Judge: David A. Rosen, Case: 22GDCV00596, Date: 2023-04-07 Tentative Ruling
Case Number: 22GDCV00596 Hearing Date: April 7, 2023 Dept: E
Hearing Date: 04/07/2023 – 10:00am
Case No. 22GDCV00596
Trial Date: Unset
Case Name: EDVARD AKOPYAN, indiv, and on behalf of DSN Direct Shopping
Network LLC v. GRIGOR SEROPIAN aka GRIGOR SEROPYAN, indiv; MLS TRANSPORTATION
WORLDWIDE LLC; and DOES 1-100
TENTATIVE
RULING DEMURRER & MOTION TO STRIKE TO SAC
Moving Party:
Defendant, MLS Transportation Worldwide, LLC (MLS)
Opposing Party: Plaintiff
Opposition
submitted. No reply submitted.
Moving
Papers: Motion; Proposed Order
Opposition
Papers: Opposition
RELIEF REQUESTED
Defendant, MLS moves the Court to sustain a demurrer to all causes of action as
stated on Plaintiff’s First Amended Complaint (FAC). The demurrer is based on
CCP §430.40 and 430.10 as follows:
1.
Plaintiffs First Amended Complaint in its entirety on the grounds that
Plaintiff’s FAC fails to state facts sufficient to constitute a cause of action
against Defendant MLS under C.C.P. §430.10( e ), and is fatally uncertain under
C.C.P. § 430.1 0(f).
2.
Plaintiffs purported causes of action for (1) Fraud; (2) Intentional
Misrepresentation; (3) Negligent Misrepresentation; and (4) Violation of the
California Consumer Legal Remedies Act, California Civil Code §§ 1750-1784 ail
to state facts sufficient to constitute a cause of action against Defendant MLS
under C.C.P. § 430.l0(e), and are fatally uncertain under C.C.P. § 430.l0(f).
3.
Plaintiffs purported causes of action for (1) Fraud by Wire in Violation of
United states Code Title 18 § 1343, (2) Fraud by Mail in Violation of United
States Code Title 18 § 1341, (3) Vandalism In Violation of California Penal
Code § 594, and (4) Conspiracy in Violation of California Penal Code § 182
cannot be adjudicated based on this court's lack of jurisdiction over criminal
matters under C.C.P. § 430. l0(a), fail to state facts sufficient to constitute
a cause of action against Defendant MLS under C.C.P. § 430.l0(e), are fatally
uncertain under C.C.P. § 430.l0(f).
4.
Plaintiffs purported causes of action for Violation of California Business and
Professions Code§§ 9884.6(a), 9884.8, 16240, 9884.8, 9884.9, 9884.10, 9844.11,
9884.17, 17500 et. seq., and 17200 et. seq. fails to state facts sufficient to
constitute a cause of action against Defendant MLS under C.C.P. § 430.l0(e),
and are fatally uncertain under C.C.P. § 430.10(f).
5.
Plaintiffs purported cause of action for Violation of the California Consumer
Legal Remedies Act, California Civil Code §§ 1750-1784 fails to state facts
sufficient to constitute a cause of action against Defendant MLS under C.C.P. §
430.l0(e), and is fatally uncertain under C.C.P. § 430.10(f).
6.
Plaintiffs purported causes of action for Violation of California Code of
Regulations Title 16 §§ 3356, 3353, 3358, 3351.3(a) and 3371 fail to state
facts sufficient to constitute a cause of action against Defendant MLS under
C.C.P. § 430.l0(e), and are fatally uncertain under C.C.P. § 430.1 0(f).
7.
Plaintiffs purported cause of action for Conversion and Trespass to Chattels
fail to state facts sufficient to constitute a cause of action against
Defendant MLS under C. C.P. § 430.10( e ), and are fatally uncertain under
C.C.P. § 430.lO(f).
8.
Plaintiffs purported causes of action for ( 1) Intentional Interference with
Prospective Economic Advantage and (2) Negligent Interference with Prospective
Economic Advantage fail to state facts sufficient to constitute a cause of
action against Defendant MLS under C. C.P. § 430.10( e ), are fatally uncertain
under C.C.P. § 430.l0(f).
9.
Plaintiffs purported causes of action for (1) Breach of Contract and (2) Breach
of Covenant of Good Faith and Fair Dealings fail to state facts sufficient to
constitute a cause of action against Defendant MLS under C.C.P. § 430.l0(e),
are fatally uncertain under C.C.P. § 430.l0(f).
10.
Plaintiffs purported cause of action for Negligence fails to state facts
sufficient to constitute a cause of action against Defendant MLS under C. C.P.
§ 430.10( e ), and is fatally uncertain under C.C.P. § 430.lO(f).
11.
Plaintiffs purported cause of action for Unjust Enrichment fails to state facts
sufficient to constitute a cause of action against Defendant MLS under C.C.P. §
430.l0(e), and is fatally uncertain under C. C.P. § 430.1 0(f).
12.
Plaintiffs purported cause of action for Civil Conspiracy fails to state facts
sufficient to constitute a cause of action against Defendant MLS under C.C.P. §
430.I0(e), and is fatally uncertain under C. C.P. § 430.1 0(f).
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. (Id., §430.41(a)(4).)
Defendant’s
counsel met and conferred. (See Mate Decl. ¶7-9.)
DEMURRER LEGAL STANDARD
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.) Here, Plaintiff has failed to plead with any
specificity or clarity the elements of any of the causes of action Plaintiff
alleges against Defendant. The Court
notes that Plaintiff filed this FAC, but notes little to no illuminating
differences between the pleadings of the FAC and the original Complaint.
TENTATIVE
RULING
Defendant’s, MLS, general demurrer
to the entire FAC is Sustained with 30 days’ leave to amend, on the grounds
that the Plaintiff did not plead clearly or with specificity the elements of
any cause of action against any Defendants.
MOTION TO STRIKE
Moving Party: Defendant, MLS
Transportation Worldwide, LLC (MLS)
Opposing Party: Plaintiff
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Opposition submitted.
No reply submitted.
Moving Papers: Motion;
Proposed Order
Opposition Papers:
Opposition
RELIEF
REQUESTED
Defendant,
MLS, moves to strike portions of the FAC pursuant to CCP §435 and 436 on the
following grounds:
1.
Plaintiffs Eighteenth Cause of Action for Fraud by Wire in Violation of United States
Civil Code§ 1343, Nineteenth Cause of Action for Fraud by Mail in Violation of
United States Code Title 18 § 1341, Twentieth Cause of Action for Violation of
California Penal Code § 594, and Thirty-Third Cause of Action of California
Penal Code § 182, and all allegations in relation thereto, are improper as this
Court does not have jurisdiction to adjudicate criminal causes of action.
2.
Plaintiffs prayer for punitive damages is false, improper, and immaterial in
that they are conclusory, and no factual allegations exist in the First Amended
Complaint to support a claim for punitive damages.
3.
Plaintiffs prayer for attorney's fees is false, improper, and immaterial in
that Plaintiff is in pro per and is not entitled to attorney's fees.
4.
All exhibits as attached to Plaintiffs FAC are irrelevant and improper. No part
of the FAC refers to the exhibits, which purport only a business card and
screenshots of posts from the social media.
Defendant
MLS moves to strike the following portions of the FAC:
1.
Eighteenth Cause of Action for Fraud by Wire in Violation of United States
Civil Code§ 1343, Pages 60-62, Paragraphs 130-134, in its entirety;
2.
Nineteenth Cause of Action for Fraud by Mail in Violation of United States Code
Title 18 § 1341, Pages 62-63, Paragraphs 135-139, in its entirety;
3.
Twentieth Cause of Action for Violation of California Penal Code§ 594, Pages
64- 65, Paragraphs 140-144, in its entirety;
4.
Thirty-Third Cause of Action of California Penal Code§ 182, Pages 81-83,
Paragraphs 192-196, in its entirety;
5.
Page 32-33 Paragraph 41, in its entirety;
6.
Page 34-35, Paragraph 48, in its entirety;
7.
Page 39-40, Paragraph 63, in its entirety;
8.
Page 40, Paragraph 63, in its entirety;
9.
Page 41, Paragraph 68, in its entirety;
10.
Page 41, Paragraph 69, in its entirety;
11.
Pages 42-43, Paragraph 73, in its entirety;
12.
Page 43, Paragraph 74, in its entirety;
13.
Page 44, Paragraph 78, in its entirety;
14.
Page 44, Paragraph 79, in its entirety;
15.
Page 45-46, Paragraph 83, in its entirety;
16.
Page 46, Paragraph 84, in its entirety;
17.
Page 47, Paragraph 88, in its entirety;
18.
Page 47, Paragraph 89, in its entirety;
19.
Pages 48-49, Paragraph 93, in its entirety;
20.
Page 49, Paragraph 94, in its entirety;
21.
Page 50, Paragraph 98, in its entirety;
22.
Page 50, Paragraph 99, in its entirety;
23.
Pages 51-52, Paragraph 103, in its entirety;
24.
Page 52, Paragraph 104, in its entirety;
25.
Page 53, Paragraph 108, in its entirety;
26.
Page 53, Paragraph 109, in its entirety;
27.
Page 55, Paragraph 113, in its entirety;
28.
Pages 56-57, Paragraph 118, in its entirety;
29.
Page 57, Paragraph 119, in its entirety;
30.
Page 58, Paragraph 123, in its entirety;
31.
Page 58-59, Paragraph 124, in its entirety;
32.
Page 60, Paragraph 128, in its entirety;
33.
Page 60, Paragraph 129, in its entirety;
34.
Pages 61-62, Paragraph 133, in its entirety;
35.
Page 62, Paragraph 134, in its entirety;
36.
Page 63, Paragraph 138, in its entirety;
37.
Page 63, Paragraph 139, in its entirety;
38.
Pages 64-65, Paragraph 143, in its entirety;
39.
Page 65, Paragraph 144, in its entirety;
40.
Page 66, Paragraph 148, in its entirety;
41.
Page 67, Paragraph 152, in its entirety;
42.
Pages 68-69, Paragraph 156, in its entirety;
43.
Page 71, Paragraph 163, in its entirety;
44.
Page 77, Paragraph 182, in its entirety;
45.
Pages 79-80, Paragraph 187, in its entirety;
46.
Page 80, Paragraph 188, in its entirety;
47.
Pages 82-83, Paragraph 195, in its entirety;
48.
Page 83, Paragraph 19, in its entirety;
49.
Pages 83-84, Paragraph 200, in its entirety;
50.
Prayer for Relief, First Cause of Action for Fraud, Paragraph 4;
51.
Prayer for Relief, Second Cause of Action for Intentional Misrepresentation,
Paragraph 4;
52.
Prayer for Relief, Fourth Cause of Action for Violation of the Consumer Legal
Remedies Act, California Civil Code§§ 1750-1784, Paragraph 4;
53.
Prayer for Relief, Fourth Cause of Action for Violation of the Consumer Legal
Remedies Act, California Civil Code§§ 1750-1784, Paragraph 6;
54.
Prayer for Relief, Fifth Cause of Action for Violation of California Business
and Professions Code § 9884.6(a), Paragraph 4;
55.
Prayer for Relief, Fifth Cause of Action for Violation of California Business
and Professions Code § 9884.6(a),
Paragraph 6;
56.
Prayer for Relief, Sixth Cause of Action for Violation of California Business
and Professions Code§ 9884.8(a), Paragraph 4;
57.
Prayer for Relief, Sixth Cause of Action for Violation of California Business
and Professions Code § 9884.8(a), Paragraph 6;
58.
Prayer for Relief, Seventh Cause of Action for Violation of California Business
and & Professions Code§ 16420, Paragraph 4;
59.
Prayer for Relief, Seventh Cause of Action for Violation of California Business
and Professions Code § 16420, Paragraph 6;
60.
Prayer for Relief, Eighth Cause of Action for Violation of California Business
and Professions Code § 9884.8, Paragraph 4;
61.
Prayer for Relief, Eighth Cause of Action for Violation of California Business
and Professions Code § 9884.8, Paragraph 6;
62.
Prayer for Relief, Ninth Cause of Action for Violation of California Code of Regulations
Title 16 § 3356, Paragraph 4;
63.
Prayer for Relief, Ninth Cause of Action for Violation of California Code of Regulations Title 16 § 3356, Paragraph 6;
64.
Prayer for Relief, Tenth Cause of Action for Violation of California Business
and Professions Code § 9884.9, Paragraph
4;
65.
Prayer for Relief, Tenth Cause of Action for Violation of California Business and
Professions Code§ 9884.9, Paragraph 6;
66.
Prayer for Relief, Eleventh Cause of Action for Violation of California Code of
Regulations Title 16 § 3353, Paragraph 4;
67.
Prayer for Relief, Eleventh Cause of Action for Violation of California Code of
Regulations Title 16 § 3353, Paragraph 6;
68.
Prayer for Relief, Twelfth Cause of Action for Violation of California Business
and Professions Code § 9884.10, Paragraph 4;
69.
Prayer for Relief, Twelfth Cause of Action for Violation of California Business
and Professions Code § 9884.10, Paragraph 6;
70.
Prayer for Relief, Thirteenth Cause of Action for Violation of California
Business and Professions Code § 9884.11, Paragraph 4;
71.
Prayer for Relief, Thirteenth Cause of Action for Violation of California
Business and Professions Code § 9884.11, Paragraph 6;
72.
Prayer for Relief, Fourteenth Cause of Action for Violation of California Code
of Regulations Title 16 § 3358, Paragraph 4;
73.
Prayer for Relief, Fourteenth Cause of Action for Violation of California Code
of Regulations Title 16 § 3358,
Paragraph 6;
74.
Prayer for Relief, Fifteenth Cause of Action for Violation of California
Business and Professions Code§ 9884.17, Paragraph
4;
75.
Prayer for Relief, Fifteenth Cause of Action for Violation of California
Business and Professions Code§ 9884.17, Paragraph 6;
76.
Prayer for Relief, Sixteenth Cause of Action for Violation of California Code
of Regulations Title 16 § 3353.l(a), Paragraph 4;
77.
Prayer for Relief, Sixteenth Cause of Action for Violation of California Code
of Regulations Title 16 § 3353.l(a), Paragraph 6;
78.
Prayer for Relief, Seventeenth Cause of Action for Violation of California Code
of Regulations Title 16 § 3371, Paragraph 4;
79.
Prayer for Relief, Seventeenth Cause of Action for Violation of California Code
of Regulations Title 16 § 3371, Paragraph 6;
80.
Prayer for Relief, Eighteenth Cause of Action for Fraud by Wire in Violation of
United States Code Title 18 § 1343, Paragraph 4
81.
Prayer for Relief, Eighteenth Cause of Action for Fraud by Wire in Violation of
United States Code Title 18 § 1343, Paragraph 6;
82.
Prayer for Relief, Nineteenth Cause of Action for Fraud by Mail in Violation
of United States Code Title 18 § 1341,
Paragraph 4;
83.
Prayer for Relief, Nineteenth Cause of Action for Fraud by Mail in Violation
of United States Code Title 18 § 1341,
Paragraph 6;
84.
Prayer for Relief, Twentieth Cause of Action for Vandalism in Violation of
California Penal Code§ 594, Paragraph 4;
85.
Prayer for Relief, Twentieth Cause of Action for Vandalism in Violation of
California Penal Code § 594, Paragraph 6;
86.
Prayer for Relief, Twenty-First Cause of Action for Conversion, Paragraph 4;
87.
Prayer for Relief, Twenty-Second Cause of Trespass to Chattels, Paragraph 4;
88.
Prayer for Relief, Twenty-Third Cause of Action for Intentional Interference
with Prospective Economic Advantage, Paragraph 4;
89.
Prayer for Relief, Twenty-Fifth Cause of Action for Intentional Infliction of Emotional
Distress, Paragraph 4
90.
Prayer for Relief, Thirtieth Cause of Action for False Advertising in Violation
of California Business and Professions Code§ 17500 et. seq., Paragraph 4;
91.
Prayer for Relief, Thirtieth Cause of Action for False Advertising in Violation
of California Business and Professions Code§ 17500 et. seq., Paragraph 6
92.
Prayer for Relief, Thirty-Third Cause of Action for Conspiracy in Violation of
California Penal Code § 182, Paragraph 4;
93.
Prayer for Relief, Thirty-Third Cause of Action for Conspiracy in Violation of
California Penal Code § 182, Paragraph 6;
94.
Prayer for Relief, Thirty-Fourth Cause of Action for Civil Conspiracy,
Paragraph 4;
95.
All exhibits as attached to the FAC.
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).)
Defendant
alleged he met and conferred but an agreement was not reached. (Decl. Mate
¶7-9.)
Motion
to Strike Standard
Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz
(1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the
claim is surplusage; probative facts are surplusage and may be stricken out or
disregarded”].)
TENTATIVE
RULING
Defendant’s
motion to strike is granted in light of the lack of specificity and
uncertainty, as referenced in the Court’s ruling on the accompanying General
Demurrer. 30 days’ leave to amend is granted.