Kristen Lopez, et al. v. J. Herrera Construction, Inc.

Kristen Lopez, et al. v. J. Herrera Construction, Inc., 25CV-0470

Hearing: Demurrer to Cross-Complaint

Date: September 10, 2026

Kristen Lopez and Christopher Lopez filed this action against J. Herrera Construction, Inc. (JHC), Jerome Frank Herrera, Jr. and Alexis Marie Herrera on July 17, 2025, arising out of construction work at the Lopez’s Los Osos property.

On September 17, 2025, JHC filed a cross-complaint against the Lopezes. November 13, 2025, JHC filed a first amended cross complaint (FACC) against the Lopezes and Derrel Ridenour (collectively Cross-Defendants). On March 5, 2026, the Court sustained a demurrer to the first, second, fifth, sixth, seventh, eighth, tenth and eleventh causes of action in the FACC with leave to amend, and overruled the demurrer as to the third, ninth and twelfth causes of action.

On March 13, 2026, JHC filed a second amended cross-complaint (SACC). The SACC alleges causes of action for 1) breach of contract—interior contract, against the Lopezes; 2) breach of contract—exterior contract, against the Lopezes; 3) breach of the implied covenant of good faith and fair dealing—interior and exterior contract, against the Lopezes; 4) quantum meruit— interior and exterior contracts, against the Lopezes; 5) promissory estoppel—interior and exterior contracts, against all Cross-Defendants; 6) unjust enrichment, against all Cross-Defendants; 7) money had and received, against all Cross-Defendants; 8) tortious interference, against Ridenour; 9) enforcement of guarantee, against Ridenour; 10) fraudulent misrepresentation, against Ridenour; 11) negligence misrepresentation, and against the Lopezes.

Cross-Defendants now bring a demurrer to the first, second, fifth, sixth, seventh, ninth and tenth causes of action in the SACC.

In response to the demurrer, on August 27, 2026, JHC filed a third amended cross-complaint (TACC).

On September 2, 2026, Cross-Defendants filed a notice that no opposition to the demurrer was filed or served by the August 27, 2026, deadline, and stating that because JHC has already amended its operative pleading once without leave of court, the TACC is improper pursuant to Code of Civil Procedure section 472(a) and should be stricken.

On September 2, 2026, JHC filed an untimely opposition to the demurrer.1

1 The Court reviewed JHC’s untimely opposition, but it did not change the Court’s ruling set out below. 1

Counsel for Cross-Defendants met and conferred with counsel for JHC prior to filing the demurrer. (See Balch Decl.) Counsel for the parties disagrees on who let the meet and confer process lapse, necessitating the filing of the demurrer. Regardless, a determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Court grants Cross-Defendants’ request that the Court take judicial notice of Exhibits A-F, which consist of the complaint, FAC, cross-complaint, FACC, the Court’s ruling on the demurrer to the FACC, and the SACC.2

I.

Legal Standard

A demurrer tests the legal sufficiency of the allegations in a complaint. It can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).)

A demurrer raises issues of law, not fact, regarding the complaint's form or content. (Code Civ. Proc., § 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Lewis v. Safeway (2015) 235 Cal.App.4th 385, 388.) A demurrer “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.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, citations omitted.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) When reviewing a demurrer, a court must draw all reasonable inferences in favor of the plaintiff. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239). Moreover, “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

II.

Discussion

Cross-Defendants contend that the first, second, fifth, sixth, seventh, ninth and tenth causes of action are defective and contain the same defects as the FACC. JHC contends that the SACC is adequately pleaded and addresses the issues raised in the demurrer to the FACC. It further contends that it is willing to amend to provide further clarification and specifics.

2 JHC objects that judicial notice on the grounds that Cross-Defendants use it as an evidentiary bases to establish pleading defects. The Court takes judicial notice of the existence, content and legal effect of these documents, but not to establish the truth of the matters therein. 2

a. Breach of Contract – Interior and Exterior

Cross-Defendants demur to the two breach of contract causes of action on the grounds that they fail to state a cause of action and/or are uncertain. (Code Civ. Proc., § 430.10(e), (f).)

The elements of a cause of action for breach of contract are (1) the contract, (2) plaintiff’s performance, (3) defendant’s breach, and (4) the resulting damages. (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal. App. 4th 1230, 1244.) Cross-Defendants argue that the SACC fails to provide clear allegations concerning the contract that it claims Cross- Defendants breached, and that the additional allegation in the SACC regarding additional orally requested work exacerbate the issues and fail to identify any of the terms or scope of the actual agreements it contends Cross-Defendants breached. (Ps&As, p. 6.)

JHC identifies the written interior contract as Exhibit B and the written exterior contract as Exhibit D.3 JHC alleges that Cross-Defendants materially breached the contracts including by failing to make timely payments and by wrongfully withholding payments for agreed-upon contractual obligations. (See SACC, ¶¶ 64, 71.)

A court may sustain a demurrer only if the complaint fails to state a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

This Court finds that whether or not JHC can recover under the contracts for work pursuant to the alleged oral requests, the allegations are sufficient at this stage to state a claim for breach of the written contracts. (SACC, ¶¶ 60-72; Exs. B, D.) Nor does the Court find the SACC so uncertain that Cross-Defendants cannot reasonably respond.

The Court overrules Cross-Defendants’ demurrer to the first and second causes of action.

b. Promissory Estoppel

Cross-Defendants demur to the fifth cause of action for promissory estoppel on the grounds that it fails to allege facts sufficient to state a claim. (Code Civ. Proc., § 430.10(e).)

“The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.)

3 The Court notes that the exhibits were omitted from the SACC but are attached to the FACC. 3

Cross-Defendants contend that the SACC alleges only vague oral representations to JHC and that they fail to address that the contracts require any change orders to be in writing, and therefore there cannot be reasonable reliance.

However, the Court finds that the SACC sufficiently alleges facts to meet all four elements of a claim for promissory estoppel against the three Cross-Defendants. (See, e.g., SACC, ¶¶ 33-44, 54- 56, 86-93.) Whether reliance is reasonable is a factual question, and the Court cannot say as a matter of law that reliance was unreasonable. (See MacIsaac & Menke Co. v. Cardox Corp. (1961) 193 Cal.App.2d 661, 670 [defendant could not raise defense that a written order was not obtained under a contract; by its acts and conduct it had waived and was estopped to rely upon the subcontract provision requiring its prior written approval before proceeding with work involving extra compensation]; see also Frank T. Hickey, Inc. v. Los Angeles Jewish Community Council (1954) 128 Cal.App.2d 676, 683)

The Court overrules Cross-Defendants’ demurrer to the fifth cause of action for promissory estoppel.

c. Unjust Enrichment

Cross-Defendants demur to the sixth cause of action for unjust enrichment on the grounds that it fails to allege facts sufficient to state a claim. (Code Civ. Proc., § 430.10(e).)

Cross-Defendants contend that unjust enrichment is not a separate cause of action, and that as with the FACC, the unjust enrichment claim is duplicative of the quantum merit claim.

The unjust enrichment cause of action remains largely unchanged from the FACC. JHC contends that the two claims are different as lost profits may be obtained as part of an unjust enrichment cause of action, but not a quantum meruit claim. JHC’s quantum meruit cause of action seeks reasonable value of services, while the unjust enrichment claim seeks lost profits on top of reasonable value of services. (SACC, ¶¶ 84, 85, 93, 97.)

However, while unjust enrichment may encompass benefits retained beyond restitution, lost profits are a legal remedy and unavailable as an equitable, unjust enrichment remedy. (Lee v. Luxottica Retail North America, Inc. (2021) 65 Cal.App.5th 793, 807 [lost profits are legal damages and not a restitutionary remedy]; County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 542 [unjust enrichment, which includes elements of restitution and disgorgement, is focused on the value of the wrongdoer’s enrichment, not the victim’s loss].) Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 662, cited by JHC, discusses lost profits as part of a legal claim for breach of contract.

JHC has failed to show that its claim for unjust enrichment states a claim separate from its claim for quantum meruit as to the Lopezes.

However, the fourth cause of action for quantum meruit is alleged only against the Lopezes, not against Ridenour, and therefore the claim is not duplicative as to him. To the extent that unjust enrichment is a remedy, rather than a cause of action, the facts sufficiently allege a theory of quasi-contract or quantum meruit. 4

Cross-Defendants’ demurrer is sustained as to the Lopezes and overruled as to Ridenour.

d. Money Had and Received

Cross-Defendants demur to the seventh cause of action for money had and received on the grounds that it fails to allege facts sufficient to state a claim. (Code Civ. Proc., § 430.10(e).)

A cause of action for money had and received may be stated where “the defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the money was not used for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” (Camden Sys., LLC v. 409 N. Camden, LLC (2024) 103 Cal. App. 5th 1068, 1082 [citations omitted].) “The essential elements of an action for money and/or goods had and received are (1) a statement of indebtedness of a certain sum, (2) the consideration made by the plaintiff, and (3) nonpayment of the debt. [Citation.]” (First Interstate Bank v. State of California (1987) 197 Cal. App. 3d 627, 635.)

Cross-Defendants contend that the SACC continues to suffer the same defects as the FACC, as JHC cannot identify any specific sum of money purportedly for its benefit but retained by the Lopezes, and instead continues to seek lost profits.

The SACC alleges that Cross-Defendants received and/or controlled funds from financier Ridenour that were intended to be used to pay Cross-Complainants for construction work, and instead they withheld payments due for the work performed. (SACC, ¶ 99.)

JHC cites no authority that the facts alleged here state a claim for money had and received, or that the “Doctrine of Less Particularity” does away with the requirement that the claim be for a sum certain.5

The facts here continue to fail to state a claim for money had and received. Cross-Defendants’ demurrer to the seventh cause of action for money had and received is sustained.

4 To the extent that JHC seeks an improper remedy of lost profits, that would properly be the subject of a motion to strike, not a demurrer. 5 Additionally, as with the FACC, instead of alleging that specific money of a certain sum as withheld, JHC seeks the full value of the work performed, including lost profits, in the same amount as in the unjust enrichment cause of action. (SAC, ¶ 106.) As set forth above, and as discussed in the ruling on the last demurrer, lost profits are a legal remedy not available pursuant to a common count.

e. Enforcement of Guarantee

Cross-Defendants demur to the ninth cause of action for enforcement of guarantee against Ridenour on the grounds that it fails to allege facts sufficient to state a claim and fails to allege whether the guaranty contract is written or oral. (Code Civ. Proc., § 430.10(e), (g).) JHC alleges that Ridenour was the “guarantor of financing” to the Lopezes and personally participated in the construction process. (SACC, ¶ 3.)

A surety or guarantor is one who promises to answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor. (Civ. Code, § 2787.) A guaranty is a contract, and “[]a guarantor or surety cannot be held beyond the express terms of his contract. [Citation.]” (G & W Warren's, Inc. v. Dabney (2017) 11 Cal.App.5th 565, 574.) A guaranty is interpreted by the same rules used in construing other types of contracts. (Ibid.)

Civil Code section 1624 provides that a promise to answer for the debt, default, or miscarriage of another is invalid unless in writing and subscribed by the party to be charged. (Civ. Code § 1624, subd. (a)(2).) Exceptions to the statute of frauds are set forth in Civil Code section 2794 for promises that answer for the obligation of another but are deemed an original obligation of the promisor.

JHC alleges that Ridenour, “by his own written, verbal, and implied admissions as stated earlier in the complaint, is known to [JHC] as the guarantor or surety of both the Interior and Exterior Contracts.” (SACC, ¶ 118.) It further alleges that Ridenour “orally and in numerous written contexts states to Cross-Complainants that he is the surety or financer of the Project, the one in charge of all the payments and money relating to the Subject Property.” (Ibid.)

JHC does not allege a written guaranty that would satisfy the statute of frauds.

JHC contends that the allegations of the complaint put it into the exception to the statute of frauds “[w]here the promise is upon a consideration beneficial to the promisor.” (Civ. Code § 2794(4).) “It is well settled that whenever the leading and main object of the promisor is not to become surety or guarantor of another but to subserve some purpose or interest of his own, the promise is not within the statute even though performance of the promise may pay the debt or discharge the obligation of another.” (Merritt v. J. A. Stafford Co. (1968) 68 Cal.2d 619, 628.)

JHC argues that allegations of Ridenour’s direct involvement and control of the project show that Ridenour had a primary obligation, rather than a collateral guaranty. However, JHC fails to cite the allegations to which it refers or cite any authority that is on point. Nor are the terms of any alleged contract for guaranty, written or oral, sufficiently clear.

To the extent that JHC alleges or argues that the allegations state a claim for promissory estoppel or quasi-contract (SACC, ¶ 118; Opp., p. 15, l. 2-9), JHC has separate claims for those equitable remedies against Ridenour.

Cross-Defendants’ demurrer to the ninth cause of action for enforcement of guarantee is sustained.

f. Fraudulent Misrepresentation

Finally, Cross-Defendants demur to the tenth cause of action for fraudulent misrepresentation against Ridenour on the grounds that it fails to allege facts sufficient to state a claim. (Code Civ. Proc., § 430.10(e).)

The elements of fraud are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039, 1060.)

“A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To assert a promissory fraud cause of action a complaint must allege (1) the defendant made a representation of intent to perform some future action and (2) the defendant did not intend to perform the promise at the time it was made. (Id. at 639.) Pleading the false promise requires allegations of “facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Id. at 645 [citations omitted].)

“As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance.” (Beckwith v. Dahl, supra, 205 Cal.App.4th at 1060 [citation omitted].) “‘Purely evidentiary matters—usually circumstantial evidence or admissions showing lack of that intention—should not be pleaded. Hence, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 725, p. 142.)’” (Ibid.)

Cross-Defendants contend that JHC fails to meet the heightened pleading standard for such a claim and that JHC fails to identify any specific misrepresentations, the dates or how they were conveyed, or to establish the falsity of the purported representations by Ridenour or fraudulent intent.

Reviewing the allegations of the SACC against the standard above, the Court finds them sufficient to state a claim for promissory fraud.

Cross-Defendants’ demurrer to the tenth cause of action for fraudulent misrepresentation is overruled.

ORDER (PROPOSED)

The TACC currently on file is stricken as improperly filed.

Cross-Defendants’ demurrer to the first, second, fifth and tenth causes of action is overruled.

Cross-Defendants’ demurrer to the fourth cause of action is overruled as to Ridenour and sustained as to the Lopezes without leave to amend.

Cross-Defendants’ demurrer to the seventh and ninth causes of action is sustained without leave to amend.

Cross-Defendants shall file and serve their answer to the remaining causes of action within ten days of service of notice this order. (Cal. Rules of Court, rule 3.1320(g), (j)).

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