Judge Douglas W. Stern, Case 22STCV19363 2022-09-14 Tentative Ruling

Judge: Douglas W. Stern, Case: 22STCV19363, Date: 2022-09-14 Tentative Ruling

Case Number: 22STCV19363 Hearing Date: September 14, 2022 Dept: 52

Tentative Ruling:

Defendants Kamyar Mateen and Shervin Mateen’s Demurrer and Motion to Strike

Demurrer

Defendants Kamyar Mateen and Shervin Mateen demur to plaintiff Dorit Manusevitz’s complaint for failure to state sufficient facts to constitute a cause of action (CCP § 430.10(e)), uncertainty (CCP § 430.10(f)), and for failing to specify whether the contract is written, oral, or implied by conduct (CCP § 430.10(g)).

Timeliness

Plaintiff contends this demurrer is untimely. It was timely filed on July 22, 2022. A demurrer must be filed “within 30 days after service of the complaint.” (CCP § 430.40(a).) As for defendant Shervin Mateen, plaintiff filed proof of service showing substituted service on June 21, 2022, with mailing on June 22. Substituted service “is deemed complete on the 10th day after the mailing.” (CCP § 415.20(b).) Shervin Mateen’s 30-day deadline did not begin until July 2 and did not expire until August 1.

Plaintiff never filed proof of service on defendant Kamyar Mateen. She only filed proof of service on him on behalf of entity defendant CB Chicago—not on his own behalf as an individual. His 30-day period to demur had not yet begun when he filed this demurrer.

Plaintiff also argues she “already applied and got accepted default judgment against” them. (Opp., p. 2.) Though plaintiff requested entry of default on July 21, 2022, the clerk properly rejected that request on July 25.

The Complaint’s Allegations

The complaint makes the following relevant allegations: “Plaintiff Dorit Manusevitz… invested in with CB Chicago in a property located in Canterbury Plaza Illinois… . CB Chicago CEO Kamyar Mateen agreed when entering into the contract to return full investment at request and give full ownership of the title to Plaintiff.” (Comp., ¶ 2.) “However, when Plaintiff asked for the money and property CB Chicago refused to provide either.” (¶ 3.) “Shervin Mateen is a partner CEO and part of agreement as well.” (¶ 4.) “Plaintiff complied with all terms of the contract or was excused by common law the terms of the contract are CB Chicago agrees to give title and money to plaintiff Defendants breached the contract by not giving money and title to Plaintiff.” (¶ 5.)

Written, Oral, or Implied Contract

Plaintiff’s complaint is subject to demurrer because it cannot be ascertained from the complaint whether the contract is written, oral, or implied by conduct. (CCP § 430.10(g).) The complaint repeatedly refers to “the contract” without specifying whether it was written, oral, or implied by conduct. It also alleges, “CB Chicago CEO Kamyar Mateen agreed when entering into the contract.” (Comp., ¶ 2.) This language adds further confusion about the contract’s form. It suggests plaintiff entered a contract with CB Chicago, and Kamyar Mateen also agreed to other terms.

Failure to Allege Sufficient Facts

The complaint alleges a single cause of action for breach of contract. The elements of this cause of action are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff fails to adequately allege the existence of a contract between her and defendants Kamyar Mateen and Shervin Mateen. For an oral contract, a plaintiff may allege its legal effect. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) For a written contract, a plaintiff may plead its legal effect, attach a copy, or plead its terms verbatim. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)

Plaintiff’s complaint does not clearly allege the legal effect of the contract: who agreed to do what. She alleges she “invested in with [sic] CB Chicago in a property,” and CB’s “CEO Kamyar Mateen agreed when entering into the contract to return full investment at request and give full ownership of the title to Plaintiff.” (Comp., ¶ 2.)

The closest the complaint comes to alleging the contract’s legal effect is that “the terms of the contract are CB Chicago agrees to give title and money to plaintiff.” (Comp., ¶ 5.) This vague sentence fails to adequately explain the nature of the contract. It also does not allege that the demurring defendants, Kamyar Mateen and Shervin Mateen, are parties to the contract. The complaint’s only allegation about Shervin Mateen is that he “is a partner CEO and part of agreement as well.” (Comp., ¶ 4.) Assuming the complaint alleged a contract or agreement in the first place, it does not allege what his “part of” it was. The complaint does not allege he promised or agreed to do anything.

Finally, the allegations that “Kamyar Mateen agreed when entering into the contract” (Comp., ¶ 2) and that “Shervin Mateen is … part of agreement as well” (Comp., ¶ 4) suggest that “the contract” with CB Chicago is distinct from any “agreement” with the demurring defendants.

The complaint does not adequately explain the nature of the subject contract or contracts, identify the parties to the contract(s), or allege what the parties agreed to do.

Disposition

Defendants Kamyar Mateen and Shervin Mateen’s demurrer is sustained with 20 days’ leave to amend.

Defendants’ motion to strike is therefore moot.

However, in the event that Plaintiff amends the Complaint and seeks an order to transfer the Illinois property, and assuming that there are further proceeding regarding this claimed remedy, the parties should address the issue of the ability of this Court to grant such relief. “A court of one state cannot directly affect or determine the title to land in another.” (Rozan v. Rozan (1957) 49 Cal.2d 322, 330; accord Hanson v. Denckla (1958) 357 U.S. 235, 246.)