The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Money Had & Received

1 Elements and Case Citations

One of the Common Counts, “‘A cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum “for money had and received by the defendant for the use of the plaintiff.”’  This common count is available in a great variety of situations . . . and ‘lies wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.‘”   Gutierrez v. Girardi, 194 Cal. App. 4th 925, 937 (2011).

“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, 112 Cal. App. 4th 950, 958 (2003).

“The elements of a claim for money had and received are:

(1) the defendant received money that was intended to be used for the benefit of the plaintiff;

(2) the money was not used for the benefit of the plaintiff; and

(3) the defendant has not given the money to the plaintiff.

Chase Inv. Servs. Corp. v. Law Offices of Jon Divens & Assoc., LLC, 748 F. Supp. 2d 1145, 1175 (C.D. Cal. 2010) (citing Judicial Council of California, California Civil Jury Instructions (CACI) 370), aff’d, 2012 U.S. App. LEXIS 16316 (9th Cir. Cal., Aug. 6, 2012). 

 Gilbert v. Chase Home Fin., LLC, No. 1:13-CV-265 AWI SKO, 2013 U.S. Dist. LEXIS 107833, at *21 (E.D. Cal. July 31, 2013).

For form pleading see California Judicial Council form No. PLD-C-001(2) (“Common Counts”).

CALIFORNIA STATE COURTS

Supreme Court of California:  Mains v. City Title Ins. Co., 34 Cal. 2d 580, 586 (1949).

California 1st District:  Kaiser Found. Health Plan v. Aguiluz, 47 Cal. App. 4th 302, 305 (1996), overruled on other grounds sub nom Snukal v. Flightways Manufacturing, Inc., 23 Cal. 4th 754, 775-76 (2000).

California 2d District:  Gutierrez v. Girardi, 194 Cal. App. 4th 925, 937 (2011).

California 3d District:  Farmers Ins. Exchange v. Zerin, 53 Cal. App. 4th 445, 460 (1997).

California 4thDistrict:  City Bank of San Diego v. Ramage, 266 Cal. App. 2d 570, 585 (1968); Rains v. Arnett, 189 Cal. App. 2d 337, 344 (1961).

California 5th District:  None.

California 6th DistrictAvidor v. Sutter’s Place, Inc., 212 Cal. App. 4th 1439, 1454 (2013).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th CircuitBank of America Nat’l Trust & Sav. Asso. v. Hayden, 231 F.2d 595, 601 (9th Cir. 1956).

Central District:  Chase Inv. Servs. Corp. v. Law Offices of Jon Divens & Assoc., LLC, 748 F. Supp. 2d 1145, 1175 (C.D. Cal. 2010) (citing Judicial Council of California, California Civil Jury Instructions (CACI) 370), aff’d, 2012 U.S. App. LEXIS 16316 (9th Cir. Cal., Aug. 6, 2012).

Eastern District:  Gilbert v. Chase Home Fin., LLC, No. 1:13-CV-265 AWI SKO, 2013 U.S. Dist. LEXIS 107833, at *21 (E.D. Cal. July 31, 2013).

Northern DistrictHaskins v. Symantec Corp., No. 13-cv-01834-JST, 2013 U.S. Dist. LEXIS 169865, at *34-35 (N.D. Cal. Dec. 2, 2013).

Southern District:  Rideout v. Similasan Corp., No. 12cv0376-BTM-WMC, 2013 U.S. Dist. LEXIS 69369, at *17 (S.D. Cal. May 14, 2013).

2 Issues and Defenses to Claim for Money Had & Receoved

(1)  Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses.

(2)   Statute of Limitations:  Two years under Cal. Code Civ. Proc. § 399(1).  See Orloff v. Metropolitan Trust Co., 17 Cal. 2d 484, 489 (1941),

(3)    Same Grounds for Demurrer as Related Specific Claims:  “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, 123 Cal. App. 4th 379, 394-95 (2004).

(4)  Limitations on Need to Plead Affirmative Defenses to Common Counts:  Because “Money Had and Received” is one of the “common counts” there are limitations on the requirements to plead affirmative defenses:

“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 Insurance Co. v. State Bd. of Equalization, 4 Cal. 4th 715, 731 (1992).

(5)  Lack of Receipt of Funds:  “Recovery is denied in such cases unless the defendant himself has actually received the money.”  Rotea v. Izuel, 14 Cal. 2d 605, 611 (1939).

(6)  Action Will Lie to Recover Payments Under Void Conract:  “A borrower may bring an action for money had and received to recover usurious interest paid within two years of the suit. . .   The interest portion of the contract is void, not merely voidable.”  Whittemore Homes, Inc. v. Fleishman, 190 Cal. App. 2d 554, 561 (1961).