Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC339115, Maureen Duffy-Lewis, Judge.
Taheri Law Group and Payman Taheri for Plaintiff and Appellant.
O’Neil & Matusek and Henry John Matusek II for Defendants and Respondents.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff Yevgeniya Lisitsa appeals from a judgment dismissing with prejudice her lawsuit against defendants Yuri Gleyzer, Leah Gleyzer, and Isay Gleyzer for breach of an oral contract, fraud, unjust enrichment, and common counts. The judgment followed the sustaining of defendants’ demurrers to plaintiff’s third amended complaint. We reverse.
Yuri Gleyzer is the son of Leah and Isay Gleyzer. For the sake of clarity, when necessary, the defendants will be identified by their first names.
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, we assume the truth of the complaint’s properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Plaintiff met defendants in January 2004. Defendants wanted to open a funeral establishment and requested that plaintiff create a corporation named Xazap, Inc. (Xazap) to do business as Meadow Memorial Chapel. The corporation was created in February 2004.
On May 10, 2004, Yuri borrowed $12,000 from plaintiff in order to repay someone to whom he owed money. On May 17, Yuri borrowed another $1,700. Before loaning Yuri the money, plaintiff spoke to Leah and Isay, who said they would pay her back if Yuri failed to do so.
Yuri was arrested on June 3, 2004 for grand theft and forgery. When plaintiff found out, she contacted Leah and Isay and explained that they needed to bail Yuri out of jail. Leah and Isay asked plaintiff to bail Yuri out and said they would repay the amount of bail. Plaintiff paid $5,000 to bail Yuri out of jail.
Defendants then asked plaintiff to pay for an attorney for Yuri, because they did not have the money to pay for one, and said they would repay her. Plaintiff paid $2,500 for an attorney. Shortly thereafter, defendants borrowed $7,500 from plaintiff in order to pay restitution to Yuri’s victims.
In July 2004, defendants came to plaintiff and told her they were unable to get the necessary licensing for the funeral establishment and needed her help. They said if she would obtain the necessary licensing, they would invest the money required and operate the business. In return for her contribution, defendants made plaintiff a 50 percent shareholder in Xazap; Isay became a 40 percent shareholder, and Yuri a 10 percent shareholder.
Plaintiff was leasing a Lexus through October 2005. In mid-2004, plaintiff allowed defendants informally to assume the lease on her car so that Yuri, who did not have a car of his own, would have a car to drive. Two months later, plaintiff learned that defendants were not making the lease payments on the car and had not insured it. She took the car back and had to continue to make the lease payments on it, in addition to paying late fees for the payments that defendants did not make.
In August 2004, plaintiff signed a one-year lease for premises in West Hollywood for the funeral establishment. The monthly lease payment was $1,400. It was agreed that defendants would make the lease payments.
Unbeknownst to plaintiff, defendants had already contracted with a number of people to provide them with funeral services and received money from them. Yuri borrowed another $7,000 from plaintiff in August 2004 to provide a funeral for one of these people from whom he had received money, which he had already spent for other purposes. Leah and Isay promised to repay this money if Yuri failed to do so. In September, Yuri borrowed another $6,500 from plaintiff to repay people who had advanced money to them to conduct a funeral two years earlier. Again, Leah and Isay promised to repay this money if Yuri failed to do so.
In September and October 2004, $688 from the business checking account was used to pay health insurance premiums for Isay and Yuri. In October, Yuri took a $600 check made out to cash from the business checking account. The funds in the business checking account had all been contributed by plaintiff; defendants had put nothing into the account.
In October 2004, Yuri was admitted into a residential treatment program. At Leah’s and Isay’s request, plaintiff paid the $3,500 admission fee for the program. Leah and Isay agreed to repay her within 90 days if Yuri refused to do so.
Plaintiff made the foregoing loans to defendants in reliance on representations they made to her. Defendants represented that Yuri had experience as a mortuary operations director at Rose Hills Mortuary. Defendants said that they knew the mortuary industry very well, knew the suppliers in the industry, and had cemetery contacts. Additionally, they had access to many clients in the Russian Jewish community, in which Yuri was well known.
Defendants told plaintiff that they had all the money needed to start the funeral business. Yuri said that he had money in a joint account in New York, and he would get the money out of the account to put into the business. Isay and Leah promised to pay for the business and repay all of plaintiff’s loans. Leah told plaintiff that she would refinance her house in Van Nuys in order to repay plaintiff.
Leah repaid plaintiff $7,000 but then stated that defendants would not pay plaintiff anything else. Realizing that defendants were not going to perform their agreements, plaintiff decided to withdraw from the business. In February 2005, plaintiff resigned her position with Xazap and returned her shareholder certificate.
When defendants promised to repay to plaintiff the money they borrowed from her, they had no intention of doing so. They eventually told her they had no intention of paying her back. They had no way of paying her back: Yuri was unemployed, Leah was a school teacher and Isay was a taxi driver. Defendants made the promises solely to induce plaintiff to loan them the money.
Defendants also intended to defraud those seeking their services through the funeral establishment. They intended to place the blame for the fraud on plaintiff.
PROCEDURAL BACKGROUND
Plaintiff filed a complaint against defendants on August 30, 2005, alleging three causes of action: breach of oral contract, fraud, and unjust enrichment. After a demurrer was filed, plaintiff filed a first amended complaint, adding Xazap as a defendant and asserting 16 causes of action, including five each alleging fraud by false promise, promissory estoppel and unjust enrichment. The first amended complaint also included a cause of action for restitution against Xazap. Defendants again filed demurrers, and the trial court sustained the demurrers with leave to amend.
Plaintiff filed her second amended complaint omitting Xazap as a defendant and setting forth four causes of action: (1) breach of an oral contract; (2) promissory fraud; (3) unjust enrichment; and (4) common counts. Defendants again demurred and the trial court sustained the demurrers with leave to amend.
Plaintiff filed her third amended complaint, the operative pleading on this appeal. It alleged the same cause of actions as the second amended complaint. Defendants demurred and filed a motion to strike the third amended complaint. The bases of the demurrers were uncertainty and failure to state a cause of action. Defendants argued that plaintiff failed to plead the elements of an oral contract, the action was barred by the statute of frauds, plaintiff pleaded facts antagonistic to intent to defraud and facts antagonistic to reasonable reliance. Defendants also argued that the contract was unenforceable as against public policy pursuant to Rules of Professional Conduct, rule 3-300 and an attempt to enforce a contingency that had not occurred. The motion to strike was based on plaintiff’s failure to file the third amended complaint within the 15 days granted by the trial court.
The trial court denied the motion to strike, accepting the representations by plaintiff’s counsel that the third amended complaint was filed three days late due to a calendaring error. It sustained defendants’ demurrers as to the breach of contract cause of action based on uncertainty. It sustained the demurrers as to the fraud causes of action based on plaintiff’s failure to allege specific facts showing that defendants did not intend to perform their promises, noting that the mere failure to perform is insufficient to show lack of intent. The trial court sustained the demurrers without leave to amend and dismissed the action.
DISCUSSION
Standard of Review
The court should not sustain a demurrer without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.)
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, we assume the truth of the complaint’s properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) We also consider matters which have been or may be judicially noticed. (Ibid.; Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, fn. 3.) These matters include the facts alleged in plaintiff’s earlier pleadings. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-743; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.) “The complaint should be read as containing the judicially noticeable facts, ‘even when the pleading contains an express allegation to the contrary.’ [Citation.] A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.]” (Cantu, supra, at p. 877.) While an amended pleading supersedes an existing one, it “does not obliterate the original complaint nor wholly nullify the fact of its filing or its contents.” (Lerner v. Glickfeld (1960) 187 Cal.App.2d 514, 525.) Thus, to the extent the factual allegations of plaintiff’s third amended complaint are inconsistent with those pleaded in earlier complaints, we consider the facts pled in the earlier complaints in determining whether plaintiff has stated a cause of action. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 12; Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.)
We review the trial court’s ruling de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.) In our review, we give the complaint a reasonable interpretation, reading it as a whole and its provisions in context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Breach of Oral Contract
The trial court sustained the demurrer to the first cause of action for breach of oral contact on the ground of uncertainty. The trial court did not specify what was uncertain about the first cause of action.
A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 476, p. 570.) If an oral contract is pled, the complaint must show the nature of the contract with certainty (id., § 483, pp. 574-575), and it must show consideration (id., § 486, pp. 577-578). However, “[a]n oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.] A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
Plaintiff alleged that she loaned money to Yuri, Leah and Isay and advanced money to defendants to start a funeral business. She also gave her car to Yuri after defendants promised to make the lease payments. Prior to loaning any money to Yuri, she spoke to Leah and Isay, who promised her that they would repay any loans made to Yuri if he failed to repay them. Leah repaid $7,000 of the money that plaintiff loaned or advanced to defendants but then said that defendants would not repay anything else.
The facts alleged were sufficient to allege a contract, plaintiff’s performance, defendants’ breach and damage to plaintiff. That plaintiff could not allege with specificity the exact terms of the contract does not preclude statement of a cause of action. (Khoury v. Maly’s of California, Inc., supra, 14 Cal.App.4th at p. 616.) The cause of action is not uncertain.
Defendants argue that the trial court nonetheless properly sustained their demurrers, in that plaintiff’s cause of action is barred as a matter of law on a number of grounds. We discuss each in turn.
We treat these arguments as discrete contentions on appeal. Where the result on appeal would otherwise be reversal, a party who did not appeal from an order or judgment may raise new issues which, if resolved in the party’s favor, would prevent the prejudice which would result from reversal. (Code Civ. Proc., § 906; Adoption of Lenn E. (1986) 182 Cal.App.3d 210, 218.)
A. Public Policy Argument
Defendants contend that the contract is unenforceable as made in violation of public policy, because plaintiff was defendants’ attorney.
Defendants requested that the trial court take judicial notice that plaintiff was a licensed California attorney. The court may consider as grounds for a demurrer any matter that is judicially noticeable. (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152.)
California Rules of Professional Conduct, rule 3-300 (rule 3-300) provides as follows: “A member shall not enter into a business transaction with a client; or knowingly acquire an ownership . . . interest adverse to a client, unless each of the following requirements has been satisfied:
“(A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and
“(B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice; and
“(C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.”
However, plaintiff never alleged that she was acting as an attorney for the defendants when she lent money to defendants. Even if plaintiff’s actions were prohibited by the Rules of Professional Conduct, that fact did not appear on the face of the complaint. The demurrer tests the pleadings alone and not the evidence or other extrinsic matters. A demurrer lies only where the defects appear on the face of the pleading. (Code Civ. Proc., § 430.30; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.)
Defendants’ reliance on BGJ Associates v. Wilson (2003) 113 Cal.App.4th 1217 is misplaced. BGJ holds that when entering into a business transaction with a client, an attorney must satisfy all three requirements of rule 3-300. (Id. at p. 1226.) Inasmuch as there is no allegation that plaintiff was acting as defendants’ attorney when she lent them money, she did not need to allege that she complied with rule 3-300.
We also note that both parties in their briefs mention a romantic relationship between plaintiff and Yuri. Plaintiff’s counsel, in his opposition to the demurrer, argued that rule 3-300 did not apply because the relationship between plaintiff and Yuri was romantic, not professional. There is no allegation that plaintiff and Yuri were romantically involved. At the time of trial, the parties may present evidence of a romantic or professional relationship as relevant to the existence or validity of the contract. But since the demurrer tests the pleadings alone and not the evidence or other extrinsic matters, we do not consider these statements by counsel. (Code Civ. Proc., § 430.30; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.)
B. Statute of Frauds
Defendants claim that the series of oral promises by Leah and Isay to guarantee loans made to Yuri violated the statute of frauds. They rely on Civil Code section 1624, which provides in pertinent part that a contract must be in writing if it is: “(1) An agreement that by its terms is not to be performed within a year from the making thereof. [¶] (2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.” (Civ. Code, § 1624, subd. (a).) Civil Code section 2794 does not require a writing if the obligation is an original obligation, in other words, the person incurring the obligation is considered to be the principal debtor. It lists six circumstances under which the obligation of the promisor will be deemed an original obligation.
In support of their claim, defendants simply conclude, “Each alleged contract is unenforceable as an oral promise of surety, or an oral contract that cannot be performed within a year (assumption of the Lexus lease). No contract action was plead against Leah or Isay.” They do not examine the allegations of the complaint or cite any authority to demonstrate that Civil Code section 1624 bars plaintiff’s breach of contract cause of action against them.
We note that a party raising an issue on appeal has the burden of providing citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) The party must also provide citation to relevant authority and argument. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) It is not the responsibility of this court to comb the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301.) The failure to meet this burden waives the issues on appeal. (Mansell, supra, at pp. 545-546; Dougherty, supra, at p. 282.)
Contrary to defendants’ conclusion, all three defendants are named in plaintiff’s first cause of action for breach of an oral contract. As plaintiff points out, the complaint alleges that some of the loans were made to defendants, not merely made to Yuri and guaranteed by Leah and Isay. Additionally, plaintiff alleged that Leah and Isay asked plaintiff for the money to bail Yuri out of jail and said they would repay her. These loans made to Leah and Isay would not fall within Civil Code section 1624.
C. Unenforceable Contingency
Defendants contend that the allegation in paragraph 42 of the complaint that the monies “were to be repaid to Plaintiff once the Corporation was fully operational” make the promise unenforceable as a contingency. Since the contingency never occurred, defendants assert, they were not required to perform. We disagree.
Specifically, plaintiff alleged in paragraphs 41 and 42 that she advanced funds “to the Defendants in furtherance of the new business enterprise, the Corporation. Furthermore, each of the loans, and or expenses incurred by the Plaintiff . . . was made to the Defendants, and each of them, with their full knowledge and understanding that such funds were personal loans which the Defendants, and each of them, that were personally and severally guaranteed by each Defendant. Moreover, the monies that Plaintiff advanced to the Defendants were made with the sole purpose of helping the Defendants organize and put the Corporation on tracks. How was the Corporation supposed to run if the person responsible for bringing in clients was incarcerated or drunk? [¶] . . . Thus, the Defendants, and each of them had knowledge and full understanding that the funds . . . were to be repaid to the Plaintiff once the Corporation was fully operational.”
Despite the allegation in paragraph 42 that “Defendants, and each of them had knowledge and full understanding that the funds . . . were to be repaid to the Plaintiff once the Corporation was fully operational,” plaintiff alleged specific agreements as to repayment that were not contingent upon the funeral business becoming operational.
For example, in paragraph 30, plaintiff alleged that she loaned $3,500 to defendants for Yuri’s admission to a residential treatment center, and “Defendants all agree to pay the money back within ninety (90) days.” Paragraph 31(F) of the complaint alleges as follows: “Defendants Isay and Leah promised to repay for the business and all the loans made by the Plaintiff. Defendant Leah explained that Defendant Leah would refinance Defendant Leah’s house located at 13412 Burbank Blvd., Unit 9, Van Nuys, California 91401 in order to pay back Plaintiff. Both Defendants Isay Gleyzer and Leah Gleyzer made these representations in front of Tatyana Lisitsa and Edward Akselrod.” In other words, repayment was based on Leah’s refinancing her house; it was not contingent on the business becoming operational.
Defendants also suggest that inconsistencies between plaintiff’s third amended complaint and plaintiff’s earlier pleadings made it proper for the trial court to sustain their demurrer without leave to amend. In reviewing the inconsistent factual allegations in the earlier pleadings, we have found none fatal to plaintiff’s causes of action. (See Owens v. Kings Supermarket, supra, 198 Cal.App.3d at p. 384, fn. 3.)
Fraud
“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “‘the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’” [Citation.] [¶] This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.”’ [Citation.]” (Id. at p. 645.)
A cause of action for promissory fraud must include specific factual circumstances from which a contemporaneous intent not to perform can be inferred. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 [mere contract breach is not sufficient to prove fraud]; Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707.)
The trial court, in sustaining the demurrer to the promissory fraud cause of action, without leave to amend, stated: “As to the promissory fraud, promissory fraud is a sub species of fraud. A promise made without intention of performing it. I cite [Lazar v. Superior Court, supra,] 12 Cal.4th 631 at 638. All fraud causes of action must be pled with specificity and specific facts. [¶] Plaintiff still fails to allege specific facts that would show that any defendant did not have the intention to perform. Simple act or failure to perform is not sufficient to show a lack of intent.”
The trial court is incorrect in stating that plaintiff did not allege facts that would show that any defendant did not have the intention to perform. Paragraph 50 of the third amended complaint stated in part: “Defendants, and each of them, told plaintiff that they never had any intention of paying Plaintiff back . . . .”
In Lazar v. Superior Court, supra, 12 Cal.4th 631, plaintiff alleged in his complaint that the employer induced him to relocate from New York to Los Angeles with his family, to relinquish a secure job, based on verbal representations about his employment and the company, all of which were false and which the employer’s agents knew to be false when making them. Only after plaintiff started working for the employer did the employer fail to pay the amounts promised and then terminate plaintiff. (Id. at pp. 635-637.) The Supreme Court held that plaintiff adequately pled a cause of action for promissory fraud, since his reliance on the employer’s misrepresentations was truly detrimental, and the employer, which had no coercive power over the employee before the employment relationship was formed, used misrepresentations to induce the employee to change employment, a result the employer could not have achieved truthfully. (Id. at p. 639.)
In Lazar, the true facts came to light at the time plaintiff was being terminated, after the contract had been partially performed. In the instant case, if plaintiff had been aware that the loans would not be repaid, she would not have made them. The true facts came to light after plaintiff loaned defendants the money and they repaid a small portion of the loans. Plaintiff stated a cause of action for promissory fraud.
We also disagree with defendants’ argument that by pleading repayment of $7,000, the plaintiff pled conduct inconsistent with an intent to defraud as a matter of law. This is a question for the jury to determine: if paying back a portion of the loans would evidence an intent to repay the loans, defeating the promissory fraud cause of action. Repayment of the $7,000 does not, in and of itself, preclude a finding of promissory fraud. (See, e.g., Lazar v. Superior Court, supra, 12 Cal.4th at pp. 635-637.)
Defendants also argue that plaintiff failed to plead reasonable reliance. In their view, it is inconceivable that a licensed attorney would ever reasonably believe that she could place reliance in the alleged promises of the defendants. Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff’s reliance is reasonable is a question of fact under California law. (City Solutions, Inc. v. Clear Channel (9th Cir. 2004) 365 F.3d 835, 840.) This is not that case.
Unjust Enrichment
The trial court’s basis for sustaining the demurrer as to the unjust enrichment cause of action was as follows: “As to unjust enrichment, unjust enrichment is predicated upon fraud. As fraud claims are not sufficient as noted previously, there’s no unjust enrichment.”
While unjust enrichment is not a cause of action, it is an equitable theory of liability. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) The right to restitution or quasi-contractual recovery is based upon unjust enrichment. A person may be required to make restitution if he or she is unjustly enriched at the expense of another. A person is enriched if he or she receives a benefit at another’s expense. (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51.) When a borrower does not pay back monies borrowed, the borrower has been unjustly enriched. (Cf. First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1668.)
Plaintiff alleged that defendants borrowed money from her and did not pay her back. This is sufficient to state a cause of action for unjust enrichment. (First Nationwide Savings v. Perry, supra, 11 Cal.App.4th at p. 1668.)
Defendants argue that they were not “unjustly” enriched. Specifically, Yuri claims that money was given to him, not out of contractual considerations, but out of romantic considerations. As we previously stated, we consider the pleadings and not other extrinsic matters. There is nothing in the pleadings to indicate there was a romantic relationship between plaintiff and Yuri.
Common Counts
The trial court sustained the demurrers to the common counts cause of action for the reasons stated with regard to the breach of contract cause of action. As we did with that cause of action, we conclude plaintiff stated a cause of action for common counts.
A common count for money had and received is pled by alleging (a) defendant was indebted to plaintiff, (b) in a certain amount, (c) for consideration, and (d) nonpayment. (4 Witkin, Cal. Procedure, supra, Pleading, § 518, pp. 608-609; see also Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623.) The allegations set forth in plaintiff’s fourth cause of action are sufficient to allege a common counts cause of action.
Motion to Strike the Third Amended Complaint
On July 31, 2006, the trial court sustained the demurrers to the second amended complaint. The trial court allowed 15 days leave to amend. Plaintiff filed her third amended complaint 18 days later and defendants moved to strike on this ground. In an effort to avoid reversal, defendants assert that because plaintiff did not seek relief under Code of Civil Procedure section 473, the motion to strike should have been granted. We disagree.
The trial court specifically denied defendants’ motion to strike the belated third amended complaint. Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 874 provides that the court has discretion to accept an untimely amendment without a noticed motion by plaintiff.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order sustaining defendants’ demurrers without leave to amend and to enter an order overruling the demurrers as to all causes of actions for all defendants. Plaintiff is to recover costs on appeal.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.