CACI No. 371. Common Count: Goods and Services Rendered

Judicial Council of California Civil Jury Instructions (2023 edition)

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371.Common Count: Goods and Services Rendered

[Name of plaintiff] claims that [name of defendant] owes

[him/her/nonbinary pronoun/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

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the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,

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 (5th ed. 2008) Pleading, § 554

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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Page last reviewed May 2023