Case Number: 22STCV11519    Hearing Date: April 21, 2023    Dept: 73

Whitfield v. Music Royalty Consulting, Inc., et al. (22STCV11519)

Counsel for Plaintiff/opposing party:    Kevin J. Cole (KJC Law Group, A.P.C.)

Counsel for Defendant/moving party:  Ayo Omotosho and Joy Johnson (Johnson|Omotosho, LLP)

demurrer and motion to strike (filed March 20, 2023)

TENTATIVE RULING

Defendants Parviz Omidvar, Oliver Omidvar, and O’Neal Omidvar’s demurrers are SUSTAINED in their entirety.

Defendant Music Royalty Consulting, Inc.’s demurrer to Plaintiff’s first cause of action for anticipatory breach of contract and second cause of action for breach of the implied covenant of good faith and fair dealing is OVERRULED.

Defendant Music Royalty Consulting, Inc.’s demurrer to Plaintiff’s third cause of action for fraud in the inducement, fourth cause of action for specific performance, and fifth cause of action for declaratory relief is SUSTAINED.

The motion to strike is GRANTED.

Plaintiff granted 10 days leave to amend.

Factual Background

Plaintiff Roland Whitfield brings this contractual fraud action against Defendants Music Royalty Consulting, Inc., Parviz Omidvar, Oliver Omidvar, and O’Neal Omidvar. Plaintiff’s first amended complaint asserts causes of action for: (1) anticipatory breach of contact; (2) breach of implied covenant of good faith and fair dealing; (3) fraud in the inducement; (4) specific performance; and (5) declaratory judgment.

Plaintiff alleges the following:  Defendant Music Royalty Consulting, Inc. (“MRCI”) is 100% owned by Defendant Parviz Omidvar. (FAC, ¶ 3.) Parviz’s two adult sons, Defendants Oliver Omidvar and O’Neal Omidvar, were agents or employees of MRCI. (Ibid.) As heir to the late Billie Rae Calvin (“Songwriter”), Plaintiff had rights to Songwriter’s works and was entitled to the same royalty payments Songwriter received. (Id., ¶¶ 6, 9.) On July 8, 2011, Plaintiff executed an Irrevocable Royalty Purchase Agreement (“Royalty Agreement”) with MRCI, where MRCI paid Plaintiff $250,000.00 for the rights to Songwriter’s works. (Id., ¶ 10.) The Royalty Agreement provided Plaintiff with the option of repurchasing the rights to Songwriter’s works for $1.00, effective 15 years from the date of the Agreement. (Id., ¶ 11.) However, MRCI added a term to the Agreement which purportedly gave MRCI the right to purchase Plaintiff’s buy-back option at any time for $50,000. (Id., ¶ 14.)

Plaintiff intended to execute the $1.00 buy-back option within the period specified by the contract. (Id., ¶ 24.) But, on August 17, 2021, MRCI sent Plaintiff a letter and $50,000 check attempting to exercise their right to purchase Plaintiff’s option—and thus the rights to Songwriter’s works in perpetuity. (Id., ¶ 16.)

Procedural Background

On April 5, 2022, Plaintiff filed his original complaint.

On November 1, 2022, Defendants demurred.

On January 18, 2023, Plaintiff filed a first amended complaint before the demurer was heard.

On March 20, 2023, Defendants demurred to the FAC and moved to strike punitive damages. Defendants also make requests for judicial notice. On April 10, 2023, Plaintiff filed oppositions to the demurrer and motion to strike, and on April 14, 2023, Defendants filed a single reply.

Discussion

In support of its demurrer and motion to strike, Defendants argue:

·                     The assertion in the FAC at paragraph 20 that option contracts are irrevocable under California law is not supported by case law.

·                     Plaintiff’s claims arose over 11 years ago and are thus time barred.

·                     The Royalty Agreement included an unambiguous release of all claims against Defendants—including an explicit acknowledgement of Civil Code section 1542 and a release of all rights under Section 1542 (right to claims not known by Plaintiff at the time of release).

·                     The claims in Plaintiff’s FAC are barred by the sham pleading doctrine. In the original complaint, Plaintiff claimed that the fifteen-year buy-back period was an unenforceable term in the parties’ Agreement. Now, in the FAC, he is seeking to enforce the fifteen-year buy-back period as an “irrevocable option” contract binding on MRCI.

·                     Plaintiff’s claims against the individual Defendants are barred. The Royalty Agreement explicitly provided that no individuals related to MRCI would be subject to personal liability.

·                     Plaintiff’s non-contract claims are barred by the economic loss rule because these counts arise from the negotiation and execution of the Agreement and allege nothing more than a broken contractual promise.

·                     Plaintiff’s fraud claim is not adequately pled. The FAC fails to allege that Defendants made a false representation, failed to disclose something, or concealed anything prior to the execution of the Agreement. In addition, there are no factual allegations establishing Defendants’ intent to defraud. Plaintiff merely alleges Defendants’ fraudulent intent is evidenced by language in the contract. Furthermore, there are no facts demonstrating justifiable reliance on the part of Plaintiff.

·                     Two of the causes of action asserted in the FAC—specific performance and declaratory relief—are remedies, not causes of action.

·                     Plaintiff’s prayer for punitive damages and conclusory allegations of malice, fraud, or oppression should be stricken because there are no underlying allegations to support these claims. All Plaintiff is alleging is that Defendants had no intention of honoring the $1.00 buy-back option.

In opposition, Plaintiff argues:

·                     In general, Defendants’ demurrer relies on evidence to attack Plaintiff’s factual allegations which is not appropriate on demurrer.

·                     Defendants’ demurrer is procedurally defective because the pages are incorrectly paginated and the memorandum in support exceeds the 15-page maximum.

·                     Plaintiff’s claims are not time barred because the statute of limitations began to run on August 17, 2021— the date of Defendants’ anticipatory breach and the date that Plaintiff first learned of Defendants’ intention not to honor Plaintiff’s buy-back option.

·                     The court may not consider Defendants’ argument regarding release/waiver as they are not a part of the allegations of the pleadings. In addition, demurrer is not appropriate when a contractual provision is open to competing inferences. Furthermore, Civil Code section 1668 makes clear a party cannot contract away liability for their fraudulent or intentional acts. Moreover, a wholesale release of any claims or causes of action by Plaintiff against Defendants and virtually any person or entity affiliated with the Defendants is void and unenforceable as a one-sided agreement in violation of California Civil Code and public policy.

·                     The sham pleading rule does not apply. Discovery is ongoing. The allegations of the FAC were amended for clarity.

·                     The economic loss rule does not bar Plaintiff’s fraud claim. Case law holds that when a party commits fraud during the contract formation or performance, the injured party may recover in contract and tort.

·                     Sufficient facts were pled to state a cause of action for fraud.

·                     Plaintiff has pled the elements of specific performance. Likewise, Plaintiff has pled a justiciable controversy. The general demurrer to these causes of action should be overruled.

·                     Plaintiff’s prayer for punitive damages should not be stricken because punitive damages are proper in fraud cases and the FAC pleads malice, fraud, or oppression.

In reply, Defendants argue:

·                     The demurrer is not procedurally deficient. The memorandum starts on page 8 and ends on 22 and is therefore exactly 15 pages. The demurrer’s pagination complies with California Rules of Court, rule 3.1113, as it was amended in 2016.

·                     Plaintiff does not dispute that his claims against the individual Defendants are barred by the Royalty Agreement.

·                     Plaintiff fails to provide any legal support for the assertion that his buy-back option was irrevocable.

·                     The statute of limitations did not begin to run on August 17, 2021. The Agreement grants Defendants the right to purchase the buy-back option from Plaintiff. Asserting one’s rights under a binding written agreement does not constitute a breach of contract, anticipatory or otherwise. Furthermore, the FAC alleges “Defendants had no intention to honor Plaintiff’s buyback option at the time that the contract was executed” and that this was evidenced by the fact that they added “an irrevocable right to purchase the rights [sic] at any time . . . into the agreement.” (FAC at ¶35). If this is true, the statute of limitations began to run on July 8, 2011 when the parties executed the Royalty Agreement.

·                     The release of claims in the Royalty Agreement does not lend itself to competing inferences. The release of claims argument is appropriate on demurrer. The case law cited by Plaintiff purporting to hold that courts can only consider the allegations in the pleadings is taken out of context.

·                     The changes in Plaintiff’s FAC go far beyond clarifications and the sham pleading doctrine applies.

·                     There is no fraud. Defendants’ right to purchase Plaintiff’s buy-back option is explicitly included in the contract.  Plaintiff fails to plead fraud with particularity. The economic loss rule applies.

·                     Specific performance and declaratory judgment are equitable remedies.

·                     Plaintiff’s prayer for punitive damages fails with his fraud claim. Regardless, Plaintiff does not plead facts justifying punitive damages.

ANALYSIS

A.      Timeliness 

Both a demurrer and a motion to strike are due within 30 days of being served with a complaint. (Code Civ. Proc., §§ 430.40; 435, subd. (b)(1).)  

Plaintiff’s FAC was filed on January 18, 2023. Defendant filed this demurrer and motion to strike on March 20, 2023.  The motions are untimely, but Plaintiff does not raise the issue.

B.      Meet and Confer

A party is required to meet and confer with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The same is true for a motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The meet and confer effort must occur at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).)

Counsel for Defendant states he met and conferred with Plaintiff’s counsel on March 10, 2023 to discuss the FAC, but counsel agreed the Court’s intervention would be necessary to resolve the issues presented by this demurrer. (Cole Decl., ¶ 4.) The instant demurrer and motion to strike were filed ten days later. The meet and confer requirement has been met.

C.      Request for Judicial Notice

Defendant requests the Court take judicial notice of two items: (1) a signature page from the Royalty Agreement, which Plaintiff allegedly omitted from the version he attached to his FAC; and (2) a copy of an email.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code § 450.)

The items are evidence—not indisputable facts or propositions. The request is denied.

D.     Legal Standard for Demurrer

A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contest—any defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Analysis

Defendant demurs on the following grounds: (i) Plaintiff’s claims are time barred; (ii) the Royalty Agreement executed by Plaintiff and MRCI released Defendants from all claims—in general, but also with respect to the individual Defendants; (iii) the sham pleading doctrine bars the allegations in the FAC; (iv) the economic loss rule bars Plaintiff’s non-contract claims; (v) Plaintiff’s fraud claim is not pled with particularity; and (vi) specific performance and declaratory judgment are not recognized as causes of action.

i.                    Statute of Limitations

The limitations period for claims sounding in breach of contract and breach of the implied covenant of good faith and fair dealing is four years. (Code Civ. Proc. § 337(a)). “[W]hether the breach is anticipatory or not, when there are ongoing contractual obligations the plaintiff may elect to rely on the contract despite a breach, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 489.)

The statute of limitations for fraud claims is three years. (Code Civ. Proc. § 338, subd. (d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Ibid.)

With respect to Plaintiff’s anticipatory breach and breach of the implied covenant of good faith and fair dealing claims, the FAC alleges that “Defendants’ letter sent to Plaintiff accompanied by a check for $50,000.00 on August 17, 2021 during the irrevocable option period was a clear and positive indication that Defendants will not meet the requirements of the contract.” (FAC, ¶ 23.) In other words, the FAC alleges the anticipatory breach occurred on August 17, 2021 because Plaintiff elected to treat the letter and check from MRCI as terminating his buy-back option. According to the allegations in the FAC, the statute of limitations did not begin to run until August 17, 2021, which is less than four years before Plaintiff brought this action.

With respect to Plaintiff’s fraud claims, when read in isolation the FAC includes allegations indicating Plaintiff should have discovered the fraud as early as July 8, 2011. Specifically, the FAC alleges that “Defendants showed evidence of their ill intentions by purporting to add an irrevocable right to purchase the rights at any time into subsection h under section 37 of the agreement.” This irrevocable right should have been discovered by July 8, 2011—the date the Royalty Agreement was executed. However, when read in context—which the Court does at the demurrer stage—the FAC as a whole alleges that Plaintiff did not discover Defendants’ fraud until MRCI indicated its intent to purchase Plaintiff’s buy-back option on August 17, 2021.  Assuming the allegations to be true, the statute of limitations did not run on Plaintiff’s fraud claims until August 17, 2021, which is less than three years before Plaintiff brought this action.

The statute of limitations is therefore not a ground to sustain the demurrer.

ii.                   The Release

“A contract is unenforceable as illusory when one of the parties has the unfettered or arbitrary right to modify or terminate the agreement or assumes no obligations thereunder.” (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 385.)

Here, Defendants argue that Plaintiff’s anticipatory breach and breach of the implied covenant of good faith and fair dealing claims are barred because the Royalty Agreement includes a provision releasing Defendants from any and all claims. Indeed, the Agreement purports to release Defendants “from any and all claims . . . and causes of action of every nature, character, and description, whether known or unknown . . . from the beginning of time to the date of this agreement or thereafter.” (FAC, Ex. A, ¶ 14c.). However, in the subsection immediately above, the Agreement clarifies that the purpose of the release is to “eliminate the possibility that any past conditions, acts, omissions, events, circumstances, or matters will impair or otherwise adversely affect any rights…” (Id., Ex. A, ¶ 14b, emphasis added.)

Here, Plaintiff is suing to enforce the $1.00 buy-back option which is included in the Royalty Agreement. (Id., Ex. A, ¶ 37.) To interpret the release provision as barring Plaintiff’s ability to sue on the contract would render the entire Agreement illusory and meaningless. There would be no way for Plaintiff to enforce Defendants’ obligations. Furthermore, the Agreement includes a governing law provision, which states that “all disputes shall be resolved in any State Court in Los Angeles County…” (Id., Ex. A, ¶ 15.) There is no reason to include this provision if Plaintiff is barred from suing to enforce the Agreement.

Whether the release in the Royalty Agreement bars Plaintiff’s right to sue on the contract is, at best, ambiguous. The release is not a ground to sustain the demurrer to the causes of action for anticipatory breach of contract and breach of the implied covenant of good faith and fair dealing.

Defendants also argue Plaintiff’s fraud claims are barred by the release.

“All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Civ. Code § 1668.)

Sustaining the demurrer to Plaintiff’s fraud claims based on the release in the Agreement is a violation of Civil Code section 1668. The release is not a ground to sustain the demurer to the fraud claim.

Finally, Defendants argue a separate release in the Royalty Agreement bars Plaintiff’s claims against the individual Defendants.

Paragraph 20, subsection (ii), of the Agreement provides: “[I]n no even or circumstance shall any of the Dischargees have any personal liability to [Plaintiff] or any other entity arising out of or related to any of the agreement or the relationship between [Plaintiff] and Dischargees.” In addition, MRCI is the only purchaser of the rights to Songwriter’s works. (FAC, Ex. A, ¶ 1.) The individuals are not parties to the Agreement. (See Ibid.) Unlike the general release, this provision is enforceable—the individual Defendants are not parties to the Agreement and the Agreement explicitly releases any individuals from personal liability. Plaintiff’s claims against the individual Defendants are barred.

Accordingly, the demurrers of Parviz Omidvar, Oliver Omidvar, and O’Neal Omidvar are SUSTAINED in their entirety.

iii.                 Sham Pleading Doctrine

The sham pleading doctrine “is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts.” (JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 690-91, citations omitted.) “Instead the rule must be taken together with its purpose, which is to prevent an amended pleading which is only a sham, when it is apparent that no cause of action can be stated truthfully.” (Id. at 691, citations omitted.)

Here, Defendant’s argument is that Plaintiff alleged in his original complaint that the 15-year buy-back period was an unenforceable term in the parties’ Agreement, but in his FAC Plaintiff is seeking to enforce the 15-year buy-back period as an “irrevocable option” contract binding on MRCI. (FAC, ¶ 23.) The Court finds these amendments to be a correction of erroneous allegations rather than contradictory. The gravamen of Plaintiff claims—in both the original complaint and the FAC—is that Defendants are reneging on their agreement to let Plaintiff buy back the rights to Songwriter’s works. The FAC is therefore not a sham pleading.

Accordingly, the sham pleading doctrine is not a reason to sustain the demurrer.

iv.                 Economic Loss Rule

Where alleged wrongdoing arises out of a contractual promise, the economic loss rule bars tort claims for losses purportedly arising out of a contract. (See Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [The economic loss rule “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless [s]he can demonstrate harm above and beyond a broken contractual promise.”].) However, “when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort.” (Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78.)

Likewise, the Court of Appeal recently concluded that fraudulent inducement claims fall within an exception to the economic loss rule. (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843.) Furthermore, the 9th Circuit recently certified a question to the California Supreme Court as to whether claims for fraudulent concealment are exempted from the economic loss rule in Rattagan v. Uber Technologies, holding that the issue was left unresolved by Robinson Helicopter Co.

Here, Plaintiff is attempting to recover in tort contract. But the FAC asserts fraud in the inducement, and alleges Defendants had no intention of honoring the Royalty Agreement. (FAC, ¶ 35.) In other words, Plaintiff is alleging Defendants committed fraud during the formation of the Agreement. Thus, the economic loss rule does not bar Plaintiff’s non-contract claims. 

In light of recent case law on this issue, the economic loss rule is not a ground to sustain the demurrer.

v.                   Cause of Action for Fraudulent Inducement

“Fraud actions...are subject to strict requirements of particularity in pleading...The effect of this rule is twofold: (a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, internal quotations omitted.)

Fraud in the inducement “occurs when ‘the promisor knows what he is signing but his consent is induced by fraud.’” (Dhital, supra 84 Cal.App.5th 828, 839, quoting Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294-295.) The elements of fraud “are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

Here, the FAC fails to plead several elements of fraud. For example, Plaintiff does not allege that Defendants made a false representation or otherwise concealed information outside the four corners of the Royalty Agreement that Plaintiff admits he signed. The FAC contends that Defendants’ fraud was misrepresenting that Plaintiff would be able to buy back the rights to Songwriter’s works at the end of the 15-year period. (FAC, ¶ 34.) But Plaintiff’s right to do so was written into the Agreement that he attached to the FAC. (Id., Ex. A, ¶ 37.) No other details or explanation is provided.

Plaintiff also does not plead Defendants’ intent to defraud. The FAC alleges that “Defendants showed evidence of their ill intentions by purporting to add an irrevocable right to purchase the rights at any time into subsection h under section 37 of the agreement.” (Id., ¶ 35.) But, again, that is a written term of the Royalty Agreement. (Id., Ex. A, ¶ 37h.) The actual terms of the Agreement cannot be evidence of fraud or misrepresentation. No other allegations of fraudulent intent are in the FAC.

Plaintiff has failed to plead fraud with particularity. Accordingly, Defendants’ demurrer to the cause of action for fraud in the inducement is SUSTAINED.

vi.                 Causes of Action for Specific Performance and Declaratory Judgment

“Specific performance and injunctive relief are equitable remedies and not causes of action for injuries.” (Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 901; see also Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 433 [“The City also correctly observes that the complaint's 10th claim, which is for specific performance of the alleged implied agreement, actually constitutes a remedy and is not itself a cause of action.”].)

Here, the FAC alleges a cause of action for anticipatory breach of contract. Plaintiff can seek specific performance if he prevails on his contract claim, but specific performance is not recognized as a distinct cause of action.

Accordingly, Defendants’ demurrer to the cause of action for specific performance is SUSTAINED.

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290).

Here, the cause of action for declaratory relief is duplicative of the other claims in the FAC. The dispute between the parties is regarding Plaintiff’s buy-back option, and the issues raised by the buy-back option are covered by the causes of action for anticipatory breach of contract and fraudulent inducement.

Accordingly, Defendants’ demurrer to the cause of action for declaratory relief is SUSTAINED.

E.      Legal Standard for Motion to Strike

“Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part” of that pleading.  (Code Civ. Proc., § 435, subd. (b).)  “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court.”  (Code Civ. Proc., § 436.)

Defendants move to strike the punitive damages on the grounds that Plaintiff has not pled a cause of action for fraud. Defendants also move to strike paragraph 38, lines 17–21 of the FAC alleging that “the conduct of Defendants…was undertaken with the intent to injure Plaintiff, or with a willful and conscious disregard of Plaintiff’s rights, and constitutes clear and convincing evidence of outrageous, oppressive, malicious, and fraudulent conduct…”

The Court has found that Plaintiff insufficiently pled his cause of action for fraud in the inducement. The remaining causes of action are those arising out of the Royalty Agreement. Punitive damages, however, are not recoverable in obligations arising from contract. (Civ. Code § 3294.) Since the only remaining causes of action arise from the Royalty Agreement, there no longer is a basis for punitive damages. And since the FAC fails to plead fraud, the allegations of malice, fraud, or oppression also have no basis.

Accordingly, Defendants’ motion to strike the request for punitive damages is GRANTED. Defendants’ motion to strike paragraph 38, lines 17–21 of Plaintiff’s first amended complaint is GRANTED.

F.       Leave to Amend

“Where the complaint is defective, ‘[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint…” (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 211.) “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 689.)

Pursuant to Rules of Court 3.1320, subdivision (g), Plaintiff is granted 10 days leave to amend.

G.     Conclusion

Defendants Parviz Omidvar, Oliver Omidvar, and O’Neal Omidvar’s demurrers are SUSTAINED in their entirety.

Defendant Music Royalty Consulting, Inc.’s demurrer to Plaintiff’s first cause of action for anticipatory breach of contract and second cause of action for breach of the implied covenant of good faith and fair dealing is OVERRULED.

Defendant Music Royalty Consulting, Inc.’s demurrer to Plaintiff’s third cause of action for fraud in the inducement, fourth cause of action for specific performance, and fifth cause of action for declaratory relief is SUSTAINED.

The motion to strike the prayer for punitive damages and paragraph 38, lines 17–21 of Plaintiff’s first amended complaint is GRANTED.

Plaintiff granted 10 days leave to amend.