Judge: Mark H. Epstein, Case: 21SMCV01787, Date: 2022-12-08 Tentative Ruling

Case Number: 21SMCV01787    Hearing Date: December 8, 2022    Dept: R

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND IN PART AND SUSTAINED WITH LEAVE TO AMEND IN PART.

 This is a demurrer to the third, fourth, and ninth causes of action.  Plaintiff concedes that the demurrer is well taken as to the third and fourth causes of action, and therefore the demurrer is SUSTAINED WITHOUT LEAVE as to those causes of action.

The fight is in the ninth cause of action, which is money had and received.  Essentially, plaintiff is a landlord suing defendant, a tenant.  Plaintiff contends that defendant received PPP money that was designated to be used for the payment of rent.  Defendant claims that there are not enough allegations to establish money had and received.

Money had and received means that the defendant received money that was specifically to be used for plaintiff’s benefit, but was not actually so used.  (For example, a defendant receives $200 to pay for an appliance that was to be delivered to plaintiff, but defendant kept the money and refused to deliver the appliance.)  The court cannot tell from the complaint whether this is adequately pled.  Simply receiving PPP money will not be sufficient.  Even receiving PPP money that could have been used to pay rent is not sufficient.  And even sending the PPP money that was received to a parent company where it was used for other purposes unrelated to the entity that actually got the money will not be sufficient.  Rather, plaintiff must plead that defendant received PPP money that was specifically earmarked to be used to pay the landlord—that is, to pay plaintiff the rent—but that it was not so used; it is not enough that such would be one of many proper purposes.  The complaint does not adequately so allege and therefore the demurrer is SUSTAINED.  It is not clear that such an allegation cannot be made, however.  Accordingly, leave to amend is granted to allow plaintiff to plead with the requisite factual basis for the claim.  While ultimate facts may be alleged, there still have to be sufficient facts alleged to establish the cause of action.

 Plaintiff has 30 days’ leave to amend.