Judge: John J. Kralik, Case: 22BBCV00974, Date: 2023-03-24 Tentative Ruling

Case Number: 22BBCV00974    Hearing Date: March 24, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Ashot Oganesyan (“Plaintiff”) alleges that in August 2021, he was approached by Defendant Artur Kocharyan (“Mr. Kocharyan”), who represented to Plaintiff that he and his wife, Defendant Silva Kocharyan (“Mrs. Kocharyan”), were looking to purchase a home but did not have the amount necessary for a down payment.  Plaintiff alleges that Mr. Kocharyan asked Plaintiff to lend Defendants $30,000 to use as a down payment on the house.  Plaintiff alleges that he agreed to lend $30,000 and Mr. Kocharyan executed a promissory noted detailing the terms of the loan.  The loan term was for 3 months and called for a monthly payment of $3,000 with a balloon payment at the end of the 3 months for the full amount.  Plaintiff alleges that he received $3,000 in August 2021 and $3,000 in September 2021. 

In October 2021, Mr. Kocharyan asked Plaintiff for an additional loan of $15,000 for the down payment, which Plaintiff lent.  Plaintiff alleges he did not receive the monthly payment in November 2021 and requested payment be made in November and December 2021.  Plaintiff alleges that Mr. Kocharyan represented he would make the payments when escrow closed.

Plaintiff alleges that Defendants purchased the property located at 12100 Art Street in Sun Valley and escrow closed on January 19, 2022.  He alleges that the unsuccessfully requested payment from Mr. Kocharyan and that he also contacted Mrs. Kocharyan, but she stated that she was not the one who borrowed money and she did not know the whereabouts of her husband.  Plaintiff seeks the repayment of $45,000 total.

The complaint, filed November 14, 2022, alleges causes of action for: (1) breach of contract against Mr. Kocharyan; (2) fraud against Mr. Kocharyan; (3) money had and received against Defendants; (4) promise made without intention to perform against Mr. Kocharyan; (5) conspiracy against Defendants; and (6) unjust enrichment against Defendants.

B.     Demurrers on Calendar

On December 23, 2022, Artur Kocharyan (a self-represented litigant) filed a demurrer to complaint.  In the same document, he attached a motion to strike.

On December 23, 2022, Silva Kocharyan (a self-represented litigant) filed a demurrer to complaint.  In the same document, she attached a motion to strike.

The Court is not in receipt of an opposition brief.

DISCUSSION RE MR. KOCHARYAN’S DEMURRER

Mr. Kocharyan demurs to the 1^st to 6^th causes of action alleged in the complaint. 

A.    Breach of Contract (1^st cause of action)

The essential elements of a cause of action for breach of contract 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 plaintiff.”  (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) 

Mr. Kocharyan demurs to the 1^st cause of action arguing that there is only an agreement made between Plaintiff and Mr. Kocharyan attached as Exhibit A to the complaint for $30,000 on the first loan, but there is no written agreement attached for the $15,000 loan.

While there is no written agreement attached regarding the second loan for $15,000, Mr. Kocharyan does not appear to dispute that there is a contract for $30,000.  As such, there may be a viable claim for breach of contract on the promissory note for $30,000.  A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.  (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.)  As such, the demurrer to the 1^st cause of action will be overruled.  Mr. Kocharyan’s argument regarding the second loan for $15,000 would have been better addressed in a motion to strike.

The demurrer to the 1^st cause of action is overruled.

B.     Fraud (2^nd cause of action)

To allege a cause of action for fraud, the requisite elements are: (1) a representation, usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation; and (5) damage resulting from that justifiable reliance.  (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.)  This cause of action is a tort of deceit and the facts constituting each element must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings.  (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)  Since the claim must be pleaded with particularity, the cause of action based on misrepresentations must allege facts showing how, when, where, to whom, and by what means the misrepresentations were tendered.  (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

In the 2^nd cause of action, Plaintiff alleges that Mr. Kocharyan made representations with the intent to induce Plaintiff to enter into the note and loan him $45,000.  (Compl., ¶30.)  Plaintiff alleges he was ignorant of Mr. Kocharyan’s intent not to perform and that Mr. Kocharyan knowingly made false representations with the intent to defraud Plaintiff.  (Id., ¶¶31-32.)

The 2^nd cause of action does not allege the fraud claim with the requisite specificity, such as how, when where, to whom, and by what means Mr. Kocharyan allegedly made misrepresentations to Plaintiff.  Based on the allegations of the complaint, it is unclear what misrepresentations Mr. Kocharyan made to Plaintiff or how Plaintiff’s reliance upon the misrepresentation was justified.  As such, the fraud cause of action is not adequately pled.

The demurrer to the 2^nd cause of action is sustained with leave to amend.

C.     Money Had and Received (3^rd cause of action)

A cause of action for money had and received is stated if the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use and benefit of the plaintiff.  (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230.) 

Mr. Kocharyan argues that Plaintiff’s cause of action for money had and received is nothing more than a breach of contract cause of action.  However, Mr. Kocharyan has not cited case law showing that a money had and received claim is mutually exclusive with a breach of contract claim.  As such, the Court will allow this cause of action to remain as Plaintiff may plead alternate theories of liability.

The demurrer to the 3^rd cause of action is overruled.

D.    Promise Made Without Intention to Perform (4^th cause of action)

Promissory fraud is a subspecies of a fraud and deceit claim.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Civ. Code, § 1710(4).)  “A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.”  (Lazar, supra, 12 Cal.4th at 638.)  An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.  (Id.) “[T]o sufficiently allege[] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.”  (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.)  “Each element must be alleged with particularity.”  (Id.)  To plead the first element that the defendant made a promise, the complaint must state facts showing how, when, where, to whom, and by what means the representations were tendered.  (Id.) 

In the 4^th cause of action, Plaintiff alleges that Mr. Kocharyan made promises with no intent to perform.  (Compl., ¶39.)  As discussed above in the demurrer to the fraud cause of action, the nature of the promise/misrepresentation is not provided.  Promissory fraud must be plead with specificity, which has not been met in the complaint’s allegations.

Thus, for the same reasons stated above, the demurrer to the 4^th cause of action is sustained with leave to amend.

E.     Conspiracy (5^th cause of action)

Under California law, conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.  (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.)  A claim for conspiracy must be based on a wrongful act and the claim must allege: (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting.  (Unruh v. Truck Insurance Exchange (1972) 7 Cal. 3d 616, 631.) 

In the 5^th cause of action, Plaintiff alleges that Defendants unlawfully conspired to deprive him of his money by conspiring to engage in acts, including making false statements.  (Compl., ¶45.)  Plaintiff alleges that he was injured as a result of their conspiracy.  (Id., ¶46.) 

Mr. Kocharyan argues that this claim fails because conspiracy is not a cause of action and the complaint fails to allege the nature of the underlying tort committed by Defendants. 

The 5^th cause of action lacks facts to support what type of conspiracy is being alleged.  Alone, “conspiracy” is not a cause of action.  Thus, the demurrer to the 5^th cause of action is sustained.  Plaintiff may have leave to amend this cause of action so that he can allege it together with a viable tort claim.

F.      Unjust Enrichment (6^th cause of action)

Under California law, unjust enrichment is not a cause of action.  (Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 794.)  Instead, it is the failure to make restitution under circumstances where it is equitable to do so.  (Id.)  Unjust enrichment is a general principle, underlying various legal doctrines and remedies, rather than a remedy itself.  (Id.)  It is synonymous with restitution.  (Id.)  This is the basis for the general rule in California, which finds that unjust enrichment is not a cause of action, but a claim for restitution.  (Hill v. Roll Int'l Corp. (2011) 195 Cal. App. 4th 1295, 1307.)
            Therefore, the Court sustains the demurrer to the 6^th cause of action without leave to amend because there is no cause of action for unjust enrichment and it is not possible to correct this by amendment. 

DISCUSSION RE MRS. KOCHARYAN’S DEMURRER

Mrs. Kocharyan demurs to the 1^st to 6^th causes of action alleged in the complaint. 

As an initial matter, the Court notes that the 3^rd, 5^th, and 6^th causes of action are the only causes of action alleged against Mrs. Kocharyan.  Thus, the demurrer to the 1^st, 2^nd, and 4^th causes of action, which are directed against Mr. Kocharyan only, are moot.

A.    Money Had and Received (3^rd cause of action)

Mrs. Kocharyan argues that the complaint only alleges that money was lent to Mr. Kocharyan and not to Mrs. Kocharyan.  She also argues that there are no allegations that she received money for the use of Plaintiff. 

As alleged, the 3^rd cause of action alleges that Defendants became indebted to Plaintiff for $45,000.  (Compl., ¶36.)  However, as pointed out by Mrs. Kocharyan, the complaint lacks facts showing that Defendants received money from Plaintiff for the use and benefit of Plaintiff.

As such, the demurrer to the 3^rd cause of action is sustained with leave to amend.

B.     Conspiracy (5^th cause of action)

The basis of Mrs. Kocharyan’s demurrer to the 5^th cause of action is similar to the argument raised by Mr. Kocharyan in his demurrer to the 5^th cause of action.

For the same reasons stated above, the demurrer to the 5^th cause of action is sustained.  Plaintiff may have leave to amend this cause of action so that he can allege it together with a viable tort claim.

C.     Unjust Enrichment (6^th cause of action)

For the same reasons discussed above regarding Mr. Kocharyan’s demurrer to the 6^th cause of action, the Court sustains Mrs. Kocharyan’s demurrer to the 6^th cause of action without leave to amend.

DISCUSSION RE MOTIONS TO STRIKE

The Kocharyans each filed motions to strike portions of the complaint.  They move to strike portions of the prayer for damages at page 7, Items (i) to (viii) for general damages, compensatory damages, special and consequential damages, statutory damages, punitive and exemplary damages, reasonable attorney’s fees, costs of suit, and other/further relief.

In their memorandum of points and authorities, Defendants argue in conclusory manner that the complaint does not state any facts to warrant general damages, special and consequential damages, reasonable attorney’s fees, and costs.  Defendants do not provide any further arguments other than single-sentence statements that there are no grounds for these types of damages.  There is no analysis on why a motion to strike is appropriate.  Thus, the Court denies the motion to strike these requests for damages in the prayer for damages without prejudice.   

Defendants also argue that the complaint does not support an award for punitive damages because the allegations are lacking.  The Court agrees that the complaint lacks facts or law warranting relief for punitive damages in this case.  As such, the motion is granted with leave to amend as to punitive damages. 

CONCLUSION AND ORDER

            Defendant Artur Kocharyan’s demurrer to the complaint is overruled as to the 1^st and 3^rd causes of action.  The demurrer is sustained with 20 days leave to amend as to the 2^nd, 4^th, and 5^th causes of action.  The demurrer is sustained without leave to amend as to the 6^th cause of action.

Defendant Silva’s Kocharyan’s demurrer to the complaint is moot as to the 1^st, 2^nd, and 4^th causes of action as these causes of action were not directed against her.  The demurrer is sustained with 20 days leave to amend as to the 3^rd and 4^th causes of action.  The demurrer is sustained without leave to amend as to the 6^th cause of action.

            Defendants’ motions to strike are granted with 20 days leave to amend as to the request for punitive damages.  The remainder of the motions to strike are denied.

Defendants shall provide notice of this order.