Judge: Robert B. Broadbelt, Case: 21STCV16654, Date: 2024-01-22 Tentative Ruling

Case Number: 21STCV16654    Hearing Date: January 22, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant RTC Design and Build, Inc.

RESPONDING PARTY:       Plaintiff The Park at Cross Creek, LLC

(1)   Demurrer to First Amended Complaint

MOVING PARTY:                Defendant RTC Design and Build, Inc.

RESPONDING PARTY:       Unopposed

(2)   Motion to Strike Attorney’s Fees in First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer. 

The court considered the moving papers filed in connection with the motion to strike.  No opposition or reply papers were filed in connection with the motion to strike.

BACKGROUND

Plaintiff The Park at Cross Creek, LLC (“Plaintiff”) filed the operative First Amended Complaint in this action on May 26, 2022, against defendants Debello Holdings, LLC and RTC Design & Build, Inc.  The First Amended Complaint alleges three causes of action for (1) breach of contract, (2) negligence, and (3) unjust enrichment / restitution.

Defendant RTC Design and Build, Inc. (“Defendant”) now moves the court for an order (1) sustaining its demurrer to all the causes of action alleged by Plaintiff, and (2) striking from the First Amended Complaint the request for attorney’s fees.  

DEMURRER

The court overrules Defendant’s demurrer to the First Amended Complaint on the ground of uncertainty because the First Amended Complaint is not ambiguous or unintelligible.  (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Defendant’s demurrer to the first cause of action for breach of contract because it states facts sufficient to constitute a cause of action since Plaintiff has sufficiently alleged (1) that the subject agreement was intended to benefit Plaintiff because it contemplated work being performed to improve Plaintiff’s real property (FAC ¶ 9) and therefore Plaintiff has alleged sufficient facts to show that it is a third-party beneficiary of the agreement, and (2) the legal effect of the agreement.  (Code Civ. Proc., § 430.10, subd. (e); The H.N. & Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 37, 43 [“a person seeking to enforce a contract as a third party beneficiary must plead a contract which was made expressly for his [or her] benefit and one in which it clearly appears that he [or she] was a beneficiary”] [internal quotations omitted]; Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402 [“‘a plaintiff may plead the legal effect of the contract rather than its precise language’”].)

The court overrules Defendant’s demurrer to the second cause of action for negligence because it states facts sufficient to constitute a cause of action since Plaintiff has sufficiently alleged facts establishing (1) that Defendant owed a duty to Plaintiff to exercise ordinary care in the performance of its work on real property belonging to Plaintiff (FAC ¶¶ 7, 26) and (2) that Plaintiff has suffered damages as a result of Defendant’s breach because Plaintiff will have to expend funds to correct and repair the deficient work (FAC ¶ 13-17, 28).  (Code Civ. Proc., § 430.10, subd. (e); Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687 [“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages”].)

The court sustains Defendant’s demurrer to the third cause of action for unjust enrichment / restitution because, as pleaded, it does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).) 

The court acknowledges that Plaintiff (1) has alleged facts showing that Defendant has received benefits at the expense of Plaintiff and (2) is permitted to plead theories in the alternative.  (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 [elements of claim for unjust enrichment]; Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477 [“A plaintiff is permitted to plead alternative inconsistent theories”].)  However, in order to support a claim for unjust enrichment or restitution under a quasi-contract theory, Plaintiff must allege, in the alternative, that if the subject agreement is invalid, then Plaintiff is entitled to recover restitution.  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389 [“Although a plaintiff may plead inconsistent claims that allege both the existence of an enforceable agreement and the absence of enforceable agreement, that is not what occurred[;]” because the “unjust enrichment claim did not deny the existence or enforceability of [the] agreement” the plaintiffs were “precluded from asserting a quasi-contract claim under the theory of unjust enrichment”].)  Plaintiff did not alternatively allege that the subject agreement is invalid or unenforceable in support of its third cause of action for unjust enrichment / restitution and therefore has not alleged facts sufficient to constitute a cause of action under those theories.  

The court also notes that Plaintiff’s First Amended Complaint makes reference to “Exhibit A” but does not attach that exhibit to the complaint.  (FAC ¶ 19.)  Defendant has not cited authority establishing that the failure to attach an exhibit renders the complaint susceptible to demurrer and therefore overrules the demurrer on that ground.  (Demurrer, p. 4:12-15.)

MOTION TO STRIKE

Defendant moves the court for an order striking from Plaintiff’s First Amended Complaint (1) the request for attorney’s fees in paragraph 31, and (2) the request for attorney’s fees in paragraph 10 of the prayer.

The court grants Defendant’s motion to strike because Plaintiff has not alleged that it may recover attorney’s fees from Defendant pursuant to statute or contract and therefore finds that Plaintiff’s request for attorney’s fees is unsupported and improper.  (Code Civ. Proc., § 436.)

ORDER

The court overrules defendant RTC Design and Build, Inc.’s demurrer to plaintiff The Park at Cross Creek, LLC’s first and second causes of action.

The court sustains defendant RTC Design and Build, Inc.’s demurrer to plaintiff The Park at Cross Creek, LLC’s third cause of action for unjust enrichment / restitution.

The court grants defendant RTC Design and Build, Inc.’s motion to strike.

The court grants plaintiff The Park at Cross Creek, LLC 20 days leave to file a Second Amended Complaint that cures the defects set forth in this order.

The court orders defendant RTC Design and Build, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 22, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court