Judge Daniel M. Crowley, Case Number: 24STCV13036, Date: 2024-10-07 Tentative Ruling

Defendant Mostafa Salah Sobhi’s demurrer to Plaintiff Mary Abassian’s complaint is sustained as to the 5th and 8th causes of action with 20 days leave to amend and overruled as to the entire Complaint and the 1st, 2nd, and 3rd causes of action.

Defendant Mostafa Salah Sobhi (“Sobhi”) (“Defendant”) demurs to Plaintiff Mary Abassian’s (“Abassian”) (“Plaintiff”) complaint (“Complaint”) on the grounds that pursuant to C.C.P. §430.10(e), Plaintiff’s 1st through 8th causes of action fail to state sufficient facts to constitute causes of action. (Notice of Demurrer, pg. 1.) Defendant also demurs on the basis the causes of action are uncertain. (Notice of Demurrer, pg. 1; C.C.P. §430.10(f).)

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.)

Defendant’s counsel declares that on July 11, 2024, the parties met and conferred telephonically, and the parties were unable to reach an agreement. (See Decl. of Hermes ¶¶2-3.) Defendant’s counsel’s declaration is sufficient under C.C.P. §430.41. Accordingly, the Court will consider Defendant’s demurrer.

The Court also notes, in response to Defendant’s counsel’s comment in paragraph 2 of his declaration,[1] that the statute intends for parties to meet and confer in real time in favor of finding an immediate resolution to disputes outside of court. Letter writing does not constitute either meeting or conferring, but merely corresponding.

Plaintiff filed her operative Complaint on May 23, 2024, against Defendant alleging eight causes of action: (1) specific performance or damages based upon breach of contract; (2) constructive trust based on breach of contract; (3) constructive trust or damages based on breach of implied in fact contract; (4) declaratory relief; (5) fraud and deceit; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) partition.

Defendant filed the instant demurrer on July 18, 2024. Plaintiff filed her opposition on September 24, 2024. As of the date of this hearing no reply has been filed.

Defendant demurs to the 5th cause of action as improperly pleaded and on the basis the facts pleaded are duplicative of the same set of facts in the three breach of contract causes of action, simultaneously, which is improper and which suffers the same uncertainty and vagueness based on the reference and incorporation of the paragraphs in the 1st, 2nd and 3rd causes of action into the 5th Cause of Action. (Demurrer, pg. 2.)

Defendant demurs to the 1st, 2nd and 3rd causes of action on the basis they include a reference to a contract that has terms not sufficiently disclosed or identified, except for boilerplate allegations that are not sufficiently identified in actual real time factual context to support such causes of action. (Demurrer, pg. 2; C.C.P. §430.10(f).)

Defendant demurs to the 8th cause of action on the basis its allegations are uncertain, unclear, and fail to state sufficient facts to constitute a cause of action, and the Complaint is not verified. (Demurrer, pg. 2.) Additionally, Defendant demurs on the basis the 8th cause of action fails to comply with the specific pleading requirements set forth in C.C.P. §872.230. (Demurrer, pg. 2.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

A cause of action for breach of contract requires the following elements: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage to plaintiff. (Reichert v. General Insurance Co. (1968) 68 Cal.2d 822, 830; Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.)

Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.] A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) That plaintiff could not allege with specificity the exact terms of the contract does not preclude statement of a cause of action. (Id.)

The California Supreme Court in Marvin v. Marvin stated that adults who voluntarily live together “may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner’s earnings and the property acquired from those earnings remains the separate property of the earning partner. So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.” (Marvin v. Marvin (1976) 18 Cal.3d 660, 674.)

Plaintiff alleges that in or about November 2015, she and Defendant met and soon thereafter entered into an oral agreement wherein Defendant agreed that during the time that the parties maintained their relationship the Defendant would combine his skills, efforts, labor and earnings and would share equally with Plaintiff any and all property acquired and accumulated as a result of his skills, efforts, labor and earnings, said agreement to be performed wherever the parties were situated. (Complaint ¶6.)

Plaintiff alleges she and Defendant agreed they would hold themselves out to the general public as husband and wife, and Plaintiff would further render services, which included but was not limited to a nurse, confidante, companion, homemaker, housekeeper, cook, social- companion and advisor to Defendant. (Complaint ¶6a.)

Plaintiff alleges it was agreed that Defendant would then and thereafter provide for all Plaintiff’s financial support and need for the rest of her life in the same style and manner that was established during the parties’ relationship consistent with Defendant’s annual earnings and accumulations, that Defendant would provide finances for the benefit of Plaintiff, and that Plaintiff and Defendant would be married. (Complaint ¶7.)

Plaintiff alleges that pursuant to, in confirmation of, and in reliance upon the said agreement, Plaintiff and Defendant maintained relationship from in or about June 1, 2015, through in or about March 2, 2024. (Complaint ¶8.) Plaintiff alleges that throughout said relationship, said agreement between Plaintiff and Defendant was reaffirmed and ratified by the parties. (Complaint ¶8.) Plaintiff alleges she has at all times performed each and every covenant and condition by her to be performed and rendered services and contributed her skills, efforts, and labor as required by the terms of the agreement. (Complaint ¶9.)

Plaintiff alleges that during the time that Plaintiff and Defendant maintained this relationship together, Defendant acquired as a result of his skills, efforts, labor and earnings, personal and real property, hereinafter referred to as “Equitable Property,” the exact nature and-extent of which is presently unknown to Plaintiff, Plaintiff will seek leave to amend this Complaint upon ascertaining the same. (Complaint ¶10.)

Plaintiff alleges that on or about March 2, 2024, Defendant repudiated his agreement with Plaintiff in Sherman Oaks, California, by failing to perform his part of the Agreement, and ever since Defendant has threatened and continues to threaten to cease providing further support and maintenance to Plaintiff. (Complaint ¶¶11, 12.)

Plaintiff alleges the above-referenced services of Plaintiff performed for Defendant and the contribution of Plaintiff’s skills, efforts, and labor under and pursuant to said agreement were and are adequate consideration for the equal ownership interest in said property, earnings and accumulations, the providing of promised finances by Defendant for Plaintiff, and the said lifetime support that Defendant agreed to furnish and provide to Plaintiff thereunder; and said agreement was and is just fair, reasonable and equitable in all respects. (Complaint ¶13.)

Plaintiff alleges that as a result thereof all of said Equitable Property is either in Defendant’s possession, held in his name, and under his control. (Complaint ¶14.) Plaintiff alleges she has demanded that Defendant recognize Plaintiff’s said interest in the Property, earnings and accumulations referred to herein above; however, Defendant has refused to do so contrary to the terms and provisions of said agreement. (Complaint ¶14.)

Plaintiff alleges Defendant has received and will continue to receive during the pendency of this action, rents, issues, royalties and profits from said property in an amount of which Plaintiff is uncertain and cannot ascertain without an accounting from Defendant, an undivided 50% of which belongs solely and exclusively to Plaintiff. (Complaint ¶15.)

Plaintiff alleges the aforesaid Equitable Property standing in Defendant’s name, but acquired by Plaintiff pursuant to the aforesaid agreement, is unique in character in that there exists no other real or other properties substantially similar thereto; and as a result of Defendant’s breach of the aforesaid agreement, Plaintiff has no plain, speedy or adequate remedy in the ordinary course of law, and damages equal to one-half the fair market value of all property, earnings and accumulations of Plaintiff and Defendant will be inadequate to compensate Plaintiff for the detriment suffered by him. (Complaint ¶17.)

Plaintiff sufficiently states a cause of action for breach of contract in her 1st cause of action that is duplicated in the 2nd and 3rd causes of action to seek alternative remedies. A demurrer is not the proper procedure to address these defects in Plaintiff’s Complaint; substantive defects in a portion of the complaint can be challenged by a motion to strike. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167, disapproved on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 C5th 905, 948.)

A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury, 14 Cal.App.4th at pg. 616.) That Plaintiff could not allege with specificity the exact terms of the contract does not preclude statement of a cause of action. (Id.)

Here, Plaintiff’s allegations are not so uncertain that Defendant cannot reasonably respond—i.e., he cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. (Id.)

Accordingly, Defendant’s demurrer to the 1st, 2nd, and 3rd causes of action on the basis of uncertainty is overruled.

A cause of action for fraud requires the following elements: (1) a misrepresentation; (2) knowledge of falsity (or “scienter”); (3) intent to defraud (induce reliance); (4) justifiable reliance; and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) 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. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiff alleges at the times Defendant made the promises, as well as the time that Defendant reaffirmed and ratified said promises to Plaintiff as alleged above, he expressly and impliedly represented to her that there existed in his then present state of mind an intention to keep the said promises. (Complaint ¶42.)

Plaintiff alleges the said representations were false, and each time Defendant made them, he knew they were false. (Complaint ¶43.)

Plaintiff alleges that at the times Defendant made the promises, as well as the time said representations, and at the times of the reliance by Plaintiff, as herein alleged Plaintiff believed that the said representations were true. (Complaint ¶44.)

Plaintiff alleges that at all times herein mentioned, Defendant intended to defraud and deceive Plaintiff by causing her to act to her detriment in reliance upon her said belief in the truth of Defendant's said representations. (Complaint ¶45.) Plaintiff alleges that in reasonable reliance upon her belief in the truth of Defendant’s said representations, she acted as follows: (a) she allowed Defendant to hold her out and she also held herself out as his wife, and she traveled with Defendant as his wife; (b) she acted as Defendant’s homemaker, companion and confidante during those years, and entertained their friends, family and business associates, and provided him with emotional support; (c) she devoted all aspects of her life to Defendant’s need, interest, and well-being to the exclusion of her own making herself available to Defendant seven days a week, 24 hours a day; and (d) she assisted Defendant in various business decisions and acted as his personal and business advisor. (Complaint ¶46.)

Plaintiff alleges were it not for her said trust and confidence in Defendant as a fiduciary, and her said reliance upon, and belief in the truth of his said representations, Plaintiff would not have acted as hereinabove alleged. (Complaint ¶47.)

Plaintiff alleges she has suffered damages measured by the dollar amount of the loss of the benefit of her bargain: the properties and financial support she would have received from Defendant if he had kept his said promise. (Complaint ¶48.)

Plaintiff fails to allege facts showing how, when, where, to whom, and by what means the alleged fraudulent representations were made. (Lazar, 12 Cal.4th at pg. 645.) Plaintiff fails to allege with specificity Defendant’s fraudulent intent.

Accordingly, Defendant’s demurrer to Plaintiff’s 5th cause of action is sustained with 20 days leave to amend.

A cause of action for partition requires: (1) a property description; (2) plaintiff’s property interests; (3) other persons’ claimed interests in the property that plaintiff reasonably believes the action will materially affect; (4) the estate for partitioning and a prayer for partitioning those interests; and (5) facts justifying any sought sale of the property. (C.C.P. §872.230.)

Plaintiff alleges Plaintiff and Defendant are each holding an undivided one-half interest as tenants in common in the above-described property. (Complaint ¶63.)

Plaintiff alleges this action is brought and partition is being sought herein for the common benefit of the parties, to preserve and secure to each of them his or her respective interests and rights in the property, and Plaintiff has received and will incur, costs of partition herein, including reasonable attorneys’ fees, for the common benefit of the parties hereto in an amount not yet ascertainable. (Complaint ¶64.)

Defendant demurs to Plaintiff’s 8th cause of action on the basis it is unverified. Defendant does not cite legal authority in support of this proposition. Further, a demurrer is not the proper procedure to address these defects in Plaintiff’s Complaint; substantive defects in a portion of the complaint can be challenged by a motion to strike. (Daniels, 246 Cal.App.4th at pg. 1167.)[2]

Nonetheless, Plaintiff fails to allege a property description. (C.C.P. §872.230.) Plaintiff alleges the street address of the property in her Prayer. However, Plaintiff must allege the description shall include both the legal description of the Property and its street address or common designation, if any. (C.C.P. §872.230(a).)

Accordingly, Defendant’s demurrer to Plaintiff’s 8th cause of action is sustained with 20 days leave to amend.

Defendant’s demurrer to Plaintiff’s 5th and 8th causes of action is sustained with 20 days leave to amend, and overruled as to the entire Complaint and 1st, 2nd, and 3rd causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] “Pursuant to California Code of Civil Procedure Section 430.41, which mandates a meet and confer in person, by telephone, or by video conference, curiously not [by] email or letter, to determine whether an agreement can be reached that would resolve the objections to be raised in the Demurrer, to be filed by Defendant in this matter.” (Decl. of Hermes ¶2, emphasis added.)

[2] The Court notes Defendant also combines multiple causes of action and bases for demurrers in each section of its motion. The format of Defendant’s demurrer is procedurally improper; Defendant is advised to review CRC Rule 3.1320(a) and related secondary sources, such as the Rutter Guide: Civil Procedure Before Trial.