Judge: Mark H. Epstein, Case: 25SMCV00143, Date: 2025-05-12 Tentative Ruling

Case Number: 25SMCV00143    Hearing Date: May 12, 2025    Dept: I

This case involves a demurrer by defendant Gyulnazaryan (defendant).  The complaint is brought by plaintiff against defendant and co-defendant Elias.  Plaintiff alleges that Elias is a scam artist.  He is also plaintiff’s ex-fiance.  According to plaintiff, Elias asked her to loan him $125,000 to help him buy a restaurant from defendant and defendant’s husband and at which Elias claimed he had a position.  He guaranteed plaintiff a full return of the money within 5 days and stated that if the money was not repaid, plaintiff would have an interest in the income from the restaurant and also Elias’s medical practice.  To convince plaintiff to loan him the money, Elias suggested that plaintiff call defendant to confirm what Elias was saying.  Plaintiff alleges that she did so and was able to speak to defendant.  Defendant confirmed that she was selling the restaurant to Elias and that the $125,000 was needed for that purpose.  Based on those statements, plaintiff wired the money.  A few months later, when plaintiff was not repaid, plaintiff communicated with defendant again.  Defendant allegedly confessed that there was no restaurant and never was.  Instead, defendant told plaintiff that Elias was a scam artist and had scammed defendant out of $100,000 earlier.  She allegedly admitted that she had colluded with Elias to convince plaintiff to wire the $125,000 on false pretenses based on Elias’s promise that he would use some of that money to repay defendant. 

Somewhat surprisingly, defendant demurs.  Defendant contends that the complaint is not specific enough.  Yes it is.  Plaintiff alleges the date of the conversation and what was said in substance.  Plaintiff alleges that defendant knew that the statements were false when they were made.  There is a lot more here than in just about any case the court has seen.  And the argument that reliance is not well pled is hard to believe is one an attorney could make with a straight face.  Defendant also claims that there is no constructive fraud because there is no fiduciary duty.  That might well be the case, and the court is not convinced that defendant was a “promoter”, but the constructive fraud aspect here is that statements were made that were misleading without more information.  That is a species of concealment that requires no fiduciary duty.  Defendant also contends that there is no contract due to the statute of frauds.  But here, the contract was fully performed by plaintiff—plaintiff paid over the $125,000.  That is enough.  As to the negligent misrepresentation cause of action, the court agrees that it is hard to see negligence here—it is either a deliberate lie or nothing, most likely.  But plaintiff can plead in the alternative.  The tenth cause of action does not fail.  Plaintiff plainly alleges fraud.  The eleventh cause of action also survives.  The complaint alleges that defendant actually did get the money.  That defendant is not in the caption is of no moment. 

The situation is a bit different as to the remainder.  The court agrees that unjust enrichment is not a standalone cause of action; it is more of a remedy.  The same is true of restitution.  The court will construe those causes of action as being requests for a remedy pursuant to the other causes of action.  Plaintiff concedes the accounting and IIED causes of action as to defendant, so the demurrer will be SUSTAINED WITHOUT LEAVE as to those. 

The court notes that there is a significant question whether the demurrer ought to be overruled on the basis that it is out of time.  The court exercises its discretion to consider the demurrer anyway, but cautions the defense to try not to bring motions unless they have more support.

In all other respects, the demurrer is OVERRULED.  Defendant has 30 days to answer.