Judge Ashfaq G. Chowdhury, Case Number: 24GDCV00222, Date: 2024-05-17 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24GDCV00222, Date: 2024-05-17 Tentative Ruling

Case Number: 24GDCV00222 Hearing Date: May 17, 2024 Dept: E

Case No: 24GDCV00222
Hearing Date: 05/17/2024 – 8:30am

Trial Date: UNSET

Case Name: S.A. AEROSPACE, INC., a California corporation; v. FORMIDABLE ENGINEERING TECHNOLOGIES, INC., a California corporation; FOREMOST TECHNOLOGIES AND PRODUCTS, INC., a California corporation; INGA HAKHUMYAN, an individual; LEONID AKHUMYAN, an individual; and DOES 1-20 inclusive

[TENTATIVE RULING DEMURRER AND MOTION TO STRIKE]

RELIEF REQUESTED
“Defendants FORMIDABLE ENGINEERING TECHNOLOGIES, INC., FOREMOST TECHNOLOGIES AND PRODUCTS, INC., INGA HAKHUMYAN, and LEONID HAKHUMYAN will demur to Plaintiff S.A. AEROSPACE, INC.’s Complaint filed in this matter on February 2, 2024.

This Demurrer is based upon this Notice, the Demurrer, the attached Memorandum of Points and Authorities, the Declaration of Tiffany Hyatt Krog, the Request for Judicial Notice, the Complaint on file herein, the pleadings and files contained within the court file in this matter, and such oral and documentary evidence as may be presented at the time of the hearing of this matter.”

(Defs. Dem. p. 2.)

Defendants demur generally and specially to Plaintiff’s Complaint as follows:

“DEMURRER TO FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT

1. Defendant FOREMOST demurs to Plaintiff SAA’s first cause of action for Breach of Contract on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, it is barred by the two year statute of limitations for breach of an oral contract.

DEMURRER TO SECOND CAUSE OF ACTION FOR FRAUD

2. Defendant LEONID demurs to Plaintiff SAA’s second cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege specific facts regarding Defendant LEONID’s alleged March of 2022 representation.

3. Defendant LEONID demurs to Plaintiff SAA’s second cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege any facts that Defendant LEONID’s march of 2022 representation was false at the time it was made.

4. Defendant LEONID demurs to Plaintiff SAA’s second cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, Plaintiff SAA’s fraud claim against Defendant LEONID is barred by the economic loss rule.

5. Defendant LEONID demurs to Plaintiff SAA’s second cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege any facts that Plaintiff SAA’s reliance on Defendant LEONID’s March of 2022 representation was justifiable.

6. Defendant LEONID demurs to Plaintiff SAA’s second cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege facts showing that there is a cause and effect relationship between Defendant LEONID’s alleged March of 2022 representation and Plaintiff SAA’s alleged damages.

DEMURRER TO THIRD CAUSE OF ACTION FOR FRAUD

7. Defendant FORMIDABLE demurs to Plaintiff SAA’s third cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege any misrepresentation by FORMIDABLE, i.e., that FORMIDABLE promised to pay Plaintiff SAA for the ventures and that FORMIDABLE did not pay.

8. Defendants FORMIDABLE and INGA demur to Plaintiff SAA’s third cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, Plaintiff SAA’s fraud claim against INGA and FORMIDABLE is barred because it should have been pleaded in a compulsory cross-complaint in an earlier filed action between the parties.

9. Defendants FORMIDABLE and INGA demur to Plaintiff SAA’s third cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege specific facts regarding Defendant INGA’s alleged July of 2022 representation.

10. Defendants FORMIDABLE and INGA demur to Plaintiff SAA’s third cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, the Complaint fails to allege any facts that Defendant INGA’s July of 2022 representation was false at the time it was made.

11. Defendants FORMIDABLE and INGA demur to Plaintiff SAA’s third cause of action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for same pursuant to Code of Civil Procedure section 430.10, subdivision (e). Specifically, Plaintiff SAA’s fraud claim against Defendants INGA and FORMIDABLE is barred by the economic loss rule.”

(Defs. Dem. p. 3-5.)

BACKGROUND
Plaintiff, S.A. Aerospace, Inc., filed a Complaint on 2/2/2024.

The first cause of action for breach of contract is alleged against Foremost.

The second cause of action for fraud is alleged against Leonid.

The third cause of action for fraud is alleged against Formidable and Hakhumyan.

PROCEDURAL ANALYSIS
Moving Party: Defendants, Formidable Engineering Technologies, Inc.; Foremost Technologies and Products Inc.; Inga Hakhumyan; and Leonid Hakhumyan

Responding Party: Plaintiff, S.A. Aerospace Inc.

Moving Papers: Notice/Demurrer; Proposed Order; Request for Judicial Notice

Opposition Papers: Opposition

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Yes/No – Plaintiff’s counsel’s email address is listed as sammy.zreik@wkzlaw.com on eCourt. The proof of service omits the “@” symbol. However, Plaintiff submitted an Opposition, so Plaintiff appears to have received the instant demurrer.

Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

Here, Defendants’ counsel met and conferred. (See Krog Decl. ¶ 2.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
First Cause of Action – Breach of Oral Contract
The first cause of action alleges a breach of oral contract against Foremost.

Defendants argue this cause of action is barred by the two-year statute of limitations for oral contracts.

To support this argument, Defendants point to ¶ 30 of the Complaint which alleges, “On or about January 2022, Plaintiff completed the designed and manufacture of Product. Plaintiff delivered Product to Foremost who then inspected and approved Product. Plaintiff was then told that payment would be issued by the end of the month. Because the terms and conditions of the oral agreement between Defendants and Plaintiff were fully satisfied corporate defendant Foremost, had an obligation to pay Plaintiff the agreed upon sum of $250,000.00.” (Compl. ¶ 30.)

Defendants argue that this action is barred because it was filed on February 2, 2024, and the statute of limitations expired on January 31, 2024.

Here, the Court finds Defendants’ argument partially availing and partially unavailing.

While Defendants are correct to note that this action would appear to be barred based on the language in ¶ 30, the Opposition points to ¶ 19 in the General Allegations that is incorporated into the first cause of action.

Those allegations read, “On or about February 2022, Plaintiff completed manufacture of Product and delivered Product to Foremost. Product was subsequently inspected and approved by Foremost. Plaintiff was told that payment for Product, in the amount of $250,000.00, would be issued by the end of the month.” (Compl. ¶ 19.)

Thus, Plaintiff argues that the statute of limitations ended on February 28, 2022, and since this action was filed on February 2, 2024, it is thus timely.

To sustain a demurrer based on a statute of limitations defense, the running of the statute must appear “clearly and affirmatively” from the face of the complaint; it is not enough that the complaint may be time-barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th. 32, 42, citing and quoting Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4^th 769, 781.)

Here, although the allegations in ¶ 30 appear to indicate the action would be barred, the Opposition explains that it was a typographical error to write “January” instead of “February” under the first cause of action, and the allegations in ¶ 19 that are incorporated into the first cause of action are what Plaintiff intended to also allege under the first cause of action.

Reply simply argues that the action is still barred and that Plaintiff could have filed an amended complaint.

TENTATIVE RULING – FIRST CAUSE OF ACTION
Defendants’ demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND GRANTED. Plaintiff indicates the typo that it made with respect to the use of the words “January” and “February.” Under the allegations in ¶ 19, which are incorporated into the first cause of action, the breach of oral contract does not appear as if it would necessarily be barred by the two-year statute of limitations.

Second Cause of Action – Fraud
The second cause of action for fraud is alleged against Leonid.

“ ‘The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ “ (Small v. Fritz Companies, Inc. (2003) 30Cal.4th 167, 173 citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

(1) Misrepresentation

Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996)12 Cal.4th 631, 645.)

Here, Plaintiff did not meet the specificity requirements for fraud. It isn’t entirely clear what the misrepresentation is, or misrepresentation(s) are. Generally speaking, based on ¶ 42 and reading the allegations in the second cause of action as a whole, it appears as if the misrepresentation or misrepresentations(s) pertain to a promise to pay. However, ¶ 38 – 41 refer to several representations and promises. It is unclear if this is one single misrepresentation, or several. Further, the specificity requirements of how, when, where, to whom, and by what means the representations were made were not alleged.

Other Elements of Fraud
Defendants also argue that Plaintiff fails to allege: the representation was false at the time it was made, justifiable reliance, and cause and effect.

However, the Court will not rule on these issues because it isn’t entirely clear what the misrepresentation is or are. The Court notes that to the extent that Plaintiff does or does not allege multiple misrepresentations, Plaintiff needs to plead each element of fraud for each specific misrepresentation.

Further, the Court notes that some of Defendants’ arguments appear as if they would likely be unavailing and not appropriate at the pleading stage, such as arguing that Plaintiffs did not plead justifiable reliance. “Justifiable reliance is ordinarily a question of fact that is not properly determined on demurrer, but ‘whether a party’s reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts,’ which facts include consideration of ‘the knowledge, education and experience’ of the person whose reliance is at issue.” (Amiodarone Cases (2022) 84 Cal.App.5th 1091, 1111 citing Guido v. Koopman (1991) 1 Cal.App.4th 837, 843-844.)

Economic-Loss Rule
Defendants argue that the fraud cause of action against Leonid is barred by the economic-loss rule because Plaintiff merely alleges a simple breach of contract, which is not a duty independent of the alleged oral contract between SAA and Defendant Foremost.

Here, the Court finds Defendants’ argument unavailing. The fraud action is alleged against Leonid, an individual, not against Foremost. Plaintiffs are not alleging a breach of contract cause of action against Leonid. Further, although not entirely clear, it appears as if the second cause of action is based on Leonid, the individual, promising to make payment to Plaintiff for Foremost failing to pay on the contract. This alleged fraudulent representation/promise appears to be separate from the contract between Foremost and Plaintiff.

TENTATIVE RULING – SECOND CAUSE OF ACTION
Defendants’ demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND GRANTED. Plaintiffs did not sufficiently plead the specificity requirements for the alleged misrepresentation(s).

Third Cause of Action – Fraud
The third cause of action for fraud is alleged against Formidable and Inga Hakhumyan.

(1) Misrepresentation

Here, it is not entirely clear what the misrepresentation or misrepresentations are. Further, the specificity requirements were not met for both the individual defendant and the corporate defendant. Further, as pointed out by Defendants, there do not appear to be any misrepresentations made by Formidable.

As explained in the analysis for the second cause of action, the Court will not address Defendants’ arguments on whether or not Plaintiff alleged the representation was false at the time it was made.

Economic-Loss Rule
Defendants’ argue that this action is barred by the economic-loss rule because Plaintiff merely alleges a simple breach of contract which is not a duty independent of the alleged oral contract between SAA and Defendant Inga.

The Court does not find this argument availing. The third cause of action for fraud is alleged against Formidable and Hakhumyan, whereas the first cause of action for breach of oral contract is alleged against Foremost.

Compulsory Cross-Complaint
Defendants cite to CCP § 426.30(a) which states, “Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” (Ibid.)

““Related cause of action” means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (CCP § 426.10(c).)

“Since section 426.30 bars claims which the party failed to assert by cross-complaint in a previous action arising from the same occurrence, it necessarily bars issues which were never litigated and never actually decided. Thus, the scope and effect of section 426.30 is analogous to that of res judicata rather than collateral estoppel.” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1157.)

Defendants argue:

Plaintiff SAA’s fraud claim seeks damages of $226,105.00 from INGA and FORMIDABLE based on its allegations that (1) Defendant INGA promised to pay SAA $250,000.00 owed by Defendant FOREMOST if SAA manufactured two VENTURES, (2) the VENTURES were for a joint venture between ASW and FORMIDABLE, (3) SAA billed INGA $226,105.00 for manufacture of the VENTURES, and (4) INGA did not pay SAA $226,105.00 for the VENTURES. (¶¶55 to 57 of Complaint) However, SAA’s fraud claim against INGA and FORMIDABLE in this matter and INGA and FORMIDABLE’s claims1 against SAA in their 2023 Cross-Complaint filed in the ASW ACTION all arose out the same transaction, i.e., the May 5, 2022 joint venture agreement between ASW and Sergik Avakian, on the one hand, and INGA and FORMIDABLE, on the other hand, regarding the two VENTURES. (¶¶21 and 56 of Complaint; ¶26 of Cross-Complaint in ASW ACTION attached as Exh. 1 to Request for Judicial Notice). SAA’s third cause of action for fraud in this matter is a related cause of action to INGA and FORMIDABLE’s claims in the ASW ACTION, it was required to be raised in a compulsory cross-complaint in the ASW ACTION, and it is barred from being raised in this lawsuit under section 426.30(a).

(Defs. Dem. p. 8-9.)

The Opposition does not address whether or not this cause of action should have been alleged as a compulsory cross-complaint in the ASW action.

TENTATIVE RULING – Third Cause of Action for Fraud
Defendants’ demurrer to the third cause of action is at the very least sustained based on the specificity arguments.

As to whether or not leave to amend will be granted, the Court will hear from the parties on the issue of the compulsory-cross-complaint.

As a preliminary matter, Defendants’ argument is not clear as to why Plaintiff’s (S.A. Aerospace, Inc.) claim against Formidable and Hakhumyan should have been raised in the ASW action.

In the ASW action (23BBCV01831), the Plaintiff is Aero Space Works, Inc., and Defendants are Formmidable Engineering Technologies, Inc. and Inga Hakhumyan.

One difference the Court notes is that the Plaintiff in the instant matter is S.A. Aerospace, Inc. and not Aero Space Works, Inc.

It is unclear, but it is possible that Defendants here are basing their argument on the fact that a cross-complaint was filed in the ASW action in which cross-complainants are Formidable and Inga and cross-defendants are Aero Space Works, Sergik Avakian, S.A. Aerospace, Inc., and Sevak Avakian. It is unclear if Defendants in this action are basing their argument on the complaint or the cross-complaint in the ASW action because Defendants here only requested judicial notice of the complaint in the ASW action, not the cross-complaint in the ASW action.

Not only is Defendant’s argument difficult to understand, but the Complaint in this action is also somewhat difficult to understand because it does in fact mention ASW. Further, since Opposition does not address this argument, it is difficult to determine if this argument has any merits.

At the hearing, the Court will expect to hear argument on the issue of whether Plaintiff here should have asserted this cause of action in a compulsory cross-complaint in the ASW action.

Defendants’ request for judicial notice of the Complaint in 23BBCV01831 filed on August 10, 2023 is GRANTED.

MOTION TO STRIKE

Moving Party: Defendants, Formidable Engineering Technologies, Inc.; Foremost Technologies and Products Inc.; Inga Hakhumyan; and Leonid Hakhumyan

Responding Party: No Opposition by Plaintiff

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: No Opposition by Plaintiff

Reply Papers: Krog Declaration re: Non-Receipt of Opposition

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: No - Plaintiff’s counsel’s email address is listed as sammy.zreik@wkzlaw.com on eCourt. The proof of service omits the “@” symbol. Unlike the demurrer, which received opposition, the motion to strike did not receive opposition. At the hearing, Defendants are to address this service issue.

RELIEF REQUESTED
“Defendants FORMIDABLE ENGINEERING TECHNOLOGIES, INC., FOREMOST TECHNOLOGIES AND PRODUCTS, INC., INGA HAKHUMYAN, and LEONID HAKHUMYAN will move for an Order striking the following language from Plaintiff S.A. AEROSPACE, INC.’s Complaint filed in this matter on February 2, 2024:

1. “The aforementioned conduct of Leonid justifies an award of punitive damages. Leonid, throughout the entirety of this process, has voiced fraudulent promises to Plaintiff. Leonid’s verbal representations to Plaintiff regarding payment were the sole reason Plaintiff produced and manufactured Product and did not pursue litigation against Foremost sooner. Said misconduct was despicable and, committed with a complete and total disregard for the rights of Plaintiff, and therefore Plaintiff is entitled to punitive damages in an amount according to proof at time of trial..” (¶52, Lines 4 to 9, Page 10 of the Complaint).

2. “The aforementioned conduct of Hakhumyan justifies an award of punitive damages. Hakhumyan, throughout the entirety of this process, has voiced fraudulent promises to Plaintiff. Hakhumyan’s verbal representations to Plaintiff regarding payment were the sole reason Plaintiff produced and manufactured Ventures. Said misconduct was despicable and, committed with a complete and total disregard for the rights of Plaintiff, and therefore Plaintiff is entitled to punitive damages in an amount according to proof at time of trial.” (¶64, Lines 6 to 11, Page 12 of the Complaint).

3. “For punitive and exemplary damages according to proof at time of trial.” (Line 22, Page 12 of the Complaint)

This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the Declaration of Tiffany Hyatt Krog, the Complaint on file herein, the pleadings and files contained within the court file in this matter, and such oral and documentary evidence as may be presented at the time of the hearing of this matter.”

(Defs. Mot. p. 2-3.)

Meet and Confer

Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP § 435.5(a).)

Here, Defendants’ counsel emailed Plaintiff’s counsel, but Plaintiff’s counsel never responded. (Decl. Krog ¶ 2.)

LEGAL STANDARD – MOTION TO STRIKE
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

Further, CCP §431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(CCP §431.10(a)-(c).)

LEGAL STANDARD – Punitive Damages
In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example by way of punishing the defendant. (Cal. Civ. Code § 3294(a).)

“‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (CCP § 3294(c)(1).)

“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (CCP § 3294(c)(2).)

“‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (CCP §3294(c)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th 1033, 1042.)

Tentative Ruling Motion to Strike
Plaintiff’s counsel’s email address is listed as sammy.zreik@wkzlaw.com on eCourt. The proof of service omits the “@” symbol. Unlike the demurrer, which received opposition, the motion to strike did not receive opposition. At the hearing, Defendants are to address this service issue.

Defendants seek to strike the request for punitive damages in the second cause of action for fraud alleged against Leonid at ¶ 52. The motion to strike ¶ 52 is GRANTED WITH LEAVE TO AMEND because the demurrer to the second cause of action was sustained with leave to amend granted.

Defendants seek to strike the request for punitive damages in the third cause of action for fraud alleged against and Hakhumyan at ¶ 64. [The Court notes that the third cause of action is alleged against Hakhumyan and Formidable, but the request for punitive damages in ¶ 64 appears to only request punitive damages with respect to Hakhumyan.] The motion to strike ¶ 64 is GRANTED. At the hearing, depending upon the arguments regarding compulsory cross-complaints, the Court will determine if leave to amend should be granted.

Defendants’ request to strike ¶ 8 in the Prayer for Relief at line 22 is GRANTED WITH LEAVE TO AMEND considering the fact that at the very least the second cause of action was granted leave to amend.