Judge Kerry Bensinger, Case Number: 24STCV17998, Date: 2025-04-08 Tentative Ruling

On July 17, 2024, plaintiff Madhusudan Thapa Magar (“Plaintiff”) filed a Judicial Council Form Complaint[1] against defendants Dhurba Dhakal (“Dhakal”), Rajendra Singh Thakuri (“Thakuri”), and Dilli R. Thapa (“Thapa”), alleging causes of action for breach of contract and fraud.

According to the Complaint, Plaintiff agreed to pay $28,750 for a 25% ownership share for a business Dhakal and Thakuri misled Plaintiff into believing was valued at $115,000 when in reality it was valued at $50,000. Dhakal and Thakuri represented that all sales taxes and business activities were legal. Thapa represented that he would act as an impartial mediator between Dhakal and Thakuri but instead acquired the business for himself without Plaintiff’s consent to relinquish ownership.

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, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center¿(2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc.¿(2010) 181 Cal.App.4th 471, 556.)¿

Defendant Thapa demurs to each cause of action. The court addresses each in turn.

The elements of a breach of contract cause of action are: (1) the existence of a valid contract between the plaintiff and the defendant, (2) the plaintiff’s performance, (3) the defendant’s unjustified failure to perform, and (4) damages to the plaintiff caused by the defendant’s breach.¿ (CACI No. 303; Careau & Co. v. Security Pacific Business, Inc. (1990) 222 Cal.App.3d 1371, 1388.) “[A] plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) Alternatively, a written contract can be pleaded by attaching a copy to the complaint and incorporating it by reference. (See Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.)

Defendant Thapa argues the breach of contract claim fails because Plaintiff fails to show the existence of a valid contract. The court agrees. Plaintiff has not plead the legal effect of the contract nor its precise language and has not attached a copy of the contract. The court further notes that Plaintiff indicates the parties to the contract are Hussein Alrubave, Dhakal, Thakuri, and Plaintiff. Thapa is not a party to the contract. The First Cause of Action is defective.

Accordingly, the demurrer to the First Cause of Action is SUSTAINED. Leave to Amend is GRANTED.

“The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 (internal citations omitted).) “Fraud must be pleaded with specificity rather than with general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (cleaned up).) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)¿¿

Defendant Thapa argues the Complaint fails to allege the fraud claim with sufficient specificity. The court agrees. Plaintiff alleges that Thapa defrauded Plaintiff between January 2022 to August 2023, and that Thapa made intentional or negligent misrepresentations. These allegations do not make clear when the misrepresentations were made or by what means. The claim is not sufficiently specific to state a fraud claim. Plaintiff, having not filed an opposition, does not present any argument directing a different result.

Accordingly, the demurrer to the Second Cause of Action is SUSTAINED. Leave to amend is GRANTED.

Thapa argues the Complaint also fails for uncertainty. The argument has merit. In addition to the breach of contract and fraud causes of action, Plaintiff also lists the following claims as “other allegations”: Conversion (Deprivation of Property), Illegal Drug Trafficking, Sales Tax Theft (False Reporting), Embezzlement, False Invoicing, Misuse of Corporate Assets, Coercion. These claims are not supported by any factual allegations. It is therefore unclear the nature of Plaintiff’s claims against Thapa. The Complaint is uncertain.

Plaintiff is ordered to serve and file the First Amended Complaint within 30 days of this order.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Plaintiff filed the Complaint as a self-represented litigant. Plaintiff has since retained counsel.