Judge: Margaret L. Oldendorf, Case: 22AHCV00274, Date: 2023-02-02 Tentative Ruling

Case Number: 22AHCV00274    Hearing Date: February 2, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This is a collections action alleging three common counts. The pleading is admittedly bare bones. Before the Court is an equally bare-bones demurrer. As the essential elements of the common counts are pleaded, the demurrer is overruled.

II.        LEGAL STANDARD

Code Civ. Proc. §430.10 (e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.

III.      ANALYSIS

            The gist of the complaint here is that Defendant owes Plaintiff $78,428.88. The first cause of action alleges that Defendant became indebted to Plaintiff in this amount for goods and/or services rendered. The second cause of action alleges that Defendant became indebted in this amount on an open-book account. And the third cause of action alleges a written account stated in this amount.

            A general demurrer such as this is proper where a pleading fails to state sufficient facts to state a cause of action. Defendant argues that is true here, urging that, “Plaintiff failed to state any fact why Defendant owed money to Plaintiff.” That argument fails.

            “ ‘As Witkin states in his text, “A common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” [Citation.]’ (Kawasho Internat., U.S.A., Inc. v. Lakewood Pipe Service, Inc. (1983) 152 Cal.App.3d 785, 793, 201 Cal.Rptr. 640.) A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract. (See Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623, 33 Cal.Rptr.2d 276; Kawasho Internat., U.S.A., Inc. v. Lakewood Pipe Service, Inc., supra, 152 Cal.App.3d at p. 793, 201 Cal.Rptr. 640.)” Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.

            The facts alleged here, while minimal, are sufficient to support the common counts alleged.

            Defendant cites Ferro v. Citizens National Trust and Savings Bank of Los Angeles (1955) 44 Cal.2d 401, 409, urging that it supports a demurrer to common counts “where the plaintiff is not entitled to recover under those counts in the complaint wherein all the facts upon which his claim is based are specifically pleaded.” This argument does not apply in the context of this case. Ferro stands for the proposition that a claim for money had and received will not lie in an action to enforce express contract, if the plaintiff owes some further performance.  It is unclear how that holding applies here.

IV.      CONCLUSION

            The demurrer is overruled. Defendant has 10 days to answer.

            Plaintiff is ordered to give notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT