Judge: Joel R Wohlfeil, Case: 37-2024-00010368-CU-BC-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2024-00010368-CU-BC-CTL YUNG VS BOGHAIRI [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/08/2024

1. The Demurrer (ROA # 16) of Defendants Anoush Boghairi, Cyrus Boghairi, Anoush and Azam Boghairi Family Revocable Trust, and In Re Estate of Katherine Yung ('Defendants') to the Complaint filed by Plaintiff Moo Siu Yung ('Plaintiff'), is OVERRULED IN PART and SUSTAINED IN PART.

As a preliminary matter, Plaintiff concedes that the Demurrer by Defendant A&AFRT should be sustained without leave to amend on the ground of misjoinder.

The Demurrer to the first cause of action for breach of contract is sustained without leave to amend.

Defendants contend that the alleged oral agreement between Plaintiff and her deceased daughter, Katherine, and Cyrus is subject to the statute of frauds. More specifically, Plaintiff alleges that she gave Katherine and Cyrus $260,000.00 to use as a downpayment in order to purchase property located at 10662 Challenge Blvd., La Mesa, CA. (Complaint, ¶¶13 - 18.) As part of that agreement, the parties agreed that Plaintiff would be added to the title in order to secure payment of the down payment. (Id., at ¶16.) An agreement for the sale of real property or an interest in real property comes within the statute of frauds. (Civ. Code 1624, subd. (a)(3). (Secrest v. Sec. Nat'l Mortg. Loan Tr. 2002-2 (2008) 167 Cal. App. 4th 544, 552.) In addition, '[a]n agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds.' (Id., at p. 553; Civ. Code 1698(a); Collins v. Marvel Land Co. (1970) 13 Cal. App. 3d 34, 43.) 'A modification of a contract is a change in the obligations of a party by a subsequent mutual agreement of the parties. (1 Witkin, Summary of Cal. Law, supra, Contracts, § 964, p. 1055.).' (Ibid.) Here, the oral agreement between the parties sought to modify the agreement Katherine and Cyrus entered into to purchase real property by seeking to add Plaintiff to the title of the above noted property and is thus fails.

The Demurrer to the second cause of action for intentional interference with a contract is sustained without leave to amend. This claim requires that that there be, among other things, the existence of a valid contract between Plaintiff and a third party. As noted above, the alleged oral contract at issue here between Plaintiff and Katherine and Cyrus is invalid for the reasons stated above. Therefore, this claim fails.

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3112778 CASE NUMBER: CASE TITLE:  YUNG VS BOGHAIRI [IMAGED]  37-2024-00010368-CU-BC-CTL The Demurrer to the third cause of action for money had and received is overruled. Plaintiff alleged that Katherine and Cyrus are indebted to Plaintiff in the sum of $260,000.00 for the benefit of Plaintiff.

(Complaint, ¶61.) The alleged benefit Plaintiff would have gotten for the loan was interest to be paid by the couple to Plaintiff. (Id., at ¶14.) This is sufficient.

The Demurrer to the Complaint as to Cyrus on the ground of misjoinder is overruled. Contrary to Defendants' contention, Plaintiff did allege wrongdoing on Cyrus' part. More specifically, Plaintiff alleged that Cyrus obtained funds for the purchase of property but failed to repay the loaned funds and added his father, Anoush, to title rather than Plaintiff.

_____ 2. Defendants' Motion (ROA # 20) to strike portions of Plaintiff's Complaint, is GRANTED IN PART and MOOT IN PART.

As a preliminary matter, Plaintiff concedes that Defendants' Motion with respect to attorney fees should be granted. The Court declines to strike Plaintiff's opposition on the ground of timeliness.

The Motion is moot as to the requests for punitive damages, constructive trust and injunctive relief since the Court has sustained the second cause of action without leave to amend.

Defendants are directed to file and serve their Answer by May 17, 2024.

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