiff further alleges that it has fully complied with the terms of the agreement, which only required delivery of the materials, and that Defendants have failed to comply with their end of the deal by failing to make payments for the materials delivered.

B. Procedural

On July 13, 2023, Plaintiff filed the following causes of actions against Defendants: 1) Breach of Contract, 2) Open Book Account, 3) Account Stated, 4) Restitution; and 5) Goods and Services Rendered.

On August 31, 2023, Plaintiff filed its FAC for the same causes of action.

On December 13, 2023, Defendants filed the instant Demurrers to Plaintiff’s FAC. Plaintiff replies in opposition. No reply has been filed.

MOVING PARTY POSITION

            Defendants pray for the Court to sustain their demurrers and dismiss Plaintiff’s FAC regarding all five causes of actions. Defendants argue that Plaintiff’s complaint fails to state facts sufficient to constitute any of the causes of action.

OPPOSITION

            In opposition, Plaintiff prays for the Court to overrule the demur because Plaintiff states sufficient facts to state its causes of actions against Defendants. Plaintiff asserts that the amended complaint sufficiently alleges causes of actions against all Defendants and that the FAC included invoices for the services rendered by Plaintiff to Defendants. In the alternative, Plaintiff argues the Court should permit Plaintiff leave to amend if the Court sustains the demurrer.

REPLY

            No reply has been filed.  

ANALYSIS

I.          Legal Standard

 “The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) 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.” (E-Fab, 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, 128.) 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).

II.        Discussion

Plaintiff states the following causes of action in its complaint against Defendant: 1) Breach of Contract, 2) Open Book Account, 3) Account Stated, 4) Restitution, and 5) Goods and Services Rendered.

As a preliminary matter, the Court notes that Defendants’ motions to special demur Plaintiff’s FAC is improper. Only general demurrers are allowed in limited civil cases. Additionally, the Court will not address whether Plaintiff states sufficient facts concerning its fourth cause of action for restitution. Courts generally have restitution as a remedy and not a freestanding cause of action. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 362.) As such, the Court’s analysis will focus on Plaintiff’s causes of action for the following: 1) Breach of Contract, 2) Open Book Account, 3) Account Stated, and 5) Goods and Services Rendered. 

            A. Meet and Confer Requirement

The demurring party must meet and confer in person or by telephone with the party who filed the pleading to resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Here, Defendant provides the Court with a declaration from its counsel, who states that counsel for the parties spoke telephonically to discuss the merits of the complaint “pursuant to Civ. Code Section 430.4.” (Roland R. Tijerina Decl. ¶ 4.) Specifically, Defendants’ challenges to operative complaint predicated on all five causes of action. (Id. ¶ 5.) After their discussions, on December 05, 2023, Plaintiff’s counsel advised via voicemail, “... go ahead and proceed with your demurrer just because I don’t think there will be any resolution…” (Id. ¶ 7.) Around December 11, 2023, Defendants’ counsel sought to confirm the parties’ attempt to meet and confer in compliance with CCP §430.41, but to no avail. (Id. ¶ 9.) Thus, the Court finds that Defendant has satisfied the meet and confer requirement under CCP § 430.41(a).

The Court now moves to the merits of the demurrer.

B. First Cause of Action – Breach of Contract.

To state a cause of action for breach of contract, Plaintiff must be able to establish “(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.)

If a breach of contract claim “is based on 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 agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “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.)

Plaintiff alleges the following in its FAC that applies to each cause of action. Plaintiff and Defendants entered a contract around January 11, 2022, whereby Plaintiff agreed to provide building supplies to Defendants in exchange for payment. (Compl. ¶¶ 6, 12.) Per the agreement, the goods were to be delivered to Defendants by Plaintiff. Plaintiff alleges that the Invoices created memorialized the agreement with the quantity and cost for the building supplies purchased by Defendants. (Id. ¶ 12.; Exhs. A and B.) According to these invoices, deliveries of the goods took place on January 11 and 12, 2022. (Id. ¶ 7.) As a result of those deliveries, the Defendants owed the sum of $7,543.44. (Id. ¶ 8.) The amount remains due and unpaid. (Id.) Plaintiff further alleges that it has fully complied with the terms of the agreement, which only required delivery of the materials, and that Defendants have failed to comply with their end of the deal by failing to make payments for the materials delivered. (Id. ¶ 14.)

Here, the Court finds that the FAC adequately pleads enough facts to have a cause of action for breach of contract. Here, Plaintiff alleges that the parties agreed that Plaintiff would deliver building supplies in exchange for payment from Defendants. Plaintiff alleges that it performed per the agreement and that Defendants breached when they did not pay for the building supplies. This nonpayment resulted in damages to Plaintiff. Thus, Plaintiff pleads enough facts to have a cause of action for breach of contract.

C. Second Cause of Action – Open Book Account

The elements of an open book account cause of action are: “1. That [plaintiff] and [defendant] had financial transactions ... ; [¶] 2. That [plaintiff] ... kept [an] account of the debits and credits involved in the transactions; [¶] 3. That [defendant] owes [plaintiff] money on the account; and [¶] 4. The amount of money that [defendant] owes [plaintiff].” (State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449.)

Here, the same facts are alleged above. Plaintiff provides evidence that the parties had two financial transactions for the purchase and delivery of building supplies for the sum of $7,543.44. (Compl. ¶ 16; Exhs. A and B.) Plaintiff kept an account of the debts through its invoices of the transactions between the parties. (Id.) Defendants owe Plaintiff $7,543.44 because Defendants failed to make payment on the due date. (Id. ¶ 17.) Finally, Plaintiff alleges that Defendants owes $7,543.44. Thus, based on the facts in the complaint, Plaintiff properly pleads a cause of action for the open book account.  

D. Third Cause of Action – Account Stated

“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 C.A.2d 597, 600.)

Here, Plaintiff provides the Court with evidence of previous transactions between the parties by providing the two invoices documenting the parties’ agreement to deliver building supplies in exchange for payment for the deliveries. Plaintiff further alleges that within the past year, there has been an existing debt on the building supplies delivered to Defendants. (Compl. ¶ 21.) Defendants were emailed as recently as January 17, 2023, in addition to receiving a statement on March 21, 2023, and a letter on March 22, 2023, reflecting the outstanding balance due. (Id. ¶ 22.) Plaintiff alleges that Plaintiff failed to object to the correspondences or provide a proper accounting, thereby acknowledging and agreeing to the correctness of the account.

Defendants argue that Plaintiff failed to plead any relationship between Plaintiffs and the Defendants. Further Defendants’ nonresponse is not an acquiescence to pay the alleged debt but an indication that no such financial relationship exists. However, Defendant appears to misunderstand the purpose of a demurrer. “A demurrer tests the pleading alone, not the evidence or facts alleged.” (E-Fab, 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.) In other words, the Court cannot enter a factual dispute over the contents of the pleading. Thus, Defendants’ arguments about whether there was an actual relationship or whether they agreed to pay the alleged debt amount are factual inquiries that are improper for the demurrer.

Thus, the Court finds that Plaintiff has pleaded enough facts to have a cause of action for account stated.

E. Fifth Cause of Action – Common Count: Goods and Services Rendered.

“The essential allegations of a common count ‘are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment’” (Allen v. Powell (1967) 248 Cal.App.2d 502, 510.)

Here, the Court finds that the FAC adequately pleads enough facts to have a cause of action for goods and services rendered. Here, Plaintiff similarly provides evidence of indebtedness using the same facts claimed in part B of this order. Plaintiff further alleges that Defendants received the benefits of Plaintiff’s goods and services. (Compl. ¶ 31.) Finally, Plaintiff alleges nonpayment in its complaint when it says that Defendants now owe an unpaid sum of $7,543.44 and interest at the legal rate. (Id. ¶ 32.)

Thus, the Court finds Plaintiff to have properly pleaded enough facts to have a cause of action for: 1) Breach of Contract, 2) Open Book Account, 3) Account Stated, and 5) Goods and Services Rendered. 

Accordingly, the Court OVERRULES Defendants’ Demurrers.

III.       Conclusion

            Defendant Enrique Cruz’s Demurrer to Plaintiff’s FAC is OVERRULED.

            Defendant Enrique A. Cruz Masonry, Inc.’s Demurrer to Plaintiff’s FAC is OVERRULED.

            Defendants are ordered to file their answers within 20 days of this Court’s ruling.

Moving parties are ordered to give notice.