Judge: Upinder S. Kalra, Case: 20STCV10451, Date: 2023-03-14 Tentative Ruling

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Case Number: 20STCV10451    Hearing Date: March 14, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   March 14, 2023                                  

CASE NAME:           Ernes Rey Calhoon v. M. Jajjar, et al.

CASE NO.:                20STCV10451

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant Monzer Najjar

RESPONDING PARTY(S): None as of March 9, 2023.

REQUESTED RELIEF:

1.      An order sustaining the demurrer as to the entire complaint.

2.      An order striking various portions of the complaint concerning damages.

TENTATIVE RULING:

1.      Demurrer is SUSTAINED, without leave to amend, as to the entire complaint.

2.       Motion to Strike is MOOT.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 16, 2020, Plaintiff Ernest Calhoon (“Plaintiff”) filed a complaint against Defendants M. Najjar, S. Anderson, and B. Anderson (“Defendants”). The complaint alleged a cause of action for quantum meruit. The complaint alleges that promises were made for payment, but these promises were not kept.

On May 2, 2022, Plaintiff dismissed Anderson Defendants.

On October 19, 2022, Plaintiff filed the First Amended Complaint, which alleged three causes of action: (1) Breach of Contract, (2) Fraud, and (3) Quantum Meruit.

The current Demurrer and Motion to Strike was filed on November 17, 2022. No Opposition has been filed as of March 9, 2023.

LEGAL STANDARD

Demurrer

A demurrer for sufficiency tests 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 context. In a demurrer proceeding, the 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. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn 147 Cal.App.4th at 747.)

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Meet and Confer:

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of James Ryan indicates that the Defendant’s counsel sent a meet and confer letter to Plaintiff. Plaintiff responded via email stating that “I do believe there should be a more specific complaint,” but Plaintiff did not demonstrate that a “code compliant complaint would trigger attorney-client privilege.” (Dec. Ryan ¶ 6.)

ANALYSIS:

Defendant demurs on the ground that all three causes of action fail to state sufficient facts to constitute a cause of action.

1.      Breach of Contract

Defendant argues that the first cause of action for breach of contract fails to state facts that would constitute a cause of action. The FAC does not identify terms of the agreement and fails to provide specifics concerning the alleged written and oral contracts.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff.  [Citation.]”  (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

After a review of the FAC, the Court finds that Plaintiff has failed to sufficiently plead a cause of action for breach of contract. There are no terms identified, nor does the FAC indicate a breach. “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.) Additionally, the FAC contains conclusory statements, such as “Plaintiff has performed” and “Defendant breached agreement.” (FAC ¶¶ 9-10.) These are insufficient for a cause of action for breach of contract.

Therefore, Demurrer as to the First Cause of Action is SUSTAINED.

2.      Fraud

Defendant argues that the second cause of action fails for various reasons. One, the FAC does not contain the required specificity for fraud causes of action. Additionally, Plaintiff failed to provide facts that indicate Defendant “did not intend to perform the alleged false promises at the time those promises were purportedly made.” (Demurrer 4: 25-26.) Third, Plaintiff does not plead any facts indicating reliance on an alleged promise.

“The elements of fraud, which give rise to the tort action for deceit, 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.)

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice…this particularity requirements necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tenders.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)“[W]hen averments of fraud are made, the circumstances constituting the alleged fraud must be specific enough to give defendants notice of the particular misconduct so that they can defend against the charge and not just deny that they have done anything wrong.” (Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003) (internal quotations and citations omitted).

            After a review of the FAC, the Court finds that Plaintiff has failed to sufficiently allege a cause of action for fraud. There are no specifics, the who, what, when, how, and by what means, as required for fraud causes of action. What were the representations? When were these alleged representations made? The entirety of the second cause of action is one paragraph of the FAC (FAC ¶ 12), which states that Defendant “engaged in false promises which he never intended to keep as was later revealed by his statements.” While the complaint states that “the more specifics of which supplied in camera, or at trial,” the Court finds this unavailing. First, Plaintiff could have filed a motion that would redact any potential confidential statements. Even then, Plaintiff could have provided more information about the alleged representations without disclosing potentially confidential information. Moreover, the FAC provides no statement or facts that Plaintiff justifiably relied on any statements.

Therefore, Demurrer as to the Second Cause of Action is SUSTAINED.

3.      Quantum Meruit

Defendant argues that this cause of action fails because the FAC contains vague allegations. Specifically, the FAC states that Defendants “became indebted to Plaintiff for the reasonable value of his services.” (FAC ¶ 15.) However, the FAC does not identify the services that were performed or that all parties “involved in the alleged agreement expected compensation to be offered in exchange for unspecified services.” (Demurrer 5: 21-25.) Lastly, Defendant argues that this claim for quantum meruit cannot exist along with a valid claim for breach of written contract.

To recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Ochs v.PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d 734],internal citation omitted.)

            After a review of the FAC, the Court finds that Plaintiff failed to establish a cause of action for quantum meruit. Plaintiff has failed to demonstrate which specific services. In paragraph 6 of the FAC, Plaintiff alleges that he worked “diligently, zealously and continuously to represent client’s interest.” This is insufficient for a quantum meruit cause of action.

            Demurrer as to the Third Cause of Action is SUSTAINED.

Leave to Amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.  (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)  The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Previously, this Court indicated that it would provide Plaintiff with one opportunity to amend the complaint. However, as indicated above, Plaintiff failed to adequately amend the original complaint to sufficiently state causes of action.

Therefore, Leave to Amend is DENIED.

Motion to Strike:

Defendant moves to strike various portions of the FAC that concern damages. However, as the Court has sustained the complaint in its entirety, the Motion to Strike is MOOT.

CONCLUSION:

For the foregoing reasons, the Court decides the pending motion as follows:

            Demurrer is SUSTAINED, without leave to Amend.

            Motion to Strike is MOOT.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             March 14, 2023                       __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court