Judge: Michael Shultz, Case: 21CMCV00194, Date: 2022-07-28 Tentative Ruling

Case Number: 21CMCV00194    Hearing Date: July 28, 2022    Dept: A

21CMCV00194 WILLIAMS SCOTSMAN, INC. V. WILD WEST INVESTMENT GROUP, IN C., ET AL.

[TENTATIVE] ORDER SUSTAINING DEMURRER TO COMPLAINT WITH LEAVE TO AMEND

I.        BACKGROUND

The complaint filed on July 26, 2021, seeks recovery of accrued charges owed by Defendants for the rental of a modular unit from Plaintiff pursuant to a written agreement. Defendants allegedly failed to return the unit. Plaintiff alleges claims for breach of contract, common counts, possession of the unit (replevin), and conversion.

Plaintiff amended the complaint on January 24, 2022, to substitute Defendant, FCC Logistics, Inc. (“FCC”), for Doe 1. On May 20, 2022, Plaintiff dismissed the first and second causes of action against FCC only for breach of contract and account stated, respectively.

II.      DEMURRER TO THE COMPLAINT

A.      Demurrer filed on June 20, 2022.

              Defendant FCC demurs to the remaining claims alleged against it because Plaintiff did not allege an existing contract with FCC to support the third cause of action for reasonable value of the services and materials rendered at Defendant’s request. Defendant also demurs to the fourth cause of action for possession of the unit and the fifth cause of action for conversion since Plaintiff did not allege that FCC has possession of the unit. The only Defendant alleged to have contracted with Plaintiff and who has control and possession of the unit is Defendant, Wild West Investment Group, Inc. (“Wild West”).

B.      Opposition filed on July 13, 2022

              Plaintiff argues that FCC owns the land in Gardena, California where the modular trailer is being used as an office. Since FCC currently has possession, the third, fourth, and fifth causes of action are properly alleged. Plaintiff argues that the trailer is being used by FCC’s current tenant and is likely receiving rent from the new tenant.

              Plaintiff concedes that the conversion claim does not incorporate the allegations of the claim for possession, but requests leave to amend at the time of the hearing.

C.      Reply filed on July 21, 2022

              FCC argues that Plaintiff is asserting facts in opposition that are outside the complaint’s allegations. Plaintiff admits there is no express contract between Plaintiff and FCC. Plaintiff did not allege that FCC owns the land where the trailer is being used. Plaintiff admits that the fifth cause of action incorporates the wrong cause of action. Defendant asks the court to deny Plaintiff leave to amend.

III.       LEGAL STANDARDS

              A motion for judgment on the pleadings may be granted on grounds the complaint fails to state a cause of action or the court lacks jurisdiction over the matter. Code Civ. Proc., § 438(b). A non-statutory motion for judgment on the pleading can be made at any time either prior to the trial or at the trial itself. Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650. The motion performs the same function as a general demurrer and attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064. “Judicial notice” is the recognition and acceptance by the court of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.

              The general rules that apply to demurrers also apply to motions for judgment on the pleadings. All facts alleged in the complaint are deemed admitted, the complaint is given a reasonable interpretation, and is read as a whole. Ludgate v. Lockheed (2000) 82 Cal.App.4th 592, 602. The court is “not concerned with a plaintiff's possible inability to prove the claims made in the complaint, the allegations of which are accepted as true and liberally construed with a view toward attaining substantial justice. [Citations.]” Ludgate at 602.

IV.       DISCUSSION

A.      Third cause of action for common counts

              The claim, identified by Plaintiff as one for quantum meruit, alleges that Plaintiff performed work, labor, services, and materials at Defendant’s request and for which Defendant promised to pay. Complaint, page 5. A common count can be based on an express contract, an implied-in-fact contract, or a quasi-contract. Ferro v. Citizens Nat. T&S Bank (1955) 44 Cal.2d 401, 409. Demurrer to a common count is properly sustained 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. The validity of a common count claim is dependent upon whether a basis of recovery is adequately set forth in the other causes of action.”  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 601.

              Plaintiff’s opposition concedes that the claim for quantum meruit is not based on the previously alleged claims for breach of contract based on an agreement made with Defendant, Wild West. Rather, Plaintiff’s opposition describes a separate set of facts on which FCC is liable for the unpaid rental fees, namely that the trailer was furnished to FCC’s tenant who vacated the property and is now defunct. Plaintiff contends FCC is getting free use of the trailer and is benefiting from its possession. See Opp. 4:9-16.

              None of these facts are alleged in the complaint and does not place FCC on notice of the claims alleged against it. Accordingly, demurrer is sustained to the third cause of action.

B.      Fourth cause of action for possession (replevin) of the modular trailer.

              Plaintiff alleges that the trailer sits on land vested to Defendants.  Does 6-10. Said vested owners of the land are in possession of Plaintiff’s trailer. Complaint, page 6, ¶ 4. However, Plaintiff substituted FCC for Doe 1 who is alleged to have obtained possession pursuant to a written lease agreement and then defaulted. Complaint, page 6, ¶ 3. The new facts on which liability against FCC are based are not alleged. Therefore, demurrer is sustained to the fourth cause of action.

C.      Fifth cause of action for conversion.

              To support a claim for conversion, Plaintiff must allege facts showing an ownership interest or a right to possession of property at the time of conversion, a wrongful act or dispossession of Plaintiff’s property rights, and resulting damages. Lee v. Hanley (2015) 61 Cal.4th 1225, 1240. Plaintiff incorporates allegations made in the third cause of action, which seeks the balance owing on rental invoices. Complaint, page 5. Plaintiff concedes that this claim is instead based on the fourth cause of action for possession. Opp. 7:18-20. As stated above, both the third and fourth causes of action are defective in that they are based on facts not alleged in the complaint. Therefore, demurrer to the fifth cause of action is sustained.

V.         CONCLUSION

              Based on the foregoing, demurrer to the third, fourth, and fifth causes of action is sustained. Leave to amend is proper where Plaintiff has not had a fair opportunity to amend, and the defect is capable of being cured. Even if the defect is substantive, “a demurrer should not be sustained without leave to amend if there is a possibility that subsequent amendments will supply omitted allegations.” Colvig v. RKO Gen. (1965) 232 Cal. App. 2d 56, 69 70. Accordingly, the court grants Plaintiff 10 days leave to amend. Cal Rules of Court, Rule 3.1320.