Judge: Michael P. Linfield, Case: 22STCV15352, Date: 2022-12-21 Tentative Ruling

Case Number: 22STCV15352    Hearing Date: December 21, 2022    Dept: 34

SUBJECT:         Demurrer

Moving Party:  Defendant Mohammad Fawaz

Resp. Party:    Plaintiff Rochelle Sterling

Defendant’s Demurrer is SUSTAINED with leave to amend as to the second cause of action. The Demurrer is SUSTAINED without leave to amend as to the fifth cause of action.

BACKGROUND:

On May 9, 2022, Plaintiff Rochelle Sterling, as Trustee of the Sterling Family Trust, filed her Complaint against Mohammad M. Fawaz, a.k.a. Mohammad Moet Fawaz, a.k.a. Moet Fawaz. The causes of action are:

(1)       Conversion;

(2)       Conspiracy to commit conversion or theft;

(3)       Theft or larceny;

(4)       Imposition of constructive trust and/or accounting; and

(5)       Unjust enrichment.

On November 29, 2022, Defendant filed his Demurrer.

On December 8, 2022, Plaintiff filed her Opposition.

On December 12, 2022, Defendant filed his Reply.

ANALYSIS:

I.           Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for the purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

II.        Discussion

Defendant demurs as to the second and fifth causes of action in Plaintiff’s Complaint. (Demurrer, pp. 5:9, 7:4.) Defendant argues that these causes of action are not supported by sufficient facts and are uncertain. (Id.)

A.      Civil Conspiracy

1.       Legal Standard

“The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212.)

“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. By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–11, citations omitted.)

2.       Analysis

Among other things, Plaintiff alleges: (1) that Defendant and the Doe Defendants, knowingly and willfully, agreed among themselves to engage in an unlawful plan and agreement to commit unlawful acts, including but not limited to the conversion, diversion, and concealment of Plaintiff’s monies and/or assets; (2) that Defendant committed wrongful acts, including conversion and theft; and (3) that Plaintiff has been deprived of its property. (Complaint, ¶¶ 23–25, 28, 33–35, 38–42.)

Even assuming as true these allegations for the purposes of the Demurrer, Plaintiff is alleging that the primary tortfeasor is Defendant, not other individuals who did not themselves commit the elements of the other torts alleged. Thus, Plaintiff inappropriately pleads the cause of action for civil conspiracy as to Defendant. Plaintiff may only plead this cause of action as to any currently-fictitiously-named or yet-to-be-named Defendants in this action.

        The Court SUSTAINS with leave to amend the Demurrer as to the second cause of action for civil conspiracy.

B.      Unjust Enrichment

1.       Legal Standard

“Unjust enrichment…is synonymous with restitution.” (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314.) “The elements for a claim of unjust enrichment are ‘receipt of a benefit and unjust retention of the benefit at the expense of another.’” (Prakashpalan v. Engstrom, Lipscomb, & Lack (2014) 223 Cal.App.4th 1105, 1132, quoting Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726.)

“The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Otworth v. S. Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 460.) “The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.

“In addition, as [trial courts have] observed, there is no cause of action in California for unjust enrichment.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.)

2.       Analysis

Plaintiff pleads a cause of action that does not exist in California. While restitution as a remedy may be available later, it is not available as a cause of action.

The Court SUSTAINS without leave to amend the fifth cause of action for unjust enrichment.

III.     Conclusion

Defendant’s Demurrer is SUSTAINED with leave to amend as to the second cause of action. The Demurrer is SUSTAINED without leave to amend as to the fifth cause of action.