TENTATIVE RULING

Calendar:    6

Date:          2/2/2024 

Case No: 23 GDCV01971 Trial Date: None Set 

Case Name: Tarakjian v. Hamadi, et al.

DEMURRER

MOTION TO STRIKE

Moving Party:            Defendants Faycal Alex Hamadi and Dzhamila Keshishyan      

Responding Party: Plaintiff Rafi Tarakjian      

RELIEF REQUESTED:

CAUSES OF ACTION: from Complaint  

1) Fraud v. Hamadi, Minasyan

2) Conspiracy to Defraud v. Hamadi, Minasyan

3) Intentional Misrepresentation v. Hamadi, Minasyan 

4) Breach of Fiduciary Duty v. Minasyan 

5) Breach of Oral Contract v. Hamadi, Keshishyan

6) Unjust Enrichment v. Hamadi, Keshishyan

7) Conversion v. Hamadi, Keshishyan

8) Theft -Receipt of Stolen Property v. Hamadi 

9) NIED v. Hamadi  

SUMMARY OF FACTS:

Plaintiff alleges that defendant Keshishyan introduced plaintiff to her niece, who plaintiff married in 2016, and that defendant Hamadi thereafter cultivated a friendship with plaintiff under the guise of family ties.  

The complaint alleges that in January of 2017, Hamadi and Keshishyan approached plaintiff seeking assistance in purchasing property in Carpinteria, assuring plaintiff the property had a potential to be profitable.  Hamadi requested that he be added to plaintiff’s bank account, which would allow him to demonstrate sufficient funds in reserve, and plaintiff added Hamadi as a co-signer so that Hamadi could qualify for a loan.  Shortly thereafter, Hamidi and Keshishyan sought an additional $65,000 from plaintiff to increase the down payment, with a promise to repay plaintiff within two months after refinancing the house.  Plaintiff loaned Hamadi and Keshishyan the $65,000, and defendants qualified for the loan and the property was purchased in March of 2017.  Despite defendants’ assurances and promises to repay the $65,000 within two months, defendants failed to repay the borrowed funds.  The complaint alleges that beginning in June 2017 and continuing through September 2021, defendants made continued assurances and promises to plaintiff that they intended to repay the loan in its entirety, and that it was their intention to repay plaintiff in full. 

The complaint also alleges that in June of 2017, Hamadi informed plaintiff that he intended to purchase life insurance policies totaling over five million dollars, with the intent to sell the policies after the two-year contestable period.  Hamadi requested that plaintiff pay the insurance premiums for these policies for the first year, with the agreement that Hamadi would pay the premiums for the second year, and thereafter the polices would be sold, and the profits split.  Hamadi also promised to repay the $65,000 debt obligation to plaintiff from the sale of the insurance policies.  In July and December of 2017, Hamadi purchased life insurance policies for his father and mother, and plaintiff began paying the premiums for the policies. 

Plaintiff alleges that to induce plaintiff to assume the obligation of the insurance premium payments, Hamadi arranged a meeting between plaintiff, himself, and the servicing insurance agent, defendant Minasyan, and that during this meeting Minasyan and Hamadi together assured plaintiff that it was a common practice to sell insurance policies after two years, that it was easy to find a willing buyer, and that plaintiff would financially benefit from the sale of the policies.  Plaintiff alleges that at the time, defendants Hamadi and Minasyan knew that the policies would not be sold after a two-year period but conspired to induce plaintiff to pay the premiums to prevent the policies from lapsing. 

At the conclusion of the first year, Hamadi refused to pay the premiums for the policies, leaving plaintiff no choice but to continue making the premium payments to avoid a lapse in coverage.  Hamadi also threatened to not repay plaintiff’s loan and the payments plaintiff had made for the policies if plaintiff chose to discontinue paying the insurance premiums.     

The complaint alleges that while plaintiff continued to make the premium payments, Hamadi refused to sell the policies or repay plaintiff, and that in September of 2021, plaintiff contacted Minasyan and demanded that Hamadi assume the payment obligations.  Hamadi requested an exit plan from Minasyan, and Minasyan agreed to assume Hamadi’s and plaintiff’s rights in the policies, and 30 days after the rights were assigned, repay plaintiff, including 10% interest.  Hamadi refused to sign the agreement and refused to acknowledge his obligation for the insurance premium payments made by plaintiff, in the total sum of $209,697.24. 

Plaintiff alleges that as a result of defendants’ conduct, plaintiff has suffered economic damages in an amount in excess of $274,697.24, plus interest, and that plaintiff has experienced severe emotional distress.  

ANALYSIS:

Demurrer

Procedural

Citation to Unpublished Case Law 

Defendants in both the moving papers and reply cite to several unpublished cases.  

Under CRC Rule 8.1115:

 “(a) Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”

Subdivision (b) states:

“An unpublished opinion may be cited or relied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata or collateral estoppel; or 

(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.” 

Defendants note that some cited cases are unpublished, and at some points note, “noted and not cited as binding precedent per the CRC Rule 8.1115 exception as persuasive.”   This is evidently a reference to subdivision (e) of the Rule, which applies only when review of a published opinion has been granted, while review is pending, where, “unless otherwise ordered by the Supreme Court…, a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only.”  The cases cited are simply unpublished decisions, not published opinions which have been granted review.   

Defendants appear to be intentionally and repeatedly violating the court rule.  The court disregards all citations to unpublished cases.  The court is considering setting an OSC re sanctions for this violation. 

Substantive 

First Cause of Action—Fraud and Third Cause of Action—Intentional Misrepresentation 

Lack of Specificity 

To state a cause of action for fraud, plaintiff must plead the following elements: A false representation, actual or implied, or concealment of a matter-of-fact material to the transaction which defendant had a duty to disclose, or defendant’s promise made without intention to perform; defendant’s knowledge of the falsity; defendant’s intent to deceive; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff.  Pearson v. Norton (1964) 230 Cal.App.2d 1. 

Generally, in a fraud cause of action, a plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation.  Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. 

Defendants argue that the causes of action are not alleged with sufficient specificity.  The first cause of action alleges that Hamadi and Minasyan engaged in fraud in connection with the insurance policy premiums.  The cause of action incorporates previous allegations and alleges that Hamadi promised that plaintiff would sell the insurance policies within a two-year period, that he would split the proceeds, and that he would repay plaintiff all premium payments plaintiff made with interest.  [Complaint, para. 41].  It is also alleged that Hamadi promised to repay the $65,000 he had borrowed from plaintiff for the purchase of the 5157 Ogan Road property in Carpinteria once the policies were sold.  [Complaint, para. 41]. 

It is not alleged in the cause of action when these representations were made, although the general allegations indicate that in June of 2017, Hamadi first informed plaintiff he intended to purchase the life insurance policies.   [Complaint, para. 19].  It is not clearly alleged when the representations and promises themselves were made, and it is also not alleged where they were made, or by what means (orally or in writing) they were made.  The demurrer is sustained with leave to amend to permit plaintiff to allege the cause of action with these specifics. 

The third cause of action for intentional misrepresentation is also based on the alleged false statements made by Hamadi and Minasyan in connection with the insurance policies.  The cause of action also fails to clearly allege when the representations were made, where, or by what means. The cause of action is further insufficient because it alleges that “Hamadi and Minasyan made numerous false statements to Plaintiff,” then lists the statements, but it is not clear which of the defendants made which statement, and it does not appear that both of these parties would have made each of the statements or promises.  The demurrer is sustained with leave to amend to allege these specifics. 

Statute of Limitations 

Defendants argue briefly that the two fraud causes of action are barred by the three-year statute of limitations.  In general, the statute of limitations is mandatory, based on the language of CCP section 312, which provides;

“Civil actions, without exception, can only be commenced within the periods prescribed by this title...unless, where, in special cases, a different limitation is prescribed by statute.”

A demurrer on the ground that a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred.   It is not enough that the complaint might be barred.   Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.  

As to the fraud causes of action, CCP § 338(d) provides that “an action for relief on the ground of fraud or mistake” must be commenced within three years.  CCP § 338(d) provides that in an action for relief on the ground of fraud or mistake, “The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”  

Defendants argue that three years from May 13, 2017 expired on May 13, 2020, but this action was not filed until September 15, 2023. 

This assertion is evidently an argument that the $65,000 loan was allegedly made in March of 2017, and was to be repaid in two months, so by May of 2017, but was not timely repaid.  

The fraud causes of action are primarily based on the representations concerning the insurance policies, which did not occur until after June of 2017, and it is not clearly argued how the pleading specifically alleges a date upon which plaintiff should have become aware that those representations and promises made were false.  Moreover, it is alleged that defendants made continuous reassurances that plaintiff would be repaid, and specifically, that in October of 2020, Hamadi and plaintiff executed a “Transfer of Ownership” document for both insurance policies, making plaintiff a joint co-account holder of the policies.  [Complaint, paras. 18, 28].  

As argued in the opposition, the allegations are consistent with plaintiff’s argument that he was repeatedly assured by defendants that they eventually would make good on their promises.   Plaintiff argues that it was not until October of 2021 that plaintiff realized that Hamadi did not intend to keep his promises regarding the insurance policies, when Hamadi refused to sign the exit agreement which Minasyan had proposed and refused to acknowledge his obligation to plaintiff concerning the insurance premiums.  [Complaint, para. 32].  

Overall, it is not clear from the allegations that the causes of action clearly and affirmatively are time barred, and the demurrer to these causes of action are overruled on this ground. 

Second Cause of Action—Conspiracy to Defraud 

To state a civil conspiracy a pleading must allege a civil wrong (for example, fraud or battery), the formation and operation of the conspiracy, a wrongful act done pursuant to the conspiracy, and resulting damage.  Unruh v. Truck Ins. Exchange (1972) 7 Cal.3d 616, 631, (noted to have been superseded by statute on other grounds in Hendy v. Losse (1991) 54 Cal.3d 723.)     

Defendants argue that there is no valid cause of action in California for a conspiracy to defraud.  Defendants rely on Sui v. Price (2011) 196 Cal.App.4th 933, 941, certified for partial publication, and specifically cite to a section of the opinion which is not certified for publication.  Sui, at 941, footnote ***(“Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of…the entire sections under the following subheadings titled…There is no Cause of Action for Conspiracy to Defraud…”).  

As discussed above, defendants improperly rely on this unpublished authority, and the court cannot consider it.  

Defendants fail to make any clear argument that the cause of action is deficient on grounds other than that there is no such cause of action.  The cause of action appears to be one pursuant to which moving defendant Hamadi is alleged to be responsible for the alleged fraud committed by co-defendant Minasyan.  [Complaint, para. 49].  There is no challenge to the sufficiency of the fraud allegations as to Minasyan.  The complaint alleges that “Hamadi and his insurance agent, Minasyan, conspired, planned and intentionally agreed among themselves to defraud Plaintiff.”  [Complaint, para. 50].   Courts have generally held as sufficient allegations that defendants “conspired together” or “did agree together” as sufficient allegations of the formation and operation of a conspiracy.   See Farr v. Bramblett (1955) 132 Cal.App.2d 36, 47; Greenwood v. Mooradian (1955) 137 Cal.App.2d 532, 535.  These allegations are made here.  The   demurrer to this cause of action accordingly is overruled.  

Fifth Cause of Action—Breach of Oral Contract 

Statute of Limitations 

Defendants argue that the cause of action is barred by the applicable statute of limitations. 

CCP section 339 sub. 1 provides a two-year statute for liability not founded on an instrument in writing:

“Within two years:  1.  An action upon a contract, obligation or liability not founded upon an instrument of writing…” 

As the Second District has recognized, “A cause of action for breach of contract accrues at the time of breach, which then starts the limitations period running.” Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120, citing Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456.  

Defendants argue that the two-month repayment period for each of the three payments made on the loan in February and March of 2017 expired in April and May of 2017, more than six years before the complaint was filed.  

The pleading alleges that the loans were made on specific dates in 2017 and would be repaid within two months of those dates.  [Complaint, para.  70].  The complaint goes on to allege that in June of 2017, defendants “promised and assured Plaintiff that they intended to repay Plaintiff’s loan in its entirety upon the sale of Hamadi’s parents’ life insurance policies,” and that “Beginning September 21, 2021,” defendants “refused to repay Plaintiff’s loan.”  [Complaint, paras. 72, 73].  The cause of action overall, particularly with the incorporated general allegations, does not show with a sufficient degree of certainty that the cause of action is clearly and affirmatively time barred.  The cause of action also sufficiently alleges a separate oral promise, which was not breached until a time within the statutory period.  The demurrer on this ground is overruled. 

Statute of Frauds 

Defendants also briefly argue that the cause of action is barred under the statute of frauds. 

Under Civil Code § 1622:

Sufficiency of Allegations 

To plead a cause of action for breach of contract, plaintiff must plead the following elements: Contract formed, and terms alleged verbatim or according to legal effect; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff.  Walsh v. Standart (1917) 174 Cal. 807.   

Sixth Cause of Action—Unjust Enrichment

Defendants argue that unjust enrichment is not a cause of action, or even a remedy, but a general principle, underlying various legal doctrines and remedies.  Defendants rely on McBride v. Boughton (2004) 123 Cal.App.4th 379, 387, in which the court of appeal observed:

“The first cause of action is labeled as one for “unjust enrichment.” Unjust enrichment is not a cause of action, however, or even a remedy, but rather “ ‘ “a general principle, underlying various legal doctrines and remedies” ’ .... [Citation.] It is synonymous with restitution. [Citation.]” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347.) Unjust enrichment has also been characterized as describing “ ‘the result of a failure to make restitution....’ ” (Dunkin, supra, 82 Cal.App.4th at p. 198, fn. 15, 98 Cal.Rptr.2d 44, quoting Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448, 9 Cal.Rptr.2d 774 (Lauriedale ).)

McBride, at 387. 

The court of appeal in McBride, however, in evaluating whether a demurrer to the cause of action should have been sustained without leave to amend went on to look beyond the unjust enrichment label and evaluate whether the cause of action was an appropriate attempt to plead a cause of action giving rise to restitution.  McBride, at 387-388. 

Defendants also cite Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231, in which the court of appeal, quoting McBride, stated, “Unjust enrichment is not a cause of action,” but also went on to state, “Like the trial court, we will construe the cause of action as a quasi-contract claim seeking restitution.”  Rutherford Holdings, at 231.  

Plaintiff in opposition cites Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726, in which the Second District affirmed a trial court judgment based on a jury verdict in favor of plaintiff, determining:

“Evidence also supported the conclusion that Lectrodryer satisfied the elements for a claim of unjust enrichment: receipt of a benefit and unjust retention of the benefit at the expense of another. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662-1663 [15 Cal.Rptr.2d 173].).”

Lectrodryer, at 726. 

There is some disagreement concerning the existence of such a stand-alone cause of action in California.  In fact, in Wilder v. JP Morgan Chase Bank, NA (2009) 2009 U.S. Lexis  124242, a federal district court criticized the broad holding that such a cause of action is not recognized in California, summarizing the conflicting authorities on this issue as follows:

“Defendant urges the Court to dismiss this claim based on the argument that there is no unjust enrichment cause of action in California as a matter of law.  California courts have provided conflicting direction as to whether a separate cause of action exists for unjust enrichment. Some courts have held as an absolute that no such cause of action exists in California. See Melchor v. New Line Prod., Inc. 106 Cal.App. 4th 779, 793, 131 Cal. Rptr. 2d 347 (Cal. Ct.App. 2003) ("[t]here is no cause of action in California for unjust enrichment"); Jogani v. Superior Court, 165 Cal. App. 4th 901, 911, 81 Cal. Rptr. 3d 503 (Cal. Ct. App. 2004). However, other various courts, including the Ninth Circuit, have held just the opposite. See, e.g., Western Pac. R. Corp. v. Western Pac. R. Co., 206 F.2d 495, 498 (9th Cir. 1953) ("it is of  [14] course true that the California courts, in common with authorities generally, recognize a cause of action based on unjust enrichment"); Gerlinger v.Amazon.com, Inc., 311 F. Supp. 2d 838, 856 (N.D. Cal. 2004) ("[u]nder California law, unjust enrichment is an action in quasi-contract") (citing Paracor Fin. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996)); Nordberg v. Trilegiant Corp., 445 F. Supp. 2d 1082, 1100 (N.D. Cal. 2006) (courts holding that no cause of action for unjust enrichment exists have focused on semantic arguments; cause of action for unjust enrichment can be understood as a proper and valid cause of action for restitution); F.D.I.C. v. Dintino, 167 Cal. App. 4th 333, 346, 84 Cal. Rptr. 3d 38 (Cal. Ct. App. 2008) (upholding unjust enrichment cause of action). The Court finds that the weight of authority indicates that California law recognizes a cause of action for unjust enrichment/restitution.”

Wilder at 124242.

Given the split of authority, and the practice of the courts of appeal in the authorities relied upon by defendants in evaluating an unjust enrichment cause of action as a claim for restitution, this court is reluctant to at the pleading stage sustain a demurrer on the ground the cause of action is not a recognized cause of action, and defer any determination of this issue following the development of actual proof in this matter.  The court accordingly is inclined to overrule the demurrer on this ground but will hear argument with respect to whether plaintiff would prefer to amend the cause of action to more clearly frame the cause of action as a claim seeking restitution.     

Seventh Cause of Action—Conversion

To state a cause of action for conversion, plaintiff must allege the following elements: Ownership, or right to possession of property; wrongful disposition of property right; and damages.  Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355.  

The pleading standards with respect to conversion are ordinarily not particularly strict, and it has long been held that a general allegation that defendants “converted and disposed of the property to their own use,” is sufficient to withstand demurrer.   See Daggett v. Gray (1895) 110 Cal. 169, 171.    

The demurrer also argues that money cannot be the subject of a conversion claim, which is no longer the law.   Pleading requirements now provide that when money is the subject of a conversion, plaintiff must plead that a specific identifiable sum was taken.   See Vu v. California Commerce Club (1997) 58 Cal.App.4th 229, 235.   The pleading here identifies the specific sum, $65,000.  [Complaint, para. 81].  This allegation is sufficient to withstand demurer as to at least one portion of the sums allegedly converted. The demurrer is overruled. 

Statute of Limitations 

As to the claim for conversion, the statute of limitations is three years.  CCP § 338(c).  (“Within three years:… (c)(1) An action for taking, detaining or injuring goods or chattels, including actions for the specific recovery of personal property.”).

As discussed above, the complaint sufficiently alleges that the money was paid by plaintiff voluntarily, but the wrongful act alleged in refusing to repay funds and premiums did not occur until it became clear to plaintiff that defendants would not enter into the exit plan, in 2021.  The pleading does not establish on its face that the cause of action is time-barred, and the demurrer on this ground is overruled. 

Eighth Cause of Action—Receipt of Stolen Property—Penal Code section 496 

Defendants argue that there is no cause of action for theft under Penal Code section 496.  Defendants cite two unpublished cases, which, as discussed above, cannot be considered by the court .  

(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.”

“(c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.”

It accordingly is not correct that there is no civil claim recognized under this statute.   Defendants do not clearly argue how the cause of action is deficient, arguing only that the claim is deficient under each of the “above authorities,” which consist solely of the statute and unpublished opinions.   The demurrer accordingly is overruled. 

Ninth Cause of Action—NIED 

Defendants argue that this cause of action is insufficient, as the cause of action must arise from a different duty owed to plaintiff and must threaten physical injury, not simply damage to property or financial interest. 

 

Negligent infliction of emotional distress requires negligence and severe emotional disturbance.  Marlene F. v. Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.  

The cause of action alleges that in June of 2017, Hamadi and Keshishyan requested the plaintiff co-sign for a vehicle lease, and plaintiff agreed, and that after some time, defendants received a contribution from the vehicle’s manufacturer, and somehow cashed the check payable to plaintiff without his authorization or signature.   [Complaint, paras. 90-91].  Plaintiff alleges that he was severely distressed knowing that his credit and identity could be compromised by Hamadi without his knowledge.  [Complaint, para. 91].  

The cause of action appears to rise from a fiduciary relationship created between the parties as co-signors of the vehicle lease.  This relationship is creating a recognized duty.  The demurrer is overruled on the ground that a sufficient tort duty is not alleged.    

 

Statute of Limitations

Defendants argue that the NIED cause of action is subject to CCP section 335.1, the two-year statute of limitations applicable to negligence claims. 

The cause of action does not affirmatively allege when the payment from the manufacturer was received by defendants, or when plaintiff discovered the situation.   The complaint does not allege a date at all but alleges that “After some time” defendants received the contribution.  [Complaint, para. 91]. It does not appear clearly and affirmatively from the pleading that the cause of action is time-barred.  The demurrer on this ground is overruled. 

Motion to Strike

Causes of Action

Punitive Damages 

Defendants seek to strike the claims for punitive damages.  Civil Code § 3294 authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud or malice.”

Since the demurrer to the first cause of action for fraud and third cause of action for intentional misrepresentation will be sustained with leave to amend, the motion to strike punitive damages as to those causes of action will be deemed moot.  A properly alleged fraud claim will itself support recovery of punitive damages; no allegations of malice or intent to injure are required.   Stevens v. Superior Court (1986, 2nd Dist.) 180 Cal.App.3d 605, 610-611.  

The motion to strike punitive damages in connection with the second cause of action for conspiracy to defraud is denied because the cause of action alleges fraud.   

With respect to the seventh cause of action for conversion, such a cause of action is in the nature of a criminal act, theft, so such a claim ordinarily supports a claim for punitive damages.  See Witkin, Summary of Cal. Law (11th Ed.)  6 Witkin, Torts section 1760 (2023) (“Conversion is a tort that often justifies an award of punitive damages,” citing multiple authorities, including Haigler v. Donnelly (1941) 18 Cal.2d 674, 681).  The motion to strike accordingly is denied. 

 

With respect to the punitive damages sought in connection with the ninth cause of action for NIED, the cause of action is for negligence.  Negligent conduct is not sufficient to support a claim for punitive damages.  The motion to strike the punitive damages claimed in this cause of action accordingly is granted.     

Treble Damages 

Defendants also argue that the treble damages pursuant to Penal Code section 496 (c) should be stricken, as there is no basis for a civil damages claim. 

As set forth above, Penal Code section 496 (c) expressly provides:

“(c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.” 

RULING:

Demurrer to Plaintiff’s Complaint:

The Court notes that defendants in the moving papers as well as the reply cite to several cases which are unpublished opinions, or unpublished portions of a published opinion.   Counsel for defendants is cautioned that the California Rules of Court strictly prohibit the citation in papers of unpublished opinions in circumstances such as those here.  See CRC Rule 8.1115 (“an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”).  The Court is mystified by defendants’ apparent position that such cases can be cited for their persuasive value, as the subject opinions, or portions relied upon, have never been published, and no review has been granted.  The Rule is clear, and the Court will hear argument with respect to whether the Court should issue an Order to Show Cause Re Sanctions against counsel for what appears to be a deliberate violation of the Rules of Court. In any case, counsel is cautioned that further violation of the court rules may result in nonconforming papers not being considered by the Court. 

Demurrer is OVERRULED to the second cause of action for conspiracy to defraud, fifth cause of action for breach of oral contract, sixth cause of action for unjust enrichment, seventh cause of action for conversion, eighth cause of action for receipt of stolen property, and ninth cause of action for NIED. 

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the first cause of action for fraud and the third cause of action for intentional misrepresentation on the ground the causes of action are not alleged with sufficient specificity.  See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation).   It is not clearly alleged in the first cause of action when representations or promises were made, where they were made, or by what means (orally or in writing) they were made.  It is not clearly alleged in the third cause of action when representations or promises were made, where, or by what means, and the cause of action is directed to two separately positioned defendants, and it is not clear which of the defendants made which of the alleged statements or promises.  

Demurrer on all other grounds is OVERRULED. 

Motion to Strike Plaintiff’s Complaint or Portions of It:

Motion is MOOT as to the motion to strike each cause of action, due to the rulings on the demurrer, above. 

Motion to strike punitive damages is MOOT as to the claims for punitive damages in the first and third causes of action in light of the sustaining of the demurrer with leave to amend. 

Motion to strike punitive damages in connection with the second cause of action for conspiracy to commit fraud is DENIED.  

Motion to strike punitive damages in connection with the seventh cause of action for conversion is DENIED. 

Motion to strike punitive damages in connection with the ninth cause of action for NIED is GRANTED WITHOUT LEAVE TO AMEND. 

Thirty days leave to amend, if possible. 

The parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.  

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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