California Civil Jury Instructions (CACI) (2017)

371. Common Count: Goods and Services Rendered

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371.Common Count: Goods and Services Rendered
[Name of plaintiff] claims that [name of defendant] owes [him/her/it]
money for [goods delivered/services rendered]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] requested, by words or conduct, that
[name of plaintiff] [perform services/deliver goods] for the benefit
of [name of defendant];
2. That [name of plaintiff] [performed the services/delivered the
goods] as requested;
3. That [name of defendant] has not paid [name of plaintiff] for the
[services/goods]; and
4. The reasonable value of the [goods/services] that were provided.
New June 2005
Sources and Authority
“ ‘ “Quantum meruit refers to the well-established principle that ‘the law implies
a promise to pay for services performed under circumstances disclosing that they
were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a
party need not prove the existence of a contract [citations], but it must show the
circumstances were such that ‘the services were rendered under some
understanding or expectation of both parties that compensation therefor was to
be made.’ ” [Citation.]’ ‘The underlying idea behind quantum meruit is the law’s
distaste for unjust enrichment. If one has received a benefit which one may not
justly retain, one should “restore the aggrieved party to his [or her] former
position by return of the thing or its equivalent in money.” [Citation.]’ “ ‘The
measure of recovery in quantum meruit is the reasonable value of the services
rendered provided they were of direct benefit to the defendant.” [Citations.]’ In
other words, quantum meruit is equitable payment for services already
rendered.” (E. J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th
1123, 1127–1128 [172 Cal.Rptr.3d 778], original italics, internal citations
omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
186
0112
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “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 [9 Cal.Rptr.3d 734],
internal citation omitted.)
• “[W]here services have been rendered under a contract which is unenforceable
because not in writing, an action generally will lie upon a common count for
quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76
Cal.App.4th 990, 996 [90 Cal.Rptr.2d 665].)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned. . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . 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. 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.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
CONTRACTS CACI No. 371
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Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.25, 121.55–121.58 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, §§ 44.33, 44.40 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
CACI No. 371 CONTRACTS
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