Judge: Margaret L. Oldendorf, Case: 23BBCV02032, Date: 2024-02-16 Tentative Ruling

Case Number: 23BBCV02032    Hearing Date: February 16, 2024    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is a personal injury case. Plaintiff Barri Whittaker alleges that she was hired by defendant Katherine Lee to exercise a horse Lee owned. Whittaker alleges that on January 19, 2023, she fell off and sustained injuries.  She sues for negligence, fraud and unjust enrichment.

Whittaker filed this action on September 1, 2023. Defendant Lee demurred to the Complaint on December 14, 2023. The demurrer is opposed, Whittaker filed an opposition on February 1, 2024.

          Lee alleges in her demurrer that the second and third causes of action of the Complaint for fraud and unjust enrichment fail to state a valid cause of action, and/or are  uncertain.

          For the reasons set forth below, the demurrer is sustained with leave to amend.

II. REQUEST FOR JUDICIAL NOTICE

Defendant requests judicial notice of the complaint in this action. Though it is not necessary to take judicial notice of papers already in the court file, the request is granted.  (See Evid. Code, § 452, subd. (d).) (Evid. Code § 453; Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754-755.)

Accordingly, judicial notice is taken of Exh. A.

III.     LEGAL STANDARD

B. Law Governing Demurrers 

A general demurrer lies where a complaint fails to state a cause of action. (CCP § 430.10(e).) A demurrer challenges defects appearing on the face of the complaint or in material of which judicial notice may be taken. (CCP § 430.30.) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  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.) Allegations need not be accepted as true if they are contradicted by judicially noticeable facts. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474.) Unambiguous facts appearing in exhibits attached to the complaint are judicially noticed and given precedence over inconsistent allegations in the complaint. (See, e.g., Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627; Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.)

Code Civ. Proc. Section 430.10(f) provides for a demurrer where a pleading is uncertain. (CCP § 430.10(f).) Demurrers for uncertainty are disfavored and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

IV.     DEMURRER

A.  Meet and Confer

Lee offers the meet and confer letter of her attorney in support of meet and confer efforts prior to filing the demurrer. Lee’s counsel, Phillip T.S. Tukia, telephoned plaintiff’s attorney on December 8, 2023 in an attempt to meet and confer. (Tukia Decl. ¶ 2.) On December 11, 2023, Tukia called again and left a message with a paralegal. (Tukia Decl. ¶ 3.)  He also sent a meet and confer letter on December 11, 2023, but did not receive a response. (Exh. A.) The meet and confer letter is attached as Exh. A to the motion.

Counsel’s declaration is sufficient for meet and confer purposes.

B. Cause of Action for Fraud

The policy of liberal construction does not apply to claims for fraud. Fraud actions are subject to “strict requirements of particularity in pleading.  . . . Accordingly, the rule is everywhere followed that fraud must be specifically pleaded. The effect of this rule is twofold: (a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded by statute on other grounds.) A fraud cause of action must contain: “(1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, citations omitted.) 

This required particularity is missing here. The second cause of action refers generally to  “false information” and “representations and omissions” given by Lee to Whittaker but does not indicate how, when or where these statements occurred. The complaint alleges “Wiley [the horse at issue] had previous incidents of bucking and aggression which was not disclosed at the time of Ms. Lee’s offer or any other time subsequent to their mutual agreement.” (Complaint ¶ 7.) In the section detailing “misrepresentations,” the Complaint provides “Ms. Lee had informed Ms. Whittaker that she took the horse out regularly and had been properly trained and cared for.” (Complaint ¶ 24.) Additionally, “Ms. Whittaker was not made aware of this isolation and was told the contrary.” (Complaint ¶ 33.) Additionally, the detail concerning the substance of misrepresentations is not specifically set forth.

In opposition, Whittaker does not directly address these defects, but rather simply reproduces the relevant sections of the Complaint.

Consequently, the demurrer to the second cause of action is sustained.

C. Cause of Action for Unjust Enrichment

Unjust enrichment requires: (1) receipt of a benefit and (2) unjust retention of the benefit at the expense of another person/entity. (Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726.) “It is of course the law that when one obtains a benefit which may not be justly retained, unjust enrichment results, and restitution is in order. However, the mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.” (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 134, internal citations omitted.) If a plaintiff gets the exchange he/she/they expected, restitution cannot be invoked. (Comet Theatre Enterprises, Inc. v. Cartwright (1952) 195 F.2d 80, 83.)

The complaint alleges that “Defendants, Ms. Lee and DOES 1 to 50, have received services from the Plaintiff at a reduced rate for the exercise of Wiley, which the Plaintiff would not have accepted had she known of the true nature of care for the animal.” (Complaint ¶ 61.) Further, “Plaintiff would not have taken the job or would have required higher compensation of the work.” (Complaint ¶ 63.) Plaintiff offered Defendant horse  exercising services at a reduced rate, and is now suing for unjust enrichment on exactly that; alleging that she was not adequately paid for her services.

It is not necessarily unjust for Defendant Lee to receive the benefit she had contracted for (e.g., exercising services at a reduced rate), without an additional showing that Lee’s retention of this benefit would be unjust. Restitution cannot be invoked when the plaintiff got the exchange she expected, which is basically what Whittaker pleads here.

In opposition, Whittaker alleges that she did not receive the benefit she contracted for, as she contracted for her reduced rate services expecting, essentially, a better-behaved horse. (Opposition p. 9: 5-9.) To the extent that this claim rests upon the cause of action for fraud, the Court refers Whittaker to the discussion of the second cause of action above.  Without further allegations of the true nature of care of the horse, or the misrepresentations that were the impetus for the contract, the demurrer must be sustained as to this cause of action as well. 

Accordingly, the demurrer to the third cause of action for unjust enrichment is sustained.

V. ORDER

          Demurrer is sustained as to the second and third causes of action. Plaintiff Barri Whittaker is given 20 days to file an amended complaint.   

          Notice of this ruling is to be given by Defendant Lee.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT