TENTATIVE RULING

Plaintiff/Cross-Defendant Keyhan Ghotbi’s Demurrer to Cross-Complainant, Rouhani Construction, Inc.’s Second Amended Cross-Complaint (Erroneously Filed as First Amended Cross-Complaint on 05/20/2024) is OVERRULED.

Plaintiff/Cross-Defendant Keyhan Ghotbi shall file and serve an answer to Cross-Complainant Rouhani Construction, Inc.’s Second Amended Cross-Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Plaintiff/Cross-Defendant Keyhan Ghotbi to give notice. 

REASONING

Plaintiff/Cross-Defendant Keyhan Ghotbi (“Plaintiff”) demurs to each cause of action alleged in Cross-Complainant/Defendant Rouhani Construction, Inc. (“Defendant”)’s Second Amended Cross-Complaint (“SACC”). The Court notes that the pleading is said to be the First Amended Cross-Complaint, but it is the Second Amended Cross-Complaint, and the Court refers to it as such.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

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.)

Defendant alleges that it entered into a written agreement with Plaintiff for services, material, and delivery of material for construction of the property in January 29, 2021; Plaintiff agreed to pay Defendant for services and material provided and work performed; Plaintiff made partial payment, leaving a balance of $25,000; Defendant has performed all conditions and obligations under the contract; and Plaintiff has failed to compensate Defendant as required under the contract. (SACC ¶¶ 9-12, 15-17.) Defendant has also provided a copy of the subject agreement as an exhibit to the SACC. (SACC ¶ 15, Ex. A.) While the Court previously found the allegations in this claim to be insufficient, this was based on the failure to allege the terms of the agreement or provide a copy of the same, and Defendant has now done so. The agreement states that the terms of payment are set forth on a schedule of payments, and if no schedule of payments exists (SACC ¶ 15, Ex. A), this goes to the veracity of the claim, not whether a claim exists. Accordingly, Plaintiff’s demurrer to the first cause of action is OVERRULED.

Second Cause of Action: Common Counts

The required elements of a common count claim are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.)

Plaintiff demurs to the second cause of action on the ground that Defendant has alleged the existence of a written contract, thereby making his common counts claim improper because it is based on an express contract. Defendant may plead this claim in the alternative, and the Court finds this to be proper given there may be defenses against enforceability of the written contract. Thus, Plaintiff’s demurrer to the second cause of action is OVERRULED. Plaintiff/Cross-Defendant Keyhan Ghotbi shall file and serve an answer to Cross-Complainant Rouhani Construction, Inc.’s Second Amended Cross-Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)