Callender Commercial Properties, LLC v. Jeremy Thomas, et al.

Callender Commercial Properties, LLC v. Jeremy Thomas, et al., 25CV-0708

Hearing: Demurrer

Date: July 29, 2026

Callender Commercial Properties, LLC (Plaintiff) filed this action on November 6, 2025, against Jeremy Thomas (Thomas) and Spencer Juarez (Juarez) (collectively Defendants). Plaintiff filed a first amended complaint (FAC) in December 2025, setting forth a cause of action for (1) default on promissory note and (2) money had and received. Juarez’s default was entered in June 2026.

Currently on calendar is Thomas’s demurrer to the FAC. Thomas argues the FAC fails to state facts sufficient to state a cause of action and is uncertain. (Code Civ. Proc., § 430.10(e), (f).) The demurrer for uncertainty is overruled. Such demurrers are sustained “ ‘ “only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ ” [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The FAC does not meet that level of uncertainty.

As to the first cause of action, Thomas argues the FAC fails to “allege essential terms necessary to enforce the note.” (Dem., p. 3, ll. 14-15.) In particular, Thomas argues the promissory note, which is attached to the FAC as exhibit A, provides that interest does not accrue unless Defendants fail to cure a default within 10 days after written demand. Thomas argues the FAC fails to allege Plaintiff made any written demand or that Defendants failed to cure within the contractually allowed period.

In support, Thomas cites Careau & C. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1389 (Careau). The question in Careau was whether the parties had formed a contract. (Id. at p. 1388.) The court in Careau found that the letter at issue could “only be constructed as a conditional agreement ... subject to several specific conditions precedent which were required to be satisfied before the defendants would be contractually committed to provide the proposed financing.” (Id. at p. 1403.) The Court found the complaint failed to sufficiently allege performance of those conditions for purposes of pleading a binding contract. (Id. at p. 1390.) Here, in contrast the question is whether Plaintiff performed the condition necessary to recover interest, a factual question concerning the amount of damages, not whether the FAC pleads a breach of contract claim.

Additionally, Plaintiff responds Civil Code section 3287(a) provides for the recovery of interest to any person entitled to recover damages.

The demurrer to the first cause of action on the ground that the FAC fails to allege terms necessary to enforce the note is overruled.

Thomas next argues the first cause of action fails because it does not sufficiently allege Plaintiff’s performance. The FAC alleges generally that “Plaintiff has fully performed under the loan transaction.” (FAC, ¶ 12.) Thomas argues that general allegation fails “to plead any facts describing what consideration was provided, when funds were actually transferred, or how Plaintiff performed its obligations.” (Dem., p. 4, ll. 25-27.)

“In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part ....” (Code Civ. Proc., § 457.) Although there are some exceptions to the general rule, Thomas has not shown they apply here. (Careau, supra, 222 Cal.App.3d at pp. 1389- 1390 [pleading condition is a necessary part of pleading the defendant’s breach; if pleading sets forth what actually occurred and those specific facts do not constitute due performance].)

The demurrer to the first cause of action for failing to plead Plaintiff’s performance is overruled.

As for the second cause of action, Thomas argues a quasi-contract action “does not lie where, as here, express binding agreements exist and define the parties’ rights. [Citations.]” (California Medical Assn. v. Aetna U.S. Healthcare (2001) 94 Cal.App.4th 151, 172; Jalali v. Root (2003) 109 Cal.App.4th 1768, 1783 [applying rule to money had and received claim].) A plaintiff, however, “may plead inconsistent claims that allege both the existence of an enforceable agreement and the absence of an enforceable agreement ....” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389.) The FAC, however, does not plead the promissory note is unenforceable.

The demurrer to the second cause of action is sustained with leave to amend.

ORDER

The demurrer to the first cause of action is overruled. The demurrer to the second cause of action is sustained with leave to amend. Plaintiff is to file a second amended complaint within ten (10) days from service of the notice of ruling. (Code Civ. Proc., § 472b; Cal. Rules of Court, rule 3.1320(g).) Thomas is to serve the notice of ruling. (Code Civ. Proc., § 1019.5.)

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