(Los Angeles County Super. Ct. No. BC437051) APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge.
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PUBLICATION
Reversed and remanded with directions.
In this case, we hold that an action lies to recover funds advanced by one party to another, to enable the latter to engage in legal gambling where the agreement reserves the right of the party advancing the money to terminate the relationship and recover money not expended. The trial court ruled otherwise in sustaining a demurrer to the complaint without leave to amend.
According to the charging pleadings, Xavier Kyablue entered into an oral agreement with defendant Abraham Watkins by which he transferred two sets of funds to Watkins, one to play poker according to Kyablue's specific instructions where it was legal to do so, and the other as a loan for living expenses to Watkins. The trial court sustained Watkins' demurrer on public policy grounds because the contract involved a gambling consideration. Kyablue contends the general rule against enforcement of gambling-related contracts does not apply to his complaint as pleaded, and argues the pleaded facts together with appropriate public policy considerations provide a viable cause of action on the contract. In the alternative, he contends that if the provision of the agreement involving gambling is found unenforceable, the court should sever it and allow him to seek enforcement of the provisions involving a personal loan from him to Watkins. We conclude that Kyablue's amended complaint stated a viable cause of action. We reverse the judgment (order of dismissal) and remand with directions.
FACTUAL AND PROCEDURAL SUMMARY
The following factual summary is taken from the charging pleading. Kyablue is a professional poker player and his friend, defendant Watkins, wanted to play professionally as well. In October 2008, the two entered into an oral agreement. As described more fully below, this contract provided that Kyablue would provide necessary financial backing for Watkins to play poker under specified conditions at locations where doing so was legal. The agreement also provided for Kyablue to loan money to Watkins for certain personal expenses and to "maintain his lifestyle." Even after money was transferred, it could not be spent without the express authorization of Kyablue. All winnings from gambling with the funds were to be split between the two men and all losses were to be borne solely by Kyablue. The agreement provided that Kyablue could terminate the arrangement at any time, in which event Watkins was to repay all loans and all other money not authorized to be used for gambling upon Kyablue's demand.
In November 2009, Kyablue terminated the relationship and asked for repayment pursuant to the terms of the agreement. By then, Watkins had received loans of $11,435 for personal expenses and $26,619 for potential, but not yet authorized, gambling purposes. These funds were never put into use for gambling purposes. Watkins refused to return the money and Kyablue alleges that he has converted it for his own use.
The charging pleading alleged causes of action for breach of oral contract, breach of a contract implied in fact, quasi-contract, money had and received, and conversion. The trial court sustained Watkins' demurrer without leave to amend on the ground that California public policy forbids enforcement of gambling-related contracts. This appeal followed.
In reviewing an order sustaining a demurrer, we assume well-pleaded factual allegations to be true and examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action on any legal theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)
California law requires that consideration for a contract be lawful. (Civ. Code, § 1607.)*fn1 Section 1667 provides that consideration is unlawful if it is contrary to an express provision of law or to the policy of an express law even if not expressly prohibited, or if it is "[o]therwise contrary to good morals." Courts have held it is "this section which establishes the law that a contract founded upon a gambling consideration is unenforceable." (Lavick v. Nitzberg (1948) 83 Cal.App.2d 381, 382.) In sustaining Watkins' demurrer, the trial court stated: "The overarching gravamen of this complaint has to do with the gambling contract, a gambling-related transaction. And it is a matter guided by the public policy of the State of California."
However, courts have recognized exceptions to the general rule against enforcing contracts founded on illegal consideration. (Tri-Q, Inc. v. Sta-Hi Corp. (1965) 63 Cal.2d 199, 218-219 (Tri-Q, Inc.); Kelton v. Stravinski (2006) 138 Cal.App.4th 941, 949.) The rule is "intended to prevent the guilty party from reaping the benefit of his wrongful conduct, or to protect the public from the future consequences of an illegal contract." (Tri-Q, Inc., at p. 218.) To serve these objectives courts recognize varying forms and degrees of illegality, and that the particular facts of the case must be considered before remedy is refused. (Ibid.; Homestead Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 990-991.) The rule is not intended to be inflexibly "applied in its fullest rigor under any and all circumstances," but involves weighing the relative moral fault of the plaintiff and defendant, whether refusing a remedy can protect the public, the degree of moral turpitude involved, and whether application of the rule will result in the unjust enrichment of the defendant at the expense of the plaintiff. (Southfield v. Barrett (1970) 13 Cal.App.3d 290, 294 (Southfield); Tri-Q, Inc., at pp. 218-220.) Thus, even when a contract is found to be illegal, in compelling cases it may be enforced to "avoid unjust enrichment to a defendant and a disproportionately harsh penalty upon the plaintiff." (Southfield, at p. 294; Asdourian v. Araj (1985) 38 Cal.3d 276, 292; see also Bus. & Prof. Code, § 7031.) We turn to an analysis of the current claim as alleged in the charging pleading.
As we have discussed, the oral contract in this case provided that Kyablue would advance money to Watkins that could only be used as specifically authorized for certain expenses and for participation in poker games. Utilization of the funds was further restricted to legal gambling. Beyond that, Watkins was required to follow Kyablue's strategy in the poker games. The agreement also provided that Kyablue could call the agreement off at any time, in which case Watkins was obligated to return all funds to Kyablue that were not spent according to the terms of the agreement. In determining the level and degree of illegality involved, we begin with the relevant public policy potentially contravened. In this case, it is California's policy against gambling itself rather than against specific manifestations of gambling, such as enforcement of debts or recovery of losses. ...