PEDRO BOSCHI vs MEGAN ALLEN et al

Defendants engaged Plaintiff to board and train six dogs in Los Angeles County. Defendants, Allen and Darwish agreed to pay Plaintiff $250 per day, per dog for the services. (Complaint ¶ 8)

Plaintiff performed the services to the satisfaction of Allen and Darwish. Plaintiff kept an account for his rendered services. In total, Allen and Darwish incurred more than $70,000.00 in fees. Defendants made installment payments. The last payment was made by Darwish in March 2025. There remains an unpaid balance of at least $13,900.00. Darwish and Allen have refused to pay the balance claiming the debt is responsibility of the rescue entity, Zeppelin & Friends. (Complaint ¶¶ 10-14)

Plaintiff initiated this action on August 27, 2025, alleging causes of action for (1) breach of contract, (2) open book account, and (3) goods and services rendered.

II. Legal Standard

“The party against whom complaint or cross-complaint has been filed may object, by demurrer or answer as provided in [Code of Civil Procedure] section 430.30, to the pleading on any one or more of the following grounds: . . . (e) The pleading does not state sufficient facts to constitute cause of action, (f) The pleading is uncertain.” (C.C.P. § 430.10(e) & (f).)

A demurrer may be used by “[t]he party against whom complaint has been filed” to object to the legal sufficiency of the pleading as whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (C.C.P. §§ 430.10 & 430.50(a).)

“A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 213-214.) In ruling on demurrers, courts may consider matters subject to judicial notice. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App. 4th 743, 751.) Evidentiary facts found in exhibits attached to complaint can be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)

Under California law, even if a demurrer is sustained, leave to amend the complaint is routinely granted. “Liberality in permitting amendment is the rule, if fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1227.) “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (McDonald v. Sup. Ct. (Flintkote Co.) (1986) 180 Cal. App. 3d 297, 303-304.)

III.

Analysis

A. Breach of Contract

To allege a cause of action for breach of contract, a plaintiff must allege (1) existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages. (Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 815, 921.)

This claim, as alleged in the complaint, is subject to demurrer on three independent grounds:

1. Section 430.10(g) Defect—Nature of Contract Not Ascertainable. The complaint fails to state whether the alleged contract is written, oral, or implied by conduct, as required by Code of Civil Procedure section 430.10, subdivision (g). The complaint alleges only that "Defendants engaged Plaintiff to board and train six dogs" and that "Allen and Darwish agreed to pay Plaintiff $250 per day, per dog." (Complaint ¶ 8) Nowhere does the complaint specify the form of the contract. Boschi's opposition concedes this defect by announcing for the first time that "the contract is oral and implied by conduct." (Opposition at 3:14-16) It is elementary that a pleading cannot be amended by statements in a brief.

Boschi's need to supply the contract's character in his opposition proves the statutory defect. Boschi's reliance on Chen v. Berenjian (2019) 22 Cal.App.5th 811, is misplaced. Chen involves demurrers for uncertainty under section 430.10, subdivision (f), not subdivision (g). Subdivision (g) imposes a separate and specific requirement: in an action founded upon a contract, the pleading itself must disclose whether the contract is written, oral, or implied by conduct. (Code. Civ. Proc. § 430.10(g).)

This requirement is not satisfied through discovery and is not excused because a defendant may know facts about the parties' dealings—it defines the very claim Darwish must answer, including the applicable limitations period. Moreover, Boschi hedges between two legally distinct theories—an express oral agreement and a contract implied in fact—which carry different elements and proof. This ambiguity compounds the pleading defect.

2. Failure to Allege Essential Terms – Setting the section 430.10(g) defect aside, the complaint fails to plead the contract's essential terms or legal effect with the specificity California law requires. For a contract to be enforceable the terms of the contract must be sufficiently certain to provide a basis for determining what obligations the parties have agreed to. (Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793, 811.) Plaintiff may either plead the terms of the contract -by attaching the agreement or quoting the language- or plead the legal effect of the agreement. (Construction Protective Services, Inc. v.

TIG Specialty Ins. Co. (2002) 29 Cal. 4th 189, 198-199.) "In order to plead a contract by its legal effect, plaintiff must 'allege the substance of its relevant terms. This is more difficult, for it requires careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.'" (McKell v. Washington Mut., Inc. (2006) 142 Cal. App. 4th 1457, 1489.) Plaintiff alleges only a price term ($250 per day, per dog) and nothing more. It does not allege when any agreement was formed, when payment was due, the duration of the engagement, or whether the six dogs were the subject of one agreement or several.

These omissions prevent Darwish from ascertaining the basic contours of the alleged contractual obligation. More fundamentally, the complaint fails to identify who promised to pay. Paragraph 8 alleges that "Defendants engaged Plaintiff," i.e., all three defendants, but that only "Allen and Darwish agreed to pay Plaintiff $250 per day, per dog." Paragraph 9 narrows the obligation further, alleging that "Darwish personally promised to pay Plaintiff for all the Services." Paragraph 16 then broadens it again, alleging that "Defendants agreed to pay Plaintiff $250 per dog, per day, for the Services"- sweeping in Zeppelin, the entity Paragraph 8 had excluded from the payment term.

These are three different contractual theories: (a) a joint obligation of Allen and Darwish; (b) a sole obligation of Darwish for the entire debt; and (c) an obligation of all defendants including Zeppelin. Each carry different legal consequences for joint and several liability, the statute of frauds, and the applicable limitations period. Darwish cannot ascertain from the pleading which obligation he is alleged to have undertaken.

3. Statute of Frauds - The complaint's own allegations suggest that Darwish's promise was a collateral guarantee barred by the statute of frauds. Paragraph 9 alleges Darwish's “personal promise” to pay Plaintiff for all the services was made "[t]o further induce Plaintiff to perform the Services without an upfront payment" after Allen represented that the dogs' circumstances were dire. Paragraph 10 alleges the dogs were returned "trained and ready for adoption or to return to their prior owners"—they were not Darwish's dogs.

Paragraph 14 alleges that "Allen and Darwish now claim that debt is the responsibility of Zeppelin, only." On the face of the pleading, the services were rendered for the benefit of Allen and the rescue entity, and Darwish's alleged "personal promise" appears to be a special promise to answer for the debt or default of another— invalid unless in writing and subscribed. (Civ. Code § 1624(2).) No writing is alleged or attached. Boschi's opposition asserts that Darwish is "primarily liable," not a guarantor. (Opposition at 4:3-5) But this characterization contradicts the complaint's allegations.

Drawing reasonable inferences in favor of the plaintiff does not permit the plaintiff to escape the allegations he has actually made. While the rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, the Court must still accept the material facts as pleaded. Whether Darwish's promise constitutes an original obligation exempt from the statute of frauds under Civil Code section 2794, subdivision (4)—because it was upon a consideration beneficial to the promisor—depends on facts not adequately pleaded. (Civ.

Code § 2794(4).) The complaint does not allege what benefit, if any, Darwish personally derived from the arrangement.

Based on the foregoing, Defendant’s demurrer to the first cause of action is SUSTAINED WITH 15 DAYS LEAVE TO AMEND.

B. Open Book Account

To establish a common count for open book account, Plaintiff must allege (1) the existence of a financial relationship between the parties; (2) that the creditor, in the regular course of business, kept an account of the debits and credits involved in the [*6] transactions; (3) that the debtor owes money on the account; and (4) evidence showing the amount owed. (CACI No. 372; Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)

“A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Ibid.)

The common count here is not pled in the alternative, but incorporates the identical factual allegations from the breach of contract cause of action and re-alleges the same agreement. The only new allegation in this cause of action states merely that Boschi "in the regular course of business, kept a written account" of the debts and credits. (Complaint ¶ 22) This describes Boschi's unilateral record-keeping, not the parties' agreement to treat their transaction as items in an open book account. Since Plaintiff’s second cause of action rests on the same defective contract allegations, it fails with the first cause of action.

Therefore, Defendant’s demurrer to the second cause of action is SUSTAINED WITH 15 DAYS LEAVE TO AMEND.

C. Goods & Services Rendered (Quantum Meruit)

"To recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant." (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.)

"A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice. However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation." (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419, internal citation omitted; See also, Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203 ["it is well settled that an action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter."].)

Plaintiff alleges Darwish "agreed to pay Plaintiff $250 per day, per dog" and "personally promised to pay Plaintiff for all the Services." (Complaint ¶¶ 8, 9) These allegations of an express agreement preclude recovery under quantum meruit. Boschi's reliance on Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 6 Cal.App.5th 1207, for the proposition that he may plead inconsistent causes of action is unavailing. While a plaintiff may plead breach of contract and common counts in the alternative, the quantum meruit claim here is not pled as an alternative theory. The third cause of action incorporates Paragraphs 1 through 24, including all allegations of the agreement. Plaintiff does not plead this cause of action in the alternative; if no contract existed.

Furthermore, recovery in quantum meruit requires that the services were intended to and did benefit the defendant. (Ochs, supra, 115 Cal.App.4th at p 794.) Plaintiff’s own allegations negate any direct benefit to Darwish individually. Paragraph 10 alleges the trained dogs were released "for adoption or to return to their prior owners." Paragraph 14 alleges the underlying debt is claimed to belong to the rescue entity, Zeppelin. No direct benefit to Darwish individually is or can be alleged based on these facts. Boschi's opposition fails to address this fundamental defect.

III. Conclusion & Order

Defendant’s demurrer to Plaintiff’s complaint is SUSTAINED WITH 15 LEAVE TO AMEND.

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