Judge: Sandy N. Leal, Case: 2022-01243985, Date: 2023-06-15 Tentative Ruling

Demurrer to Amended Complaint

The Demurrer to First Amended Complaint (FAC) by Defendants Michael P. Owens and Orlina Owens is OVERRULED as to the first, second, and third causes of action and SUSTAINED without leave to amend as to the fourth cause of action.

The FAC alleges Plaintiff made three loans to Defendants for a total amount of $400,000, and Defendants have refused to repay the loans. (FAC, ¶¶ 2-3.) Defendants Michael and Orlina Owens are married and jointly derived benefit from the use of said loaned monies. (FAC, ¶ 9.) Plaintiff and Defendant “entered into a verbal loan agreement evidenced by a promissory note.” (FAC, ¶ 12.) The FAC pleads causes of action for (1) breach of oral contract, (2) open book account, (3) money lent and received (indebitus assumpsit), and (4) unjust enrichment.

“The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.)

A common count claim broadly applies “wherever one person has received money which belongs to another, and which in ‘equity and good conscience,’ or in other words, in justice and right, should be returned.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809.) The elements of an open book account are (1) plaintiff and defendant had financial transactions (2) plaintiff kept an account of the debits and credits involved in the transactions; (3) defendant owes plaintiff money on the account; and (4) the amount of money that defendant owes plaintiff. (State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449; see CACI No. 372.) A cause of action for money had and received is alleged if the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937.)

Here, Plaintiff has adequately alleged causes of action for breach of oral contract and common counts against Defendants. To the extent the FAC is ambiguous as to the terms of the agreements and the parties who made the oral representations, these issues may be clarified in discovery. Therefore, the demurrer is overruled as to the first, second, and third causes of action.

As to the fourth cause of action, the demurrer is sustained without leave to amend because unjust enrichment is not an independent cause of action under California law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.)