Judge: Lee W. Tsao, Case: 23NWCV02364, Date: 2024-08-15 Tentative Ruling
Case Number: 23NWCV02364 Hearing Date: August 15, 2024 Dept: C
HARRIS v. MOUTON
CASE
NO.: 23NWCV02364
HEARING:
08/15/24
#4
II.
Plaintiff/Cross-Defendant
SHAMIKA HARRIS’ unopposed Motion to Compel Defendant RABI JAMIL MOUTON to
Attend, Testify, and Produce Documents at Deposition is GRANTED. Sanctions
are imposed in the amount of $900.00 no later than 30 days from the date of the
Court’s issuance of this Order.
Moving
Party to give Notice.
No
Oppositions filed as of August 13, 2024.
Demurrer
This action
for breach of contract was filed by Plaintiff/Cross-Defendant SHAMIKA HARRIS
(“Cross-Defendant”) on December 12, 2023.
On February
28, 2024, Defendant/Cross-Complainant RABI JAMIL MOUTON (“Cross-Complainant”)
filed the Subject Cross-Complaint (“XC”).
The XC
alleges, in pertinent part: “Cross-Complainant Mouton and Cross Defendant
Harris were the co-owners of real property located at 6202 Ekleson Street,
Lakewood, California 90713 (the ‘Subject Property’)…. In or about early August
2021, the Parties located the Subject Property for sale. Once the parties
agreed that the Subject Property was suitable for purchase as an investment
device, the Parties, utilizing standardized C.A.R. forms and a real estate
agent, made an offer to purchase the Subject Property and an agreed-upon
purchase price was ultimately achieved for the Parties to jointly purchase the
Subject Property from the Seller.” (XC ¶1.) “Cross-Complainant never entered
into a written agreement with Cross-Defendant concerning the disposition of the
Subject Property and to the contrary, expected to hold the Subject Property for
a period of time to realize a significant return on the investment that could
only occur with the passage of time given market conditions and the insistence
of Ms. Harris…. Mr. Mouton vigorously denies that any such document proffered
by Ms. Harris and purporting to function as an ostensible ‘agreement’ to
memorialize an exit strategy of the Parties’ real estate investment embodied by
the Subject Property actually exists and therefore, is not capable of being
authenticated, is inadmissible, legally insufficient, unconscionable and
relevant only as corroboration of Cross-Defendant Harris’ lack of credibility
and probative of her misrepresentations.” (XC ¶2.)
The XC
asserts the following causes of action:
(1)
Breach of Contract;
(2)
Intentional Misrepresentation;
(3)
Negligent Misrepresentation;
(4)
Declaratory Relief;
(5)
Breach of Fiduciary Duty;
(6)
Unjust Enrichment
Cross-Defendant
specially and generally demurs to the first, second, third, and fifth causes of
action of the Cross-Complaint.
First Cause of Action – Breach of Contract
Whether it
is written, oral, or implied, the elements of a cause of action for breach of
contract are as follows: (1) the existence of a contract; (2) Plaintiff’s
performance or excused non-performance; (3) Defendants’ breach; and (4)
resulting damage to Plaintiff. (Reichert v. General Ins. Co. (1968) 68
Cal.2d 822, 830.) “If an action is based on a breach
of written contract, the terms must be set forth verbatim in the body of the
complaint or a copy of the contract must be attached and incorporated by
reference.” (Id. at 459.) Alternatively, if the claim is based on a written
contract, then “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, 198-199.) Terms of an oral
contract may be pleaded generally as to its effect, because it is rarely
possible to allege the exact words. (Scolinos v. Kolts (1995) 37
Cal.App.4th 635, 640.)
Plaintiff’s
allegations are insufficient to plead the existence of an oral contract—either
the terms or the legal effect of the contract must be alleged. Here, Plaintiff
fails to allege the legal effect and terms of the alleged contract between the
parties, including obligations the alleged contract imposed upon the parties. The
terms and purported breach are unclear.
Cross-Defendant
further argues that this claim, if based on an oral agreement, would be barred
by the statute of frauds. “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. Security National Morg. Loan Trust 2002-2 (2008)
167 Cal.App.4th 544, 552.) However, equitable estoppel may preclude the use of
a statute of frauds defense. (Byrne v. Laura
(1997) 52 Cal.App.4th 1054, 1068.) Equitable estoppel applies “where an
unconscionable injury would result from denying enforcement after one party has
been induced to make a serious change of position in reliance on the contract
or where unjust enrichment would result of the party who has received the
benefits of the other’s performance where allowed to invoke the statute.” (Chavez
v. Indymac Mortgage Svcs. (2013) 219 Cal.App.4th 1052, 1058.) Here, this
cause of action concerns interests in real property. The facts, as alleged, are
insufficient to show that equitable estoppel prohibits Cross-Defendant from
asserting the statute of frauds as a defense.
The
unopposed demurrer to the first cause of action is SUSTAINED without leave to
amend.
Second and Third Causes of Action – Intentional
Misrepresentation and Negligent Misrepresentation
The
elements of a cause of action for intentional misrepresentation are 1)
misrepresentation (false representation, concealment, or nondisclosure); 2)
knowledge of falsity (scienter); 3) intent to defraud or induce reliance; 4)
justifiable reliance; and 5) damages. (See Cal. Civ. Code §1709.)
“The
elements of negligent misrepresentation are (1) the misrepresentation of a past
or existing material fact, (2) without reasonable ground for believing it to be
true, (3) with intent to induce another’s reliance on the fact misrepresented,
(4) justifiable reliance on the misrepresentation, and (5) resulting damage….
[T]he allegations of reliance, must be specifically pleaded.” (National
Union Fire Ins. Cor. Of Pittsburgh, PA v. Cambridge Integrated Services Group,
Inc. (2009) 171 Cal.App.4th 35, 50.)
Whether
intentional or negligent in nature, fraud actions are subject to strict
requirements of particularity in pleading. (Committee on Children’s
Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) “Fraud
must be pleaded with specificity… [t]o withstand a demurrer, the facts
constituting every element of the fraud must be alleged with particularity, and
the claim cannot be salvaged by references to the general policy favoring the
liberal construction of pleadings. (Goldrich v. Natural Y Surgical
Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) “This particularity
requirement necessitates pleading facts which ‘show how, when, where, to whom,
and by what means the representations were tendered.’” (Stansfield v.
Starkey (1990) 220 Cal.App.3d 59, 73.) “The requirement of specificity in a
fraud action against a corporation requires the plaintiff to allege the names
of the persons who made the allegedly fraudulent representations, their
authority to speak, to whom they spoke, what they said or wrote, and when it
was said or written.” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2
Cal.App.4th 153, 157.)
As argued
in the Demurrer, Cross-Complainant fails to allege how, when, or where any
alleged misrepresentations were made. (See XC ¶22.) This cause of action must
be pled with specificity. General allegations do not suffice.
The
unopposed Demurrer to the second and third causes of action is SUSTAINED
without leave to amend.
Fifth Cause of Action – Breach of Fiduciary Duty
“The
elements of a claim for breach of fiduciary duty are (1) the existence of a
fiduciary relationship, (2) its breach , and (3) damage proximately caused by
that breach. [Citations Omitted.]” (Mendoza v. Continental Sales Co.
(2006) 140 Cal.App.4th 1395, 1405.)
Cross-Complainant
does not allege the existence of any legally recognizable fiduciary
relationship between the parties. The unopposed demurrer to this claim is
SUSTAINED without leave to amend.
Motion to
Compel Deposition
No trial
date has been set. Defendant RABI JAMIL MOUTON is ORDERED to appear for a deposition by no later than 30 calendar
days from the date of the issuance of this Order. The date may be extended by
agreement of the parties.
A party may
obtain discovery by taking oral depositions. (CCP §2025.010.) CCP §2025.450,
which governs motions to compel deposition, provides that “[i]f, after service
of a deposition notice, a party to the action…without having served a valid
objection under §2025.410, fails to appear for examination…the party giving the
notice may move for an order compelling the deponent’s attendance and
testimony.” (CCP §2025.450(a).)
This Motion
is unopposed.
The Court
finds that Plaintiff adequately complied with the meet and confer requirement.
The motion
is GRANTED. Plaintiff is entitled to take Defendant’s deposition.
If [the]
motion is granted, the court shall impose a monetary sanction…in favor of the
party who noticed the deposition and against the deponent or the party with
whom the deponent is affiliated, unless the court finds that the one subject to
the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.” (CCP §2025.450(g)(2).)
Reasonable
sanctions in favor of Plaintiff are granted as requested as follows: Defendant
and Defendant’s counsel are ORDERED to pay Plaintiff and Plaintiff’s counsel
reasonable sanctions in the amount of $900.00 no
later than 30 days from the date of the Court’s issuance of this Order.
This date may be extended by agreement of the parties.