Order Submitted Matter

Cal. Super. - 6th Dist.September 24, 2020

\OmflO‘th&le\Jp-u NNNNNNNNNHHHr-IHHHH-tp-n W‘QQM-PLHNHOQOONQUI&UJNFO Order Issued on Submitted Matter ‘f-K‘fi. I. _m E E; E 7/2021 the Court County d Sun AUG ,9, ClerkWWI SUPERIOR COURT 0F CALIFORNIRYM COUNTY 0F SANTA CLARA FATHOM ENGINEERING, Case N0. 20CV371 123 Plaintiff, ORDER RE: ORDER ON DEFENDANT ROPERS MAJESKI PC’S DEMURRER V5. TO PLAINTIFF’S FIRST AMENDED COMPLAINT ROPERS, MAJESKI, PC, et a1., Dept. 20 The Hon. Mary E. Arand Defendants. DECISION ON SUBMITTED MATTER The Demurrer to First Amended Complaint by Defendant Ropers, Majeski, PC came 0n for hearing before the Honorable Mary E. Arand 0n June 10, 2021, at 9:00 a.m. in Department 20. The Court was not persuaded by the arguments at the hearing, and so is adopting t0 Tentative Ruling posted before the hearing. The matter having been submitted, the Court finds and orders as follows: I. Statement of Facts. Plaintiff Fathom Engineering (“Fathom”) is in the business of providing consulting services including engineering analysis, engineering reports and failure analysis in all aspects 0f 1 ORDER RE: DEMURRER TO FAC OKDOOKJGU‘I-D-UJNH NNNNNNNNNHHH-HHH-o-H OOQQLJN$LHNHO©OONQLJI$UJNH mechanical engineering, some 0f which includes litigation. (First Amended Complaint (“FAC”), 111 .) Definder Grewal (“Grewal”) is the principal engineer of plaintiffFathom. (Id.) Defendant Ropers Majeski PC (“Ropers”) represented Maxim Integrated Products, Inc. (“Maxim”) in litigation entitled Maxim Integrated Products, Inc. v. Novinium, Inc. filed in Santa Clara County 0n 11 July 2016 (“Maxim Action”). (FAC, 118.) A trial date in the Maxim Action was set for 10 September 2018 and defendant Ropers was required to declare experts on 23 July 201 8. (Id.) Defendant Ropers’ partner, Lael Addara (“Andara”), contacted Grewal 0f plaintiff Fathom on or about 4 November 20 I 6 t0 see if Grewal could be assistance to Maxim in the pending Maxim Action. (FAC, 119.) Andara provided Grewal the complaint in the Maxim Action and attachments which included a preliminary failure analysis. (Id.) Grewal reviewed the information and replied that he would be able to assist because he had experience in high-voltage cable design and high-voltage cable failures, both in legal and non-lega] settings. (Id.) At defendant Ropers’ request, plaintiff Fathom sent a retention letter t0 defendant Ropers on 29 November 20 1 6, but the letter was not returned t0 plaintiff Fathom. (Id.) On 24 October 2017, Andara sent another email inquiring whether plaintiff Fathom could assist in the Maxim Action involving “electrical arcing and power shutdowns occurring at a semi-conductor manufacturing wafer process plant in Oregon.” (FAC, 1110.) On 7 November 20 17, defendant Ropers’ partner, Daniel P.‘McKinnon (“McKinnon”) contacted plaintiff Fathom for the purpose 0f retaining plaintiff Fathom for assistance in the Maxim Action. (Id.) On 8 November 2017, plaintiff Fathom again sent a retention letter to defendant Ropers relating to the Maxim Action. (Id.) In the following month, several conversations occurred between defendant Ropers and plaintiff Fathom discussing the litigation. (Id.) Defendant Ropers did not return the 8 November 2017 retention letter to plaintiff Fathom. (Id.) . On 5 June 2018, defendant Ropers’ partner, Matthew K. Suess lefi a voicemail and sent an email to plaintiff Fathom with the subject line, “Potential Retention,” and requesting a call “with Dr. Grewal t0 discuss retaining him in a pending lawsuit,” the Maxim Action. (FAC, W11 - 12.) 2 ORDER RE: DEMURRER TO FAC OQOO‘QOUI-hUJN 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 26 27 28 In a telephone conversation on 6 June 2018, defendant Ropers was advised that there was an outstanding and open invoice t0 plaintiffFathom in the amount 0f $25,680 from another matter. (FAC, fl13.) On 7 June 2018, McKinnon left a voicemail message for Grewal apologizing for the unpaid invoice and stating, “What I want t0 d0 is t0 make sure that you are taken care 0f and also t0 see what we can do on this Maxim matter. I’d like t0 get you onboard on that and know that there is some bad taste in your mouth with respect to that issue but let’s see what we can d0 and get you 0n board and do what we need to do t0 make you feel comfortable and again I apologize for this inconvenience.” (PAC, 1114.) On«7 June 2018, defendant Ropers paid the past due invoice 0f$25,680. (FAC, fillS.) On 14 June 2018, defendant Ropers emailed Grewal referencing the Maxim Action and attaching a folder containing approximately 2500 pages of deposition testimony and over 200 exhibits relating to the Maxim Action. (FAC, 1116.) Grewal informed McKinnon that, based 0n his preliminary review of the documents provided, the requested analysis would require substantial technical work and document review. (FAC, 111 7'.) Grewal told McKinnon that for plaintiff Fathom to do the job would necessitate a full-time, two~month effort in order for Grewa] t0 be prepared for deposition and trial. (Id.) Grewal estimated payment for the two months 0f work would be in excess 0f $ 1 00,000 and that would have t0 be prepaid by defendant Ropers. (Id.) McKinnon told Grewal that Ropers was in the process of getting Maxim’s authority t0 prepay, but Ropers would make payment of $10,000 to plaintiff Fathom as a good faith gesture and earnest payment while full authority for the entire payment was being processed. (Id.) On 29 June 2018, McKinnon emailed Grewal 0f plaintiffFathom stating, “I understand you are preparing an estimate for the initial work 0n this matter based 0n the documents we sent. I am having a check issued t0 you for $ 10,000 as part 0f our agreement for upfront payment. If your initial estimate is higher, we will issue another check for the remainder.” (FAC, 1118.) On or about 2 July 2018, defendant Ropers issued and plaintiff Fathom received a $ 10,000 check drawn on defendant Ropers’ account with Bridge Bank. (FAC, 1119.) On 9 July 2018, after requests by defendant Ropers, Grewal spoke t0 McKinnon and Michael J . Ioannou (“Ioannou”) 0f defendant Ropers regarding the Maxim Action. (FAC, 111121 - 3 ORDER RE: DEMURRER TO FAC \OOONJOU‘ILUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23.) Ioannou assured Grewal that he was in charge at defendant Ropers and had authority to prepay the entire project. (FAC, 1|23.) Grewal reiterated the prepayment would exceed $ 100,000 and Grewal would need to start clearing the next two months immediately. (Id.) Ioannou assured Grewal that he had the money and authority but needed a budget and scope 0f work so the check can be issued. (Id.) Ioannou assured payment upfront because time was short. (Id.) Ioannou said the $10,000 had been sent to get the budget and scope ofwork prepared so that advance payment could be made. (Id.) On 10 July 2019, Grewal spoke to Stacy Monahan 0f defendant Ropers who further assured Grewal that prepayment had been approved and that a cost letter was needed so the check could be written. (FAC, 1125.) On 10 July 2019, plaintiff Fathom emailed the retention agreement t0 Ioannou referencing the Maxim Action. (FAC, 1127.) The retention letter provided plaintiff Fathom’s $ 120,000 budget for the upfront payment for the expert work that Ioannou agreed t0 pay in advance. (Id.) After sending the retention letter, Grewal continued reviewing materials and reading depositions provided by defendant Ropers, planning the inspection in Oregon, and other work. (FAC, 1128.) When the money did not am've as promised, Grewal made calls t0 McKinnon which were not returned. (Id.) On 13 August 20 1 8, plaintiff Fathom was informed by its bank that defendant Ropers had issued a stop payment on the $10,000 check issued by defendant Ropers. (PAC, 1129.) Grewal called Monahan to determine why the check bounced. (FAC, 1130.) Monahan said she saw internal Ropérs emails stating Grewal did not want the money. (Id.) Plaintiff Fathom received n0 communication from Ioannou or McKinnon after 10 July 201 8. (FAC, 1131.) On 24 September 2020, plaintiff Fathom filed a complaint against defendant Ropers asserting causes of action for: (1) Breach of Oral Contract (2) Breach of Written Contract (3) Promissory Estoppel and Unjust Enrichment (4) Services Provided H Quantum Memit 4 ORDER RE: DEMURRER TO FAC hUJN 0000\de 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On 29 January 2021, defendant Ropers filed a demurrer to plaintiff Fathom’s complaint. On 13 April 2021, plaintiff Fathom filed the operative FAC continuing to assert the same four causes 0f action assened in the original complaint. On 21 April 2021, defendant Ropers withdrew its demurrer to plaintiff Fathom’s complaint. On 17 May 2021, defendant Ropers filed the motion now before the court, a demurrer to plaintiff Fathom’s FAC. II. Analysis A. Plaintiff Fathom’s request for judicial notice is DENIED. In opposition, plaintiff Fathom requests judicial notice of the complaint in the Maxim Action. The request for judicial notice re: Maxim Integrated Products, Inc. v. Novinium, Inc. pursuant t0 Evidence Code §§452(d)(1) and 452(g) in support ofplaintiff’s opposition t0 defendant Ropers Majeski, PC’s demurrer to plaintiff’s first amended complaint is DENIED as the court does not find the request t0 be necessary, helpful 0r relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 5 l, fn. 6-denying request where judicial notice is not necessary, helpful or relevant.) B. Defendant Ropers’ demurrer to the first cause 0f action [breach of oral contract] in plaintiff Fathom’s FAC is OVERRULED. “T0 prevail 0n a breach of contract cause 0f action, [a plaintiff] must establish (1) a contract; (2) its performance or excuse for nonperforrnance; (3) breach; and (4) damages.” (Stockton Mortgage, Inc. v. Tape (2014) 233 Cal.App.4th 437, 447 (Stockton).) “The elements of a breach of oral contract claim are the same as those for a breach of wn'tten contract: a contract; its performance or excuse for nonperformzmce; breach; and damages.” (Stockton, supra, 233 Cal.App.4th at p. 453.) Defendant Ropers argues initially that “the contract claim here does not allege mutual assent and does not sufficiently allege its terms.” Indeed, “Mutual assent or consent is necessary t0 the formation of a contract. (Civ. Code, §§ 1550, 1565.) Mutual assent is determined under an objective standard applied to the outward manifestations 0r expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or 5 ORDER RE: DEMURRER TO FAC KOOOxJONLh-bww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 understandings. (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 119, p. 144.) Mutual assent is a question of fact. (See BAJI N0. 10.60.) " ‘[W]hether a certain or undisputed state of facts establishes a contract is one of law for the court . . . . On the other hand, where the existence and not the validity or construction 0f a contract 0r the terms thereof is the point in issue, and the evidence is conflicting 0r admits of more than one inference, it is for the jury 0r other trier 0f the facts to determine whether the contract did in fact exist, . . .’ [Citation.]" (Robinson & Wilson, Inc. v. Stone (1973) 5 Cal. App. 3d 396, 407 [1 10 Cal. Rptr. 675] [provisi0n, as interpreted, was not enforceable because it was indefinite and uncertain as to scope of the work contemplated in undesigned portions 0f the building and thus did not provide a proper basis for measuring damages for breach].) (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141; emphasis added.) In relevant part, the FAC alleges, “An oral contract was made between Fathom and Ropers by which Fathorn agreed that Dr. Grewal would set aside his professional time for two months to do the work and analysis necessary for expert opinion testimony for Ropers in the Maxim matter. In exchange, Ropers agreed to pay Fathom for two months of Dr. Grewal’s professional time at the cost 0f $ 120,000 including an unsolicited payment 0f $ 1 0,000 as earnest money made by Ropers as an assurance t0 Fathom 0f its good faith to make the entire payment upfront on receipt 0f the requested estimate.” (FAC, 1134.) This allegation is supported by other allegations 0f Ropers’ outward manifestations 0f assent. (E.g., see FAC, 111 8-MOKinnon emailed Fathom stating, “I am having a check issued to you for $ 10,000 as part of our agreement for upfront payment.” (Emphasis added.» Without acknowledging such allegations, Ropers contends there are other allegations which suggest a lack of assent. (E.g., see FAC, fl 1 7-McKinnon told Grewal “that Ropers was in the process of getting the client’s authority to prepay for the work”) As pointed out above, conflicting expressions or manifestations 0f assent may exist which will ultimately present a question 0f fact. However, for purposes of demurrer, the court finds the FAC t0 sufficiently allege mutual assent. 6 ORDER RE: DEMURRER TO FAC \DOO‘QQ‘JIgLoJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ropers argues additionally that the purported contract is too uncertain or indefinite t0 be enforceable. “Under California law, a contract will be enforced if it is sufficiently definite (and this is a question 0f law) for the court to ascertain the parties‘ obligations and to determine whether those obligations have been performed or breached.” (Ersa Grae Corp. v. Fluor Corp. (1991) I Cal.App.4th 613, 623 [2 Cal. Rptr. 2d 288].) “T0 be enforceable, a promise must be definite enough that a coun can determine the scope 0f the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment 0f damages.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770 [23 Cal. Rptr.2d 810]; see also Robinson & Wilson, Inc. v. Stone, supra, 35 Cal. App. 3d at p. 407.) “Where a contract is so uncertain and indefinite that the intention 0f the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Cal. Lettuce Growers v. Union Sugar C0. (1955) 45 Cal.2d 474, 481 [289 P.2d 785]; see also Civ. Code, § [598; Ladas v. California StateAuto. Assn, supra, 19 Cal.App.4th at p. 770.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Rest.2d Contracts, § 33, subd. (2); accord, Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4'h 793, 81 1 .) But “[i]f... a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed t0, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” ( Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 81 1.) (Bustamante v. Intuit, Inc. (2006) 141 Ca1.App.4th 199, 209.) That being said, “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. [fifl ‘ “In considering expressions of agreement, the court must not hold the parties to some impossible, 0r ideal, or unusual standard. It must take language as it is and people as they are. A11 agreements have some degree of indefiniteness and some degree 0f uncertainty." ’ [Citation] Moreover, ‘ “[t]he law leans against the destruction of contracts because of uncertainty and favors an interpretation which will carry into effect the reasonable intention of the parties if it can be ascertained.” ’ [Citation.]” (Moncada v. West Coast Quartz Corp. (2013) 221 Ca1.App.4th 768, 777.) 7 ORDER RE: DEMURRER TO FAC OOWNJONLh-P-Lfiwr- ,_.,_. ._. N N N N N N [\J N N v- r- r- r-I p-I p-e .-- .- 00 \J O\ LII -P DJ [Q ’-‘ O O W \J Q LI‘I $ DJ IQ Defendant Ropers contends the FAC fails to include the material terms 0f the purported oral contract. However, the material terms are stated in paragraph 34 0f the FAC-“Fathom agreed that Dr. Grewal would set aside his professional time for two months t0 do the work and analysis necessary for expert opinion testimony for Ropers in the Maxim matter. In exchange, Ropers agreed t0 pay Fathom for two months 0f Dr. Grewal’s professional time at the cost 0f $120,000.” Defendant Ropers breached by failing to pay the $120,000 as agreed. (FAC, 1136.) The court finds such terms to be sufficiently definite as there is a basis for determining what obligations the parties agreed to and a basis for determination 0f whether those agreed obligations have been breached. Defendant Ropers contends the emails attached t0 the FAC undermine the existence 0f an agreement and evidence only preliminary negotiations. However, the court does not read the attachments in isolation but rather in conjunction with the allegations 0f the FAC. “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Internat, Inc. (2001) 86 Ca1.App.4th 1443, 1447.) Here, the facts in the emails attached as exhibits t0 the FAC d0 not necessarily contradict the allegations. Defendant Ropers argues funher that the terms 0f the oral agreement are incongruous and inconsistent with the subsequent 10 July 2019 retention letter/agreement that plaintiff Fathom sent to defendant Ropers which states, "Please indicate your understanding and acceptance 0f the tenns 0f retention by signing and returning this letter t0 me at the address above. Note that there is no retention without the pre-payment." (FAC, 1127 and Exh. E-OOZ; emphasis added.) The court does not find this language to be inconsistent with the oral agreement. On the contrary, it is consistent with plaintiff Fathom’s earlier allegations concerning the parties’ negotiations and plaintiff Fathom’s insistence 0n payment “up front” clue to Ropers’ failure to pay Fathom’s invoice on a separate matter and defendant Ropers’ representations that Ropers had the money and authority t0 prepay and would, in fact, prepay upon receipt of a retention letter. (See FAC, W13 - 15, 17 - 19, 23 - 26.) In view 0f such allegations, the highlighted language is entirely consistent and could be viewed as evidence that Ropers’ prepayment was a condition precedent 8 ORDER RE: DEMURRER TO FAC \DOONJONU‘I-bU-FN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to plaintiff Fathom’s performance of the oral agreement rather than the parties’ agreement not t0 be bound until reduced to writing and signed by the parties. Accordingly, defendant Ropers’ demurrer t0 the first cause of action in plaintiff Fathom’s FAC 0n the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430. 10, subd. (6)] for breach oforal contract and 0n the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (0] is OVERRULED. C. Defendant Ropers’ demurrer to the second cause of action [breach 0f written contract] in plaintiff Fathom’s FAC is SUSTAINED. In relevant pan, plaintiff Fathom’s second cause of action alleges, “Exhibits A, B, C, and D comprise a written contract made between Fathom and Ropers by which Fathom agreed that Dr. Grewal would set aside his professional time for two months to do the work and analysis necessary for expert opinion testimony for Ropers in the Maxim matter. In exchange, Ropers agreed to pay Fathom for two months ofDr. Grewal’s professional time at the cost 0f$120,000.” (FAC, 1139.) Exhibits A - D consist of email conespondence between Ropers and Grewal dated 29 June 2018 through 10 July 2018. Defendant Ropers contends, despite plaintiff Fathom’s assertion that they “comprise a written contract,” such emails do not constitute a written contract because, among other things, they d0 not set forth the material terms of an agreement signed by defendant Ropers. The court agrees with defendant Ropers on this point. In Gold v. Gibbons (1960) 178 Cal.App.2d 5 17, 5 19, the court held, “Breach of contract cannot be made the basis 0f an action for damages against defendants who did not execute it and who did nothing to assume ité obligations.” (See also Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 452-“Under California law, only a signatory t0 a contract may be liable for any breach.”)] The court finds plaintiff Fathom’s reliance on CACI, N0. 306 in opposition to be an implicit concession that n0 formalized written contract was entered into. Accordingly, defendant Ropers’ demurrer t0 the second cause of action in plaintiff Fathom‘s FAC on the ground that the pleading does not state facts sufficient t0 constitute a cause 9 ORDER RE: DEMURRER TO FAC OKOOOQONUI-hwwr- NNNNNNNNNHr-‘r-r-‘r-«p-HHHH MQQLA¥UJNHOWOOMONUIJAUJMH 0f action [Code Civ. Proc., §430.10, subd. (6)] for breach 0f mitten contract is SUSTAINED with 10 days’ leave to amend after service 0f notice of entry of this order notice of this order. D. Defendant Ropers’ demurrer t0 the third cause of action [promissory estoppel and unjust enrichment] in plaintiff Fathom’s FAC is SUSTAINED. “The doctrine of promissory estoppel is set forth in section 90 of the Restatement 0f Contracts. It provides: ‘A promise which the promisor should reasonably expect to induce action o-r forbearance 0f a definite and substantial character on the part of the promise and which does induce such action or forbearance is binding if injustice can be avoided only be enforcement 0f the promise.”’ (Signal HillAviation C0. v. Stroppe (1979) 96 Ca1.App.3d 627, 637 (Signal Hill).) “California recognizes the doctrine. ‘Under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act 0r forbearance, in reliance 0n his promise, ifinjustice can be avoided only by its enforcement.” (Signal Hill, supra, 96 Ca1.App.3d at p. 637.) In essence, “the estoppel is a substitute for consideration.” (1 Witkin, Summary 0f California Law (9th ed. 1987) Contracts, §248, p. 250.) “Cases have characterized promissory estoppel claims as being basically the same as contract actions, but only missing the consideration element.” (US Ecology, Inc. v. State ofCalz'fornia (2005) 129 Cal.App.4th 887, 903 (US Ecology).) “[P]romissory estoppel claims are aimed solely at allowing recovery in equity where a contractual claim fails for a lack of consideration, and in all other respects the claim is akin to one for breach 0f contract.” (Id. at p. 904.) “The required elements for promissory estoppel in California are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the pany asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan ASE”. (1976) 60 Cal.App.3d 885, 890; see also US Ecology, supra, 129 Cal.App.4th 887, 901.) Although defendant Ropers contends the third cause of action is defective for various reasons, the court finds plaintiffs claim for promissory estoppel to be defective for a more fimdamental reason. “The California Supreme Court explained in [Raedeke v. Gibralter Sav. & Loan Assn. (1974) 10 Cal.3d 665] that the purpose 0f this doctrine is to make a promise binding, 10 ORDER RE: DEMURRER TO FAC Lo.) O®OO\JO\U‘IA 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 under certain circumstances without consideration in the usual sense of something bargained for and given in exchange. If the promisee’s performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.” (Signal Hill, supra, 96 Cal.App.3d at p. 640; see also Youngman v. Nevada Irrigation District (1969) 70 Ca1.2d 240, 249.) Indeed, the FAC alleges that plaintiff’s performance was requested at the time defendant Ropers made its promise to pay and plaintiff Fathom’s perfonnance was bargained for. Consequently, promissory estoppel is not applicable here. Plaintiff Fathom’s argument in opposition concerning the concept of equitable ’estoppel is unavailing. To the extent plaintiff Fathom’s third cause of action also asserts unjust enrichment, “there is n0 cause ofaction in California for unjust enrichment. The phrase ‘Unjust Enrichment’ does not describe a theory ofrecovery, but an effect: the result ofa failure t0 make restitution under circumstances where it is equitable to d0 so. Unjust enrichment is a general principle, underlying various legal doctrines and remedies, rather than a remedy itself. It is synonymous with restitution.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793; citation and punctuation omitted.) In McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 - 388 (McBride), the court wrote, “Unjust enrichment is not a cause of action, however, 0r even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution. Unjust enrichment has also been characterized as describing the result of a failure to make restitution. [fl] In reviewing a judgment of dismissal following the sustaining 0f a general demurrer, we ignore erroneous or confusing labels if the complaint pleads facts which would entitle the plaintiff to relief. Thus, we must look t0 the actual gravamen 0f [plaintiff‘s] complaint to determine what cause 0f action, if any, he stated, 0r could have stated if given leave t0 amend. In accordance with this principle, we construe [plaintiff’s] purported cause 0f action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.” Since plaintiff Fathom has not sufficiently pleaded a right to restitution, plaintiff has not sufficiently alleged a claim for unjust enrichment. Accordingly, defendant Ropers’ demurrer t0 the third cause of action in plaintiff Fathom’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause 11 ORDER RE: DEMURRER TO FAC OONJOLIILL») ONO of action [Code Civ. Proc., §430.10, subd. (e)] for promissory estoppel and unjust enrichment is SUSTAINED with 10 days’ leave to amend afier service 0f notice 0f entry 0f this order. E. Defendant Ropers’ demurrer t0 the fourth cause 0f action [quantum meruit] in plaintiff Fathom’s FAC is OVERRULED. “The common count is a general pleading which seeks recovery of money without Specifying the nature 0f the claim.” (Title Ins. Co. v State Board oquualization (1992) 4 Ca1.4th 715, 73 l .) “A common count is proper whenever the plaintiff claims a sum 0f money due, either as an indebtedness in a sum certain, or for the reasonable value 0f services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction t0 be an express contract, a contract implied in fact, 0r a quasi-contract.” (Utility Audit C0 v. City 0f L03 Angeles (2003) 1 12 Cal.App.4th 950, 958; see also CACI, No. 371.) The only essential allegations 0f a common count are “(D the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchange v. Zerz'n (1997) 53 Cal.App.4th 445, 460.) “A common count is not a specific cause 0f action, however; rather, it is a simplified form 0f pleading normally used t0 aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (McBride, supra, 123 Ca1.App.4th at p. 394.) Black’s Law Dictionary defines an assumpsit on quantum meruit as follows: “When a person employs another to do work for him, without any agreement as to his compensation, the law implies a promise fiom the employer to the workman that he will pay him for his services as much as he may deserve or merit. In such case, the plaintiffmay suggest in his declaration that the defendant promised to pay him as much as he reasonably deserved, and then aver that his trouble was worth such a sum of money, which the defendant has omitted t0 pay.” “Where a common count for services rendered alleges they were performed at the request of defendants, that they promised t0 pay for them and failed to d0 so, such count is good.” (Huggerty v. Warner (1953) 115 Cal.App.2d 468, 475.) Defendant Ropers contends plaintiff Fathom does not adequately allege what services it rendered. Defendant Ropers overlooks or 12 ORDER RE: DEMURRER TO FAC \ooouoxm-hwmp- NNNNNNNNNt-HHt-H--t-t---.-a OOKJONlA-DUJNr-‘OKOOONONLh-bi-DNHO ignores paragraph 52 where it is alleged, “Ropers requested by words and conduct that Fathom provide Ropers With Fathom’s expert analysis on the Maxim matter over the time period alleged hereinabove, and when requested, Fathom did research and performed analysis and provided all requested information and expert analysis on the Maxim matter and for the benefit and use by Ropers in representing Maxim.” The fourth cause of action also incorporates earlier allegations including the allegation that, “After sending the retention letter, Dr. Grewal continued reviewing materials and reading depositions that had been provided by Ropers, planning the inspection in Oregon as well as other work.” (FAC, W28 and 5 1.) No further particularity is required nor is there any requirement that plaintiff Fathom allege what benefit was conferred upon defendant Ropers or what benefit Ropers derived from plaintiff Fathom’s services. . Accordingly, defendant Ropers’ demuITer t0 the fourth cause of action in plaintiff Fathom‘s FAC 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., §430.10, subd. (6)] for quantum meruit and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED. III. Order. Defendant Ropers’ demurrer to the first cause 0f action in plaintiff Fathom’s FAC on the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., §430. 10, subd. (6)] for breach of oral contract and 0n the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED. Defendant Ropers’ demurrer to the second cause of action in plaintiff Fathom’s FAC 0n the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430. 10, subd. (6)] for breach of wn'tten contract is SUSTAINED with 10 days’ leave t0 amend after service 0f notice 0f entry 0f this order. Defendant Ropers’ demurrer to the third cause 0f action in plaintiff Fathom’s FAC 0n the ground that the pleading does not state facts sufficient to constitute a cause 0f action [Code Civ. Proc., §430.10, subd. (6)] for promissory estoppel and unjust enrichment is SUSTAINED with 10 days’ leave t0 amend after service of notice of entry 0f this order. 13 ORDER RE: DEMURRER TO FAC N DOOflONUthrJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Ropers’ demurrer to the fourth cause of action in plaintiff Fathom’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for quantum meruit and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (t)] is OVERRULED. W} i.gt/EM Mary E. Arand Judge of the Superior Court Dated: August 27, 2021 I4 ORDER RE: DEMURRER TO FAC SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRSTSTREET SANJOSB,CALIFORN1A 95113 CIVIL DIVISION RE: FATHOM ENGINEERING vs ROPERS MAJESKI et al Case Number: 20CV371123 PROOF OF SERVICE ORDER 0N DEFENDANT ROPERS MAJESKI PC'S DEMURRER T0 PLAINTIFF'S FIRST AMENDED COMPLAINT was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a pany represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the Voice/TDD Ca1ifornia Relay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: | declare mat | served this notice by enclosing a true copy In a sealed envelope. addressed to each person whose name Is shown below, and by depositing the envelope with postage fully prepaid. in the Uniled Staies Mail at San Jose. CA on August 27, 2021. CLERK OF THE COURT. by Hiemrang Tranthien, Deputy. cc: Matthew Charles Mickelson LAW OFFICES 0F MATTHEW MICKELSON 16055 VENTURA BLVD SUITE 1230 Encino CA 91436 Enrique Marinez Ropers Majeski PC 545 Middlefield Road Suite 175 Menlo Park CA 94025 CW-9027 REV 12/08/16 PROOF OF SERVICE