Judge: Matthew C. Braner, Case: 37-2019-00055847-CU-FR-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Fraud Demurrer / Motion to Strike 37-2019-00055847-CU-FR-CTL HATAMI TAJIK VS FARASATI [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Pouyan Farsati and Legacy Cruises, LLC's demurrer to the second amended complaint is SUSTAINED.

The motion for sanctions is OFF-CALENDAR, as no motion papers were filed.

As of October 26, 2023, Plaintiff Soheyl Hatamitajik has not filed an opposition to Defendants' motion.

Pursuant to this court's local rules, this failure to respond will be regarded as a concession that Defendants' motion has merit. (See San Diego Superior Court Local Rule 2.1.19, subd. (B).) Defendants' request for judicial notice is granted.

A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Where an amended pleading attempts to remove detrimental facts alleged in a prior pleading, 'the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency,' and if he fails to do so, 'the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.' (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) Defendants demur to all six causes of action set forth in the first amended complaint. As to the first cause of action for breach of oral contract, Defendants argue that Plaintiff cannot overcome the statute of frauds, as it was necessarily one that could not be completed within a year. (Civ. Code, § 1624, subd.

(a)(1).) The court agrees. The factual allegations in the first amended complaint make clear that Plaintiff knew the contract could not be completed within a year, because he estimated the total cost of the yacht repair to be $500,000 and established an ongoing construction and payment schedule of $10,000 per month.

Accordingly, the demurrer is sustained without leave to amend as to the first cause of action.

Defendants next argue the second, third, and fourth causes of action for common counts are uncertain Calendar No.: Event ID:  TENTATIVE RULINGS

2999416  17 CASE NUMBER: CASE TITLE:  HATAMI TAJIK VS FARASATI [IMAGED]  37-2019-00055847-CU-FR-CTL and therefore subject to demurrer. The court agrees. The quantum meruit claims fail to sufficiently allege the nature of the services performed, that Defendants requested such services, and that Plaintiff performed such services. The quasi-contract claim is deficient because Plaintiff fails to allege with the requisite specificity all essential terms of the quasi-contract.

Accordingly, the demurrer is sustained with leave to amend as to the second, third, and fourth causes of action.

Finally, the fifth and sixth causes of action for slander and fraud are also uncertain. The slander claim fails to allege with specificity the essential elements, and completely fails to adequately allege damages proximately caused by Defendants' conduct. The fraud claim is completely lacking in the kind of factual specificity required for such claims.

Accordingly, the demurrer is sustained with leave to amend as to the fifth and sixth causes of action.

Plaintiff has 30 days from entry of this order to file a third amended complaint.

The minute order is the order of the court.

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2999416  17