Motion for Leave to File Cross Complaint
Healthcare (2010) 183 Cal.App.4th 1350, 1370; Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 793.)
The Fourth District, Division 3, explained in Munoz v. MacMillan (2011) 195 Cal.App.4th 648: “There is no freestanding cause of action for ‘restitution’ in California. [Citation omitted.] Common law principles of restitution require a party to return a benefit when the retention of such benefit would unjustly enrich the recipient; a typical cause of action involving such remedy is ‘quasi-contract.’” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661.) Thus, there must be a valid cause of action on which to support the remedy of restitution or unjust enrichment. (See Rutherford, supra, 223 Cal.App.4th 221, 231 [construing the unjust enrichment claim to be a cause of action for quasi-contract claim seeking restitution].)
A party to an express contract may assert a claim for restitution based on unjust enrichment by “alleg[ing in that cause of action] that the express contract is void or was rescinded.” [Citation.] A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement. (Rutherford Holdings, LLC v. Plaza Del Rey, supra, 223 Cal.App.4th at p. 231, internal citations omitted, bold added.)
Thus, while a Complaint may plead the alternative of both breach of contract and restitution based on a quasi-contract, to sufficiently plead unjust enrichment/restitution, a complaint must allege that the express contract is void or was rescinded. Here, the Complaint contains no such allegation. Thus, the demurrer on this ground is SUSTAINED with leave to amend.
Lastly, Defendant demurs to the unnumbered cause of action for “implied warranty of good faith and fair dealing.”
The demurrer to this cause of action is SUSTAINED as Plaintiff has failed to plead any facts to support the cause of action and fails to comply with Rules of Court, Rule 2.112.
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Defendant to give notice.
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Defendant moves to strike the prayer for punitive damages from the Complaint. But on 7/7/26, Plaintiff filed a request to dismiss the claim for punitive damages, which was entered on the same date. (ROA 49.) Thus, the instant motion is DENIED AS MOOT. Plaintiff has already dismissed punitive damages from the Complaint.
52 Shaffer vs. Hussein
26-01542357 Motion for Leave to File Cross Complaint
Defendant Syed Zakir Hussain’s (Erroneously sued as Syed Zakir Hussein) unopposed motion for leave to file a cross-complaint is GRANTED. (Code of Civ. Proc. § 426.50.)
Defendant to file the Cross-Complaint attached to the instant motion as Exhibit A, without any changes, within 10 days of this ruling.
Moving Party is to give notice.
53 Varilease Finance, Inc. vs. Tactical Fleet Services, LLC
23-01301701 Motion to Appear Pro Hac Vice
The unopposed Application of Seamus W. Appel to appear as counsel pro hac vice on behalf of Plaintiff Varilease Finance, Inc. is GRANTED. Moving attorney met the requirements of California Rules of Court, rule 9.40.
Plaintiff or Seamus W. Appel to give notice.
54 Andrews vs. General Motors, LLC
24-01448034 Motion for Attorney Fees
The Motion for Attorneys’ Fees and Costs brought by Plaintiff Kimberly Andrews is GRANTED, in part. Defendant General Motors, LLC is ordered to pay Plaintiff attorneys’ fees in the amount of $20,439.00 and costs in the amount of $1,010.83, pursuant to Civil Code section 1794, subdivision (d).
Plaintiff’s evidentiary objections are OVERRULED. (ROA No. 78.)
It is undisputed the Song-Beverly Act allows a prevailing plaintiff to recover “costs and expenses, including attorneys’ fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, §1794, subd. (d).)
Additionally, it is undisputed Plaintiff qualifies as a “prevailing party,” for purposes of this provision. Consistent with the Offer to Compromise reached by the parties, the Judgment states: “Plaintiff’s attorney’s fees, expenses and costs that have been reasonably incurred pursuant to California Civil Code § 1794(d) may be determined by the Court via noticed motion. For purposes of any such motion, GM agrees that Plaintiff is the prevailing party.” (See ROA No. 66 [Judgment]; See also ROA No. 45 [Offer to Compromise].)
Lastly, there is no dispute this motion was timely brought. (See Cal. Rules of Court rules 3.1702(b)(1) and 8.104(a).) The instant motion was filed on May 11, 2026, prior to entry of Judgment on May 13, 2026. (See ROA Nos. 57 and 66; See also Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1086.) “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “ ‘In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of