Case Name: Kris Narayan v. Ebay, et al.
Case No.: 1-14-CV-262157

Defendants Ebay, Inc. (“Ebay”), Robert Swan (“Swan”) and John Donahue (“Donahue”) (collectively, “Defendants”) demur to the complaint by plaintiff Kris

Narayan (“Plaintiff”) on the grounds of failure to allege whether a contract is written, oral, or implied by conduct (as to the first cause of action only) and failure to allege sufficient facts to constitute a cause of action (as to both causes of action). (See Code Civ. Proc. [“CCP”], § 430.10, subds. (e) & (g).)

Defendants’ demurrer to the first cause of action on the ground of failure to allege whether a contract is oral, written or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The complaint is a Judicial Council form complaint that required Plaintiff to check one of three boxes to indicate whether the contract was written, oral, or “other.” (Compl., p. 3 at ¶ BC-1.) Plaintiff checked the third box—“other”—and then described the “other” type of contract as a shareholder agreement without indicating whether the alleged contract is oral, written, or implied by conduct. (Id.) No where else in the complaint does Plaintiff specify whether the alleged shareholder agreement is written, oral, or implied.
Defendants’ demurrer to the first cause of action for failure to allege sufficient facts to constitute a cause of action should be SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371 [elements to state a claim for breach of contract are: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages to plaintiff].) Defendants persuasively argue that the complaint does not adequately state the existence of a contract because it does not describe the terms or legal effect of the alleged shareholder agreement, but rather, it recites Defendants’ obligations under the SEC regulations. (See Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 500-501.) Since Plaintiff has not pleaded one of the necessary elements to state a claim for breach of contract, the complaint does not allege sufficient facts to support the first cause of action.

Defendants’ demurrer to the second cause of action for failure to allege sufficient facts to constitute a cause of action should be SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. A claim for promissory fraud must allege the lack of intent on the part of the defendant at the time the promise was made to perform it. (See Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal.App.672, 677.) Here, Plaintiff alleges that Defendants made promises about how Ebay would perform in the future, but does not allege facts to support the legal conclusion that Defendants knew their promises of future performance were false when they made the alleged promises. (Compl., p. 4 at ¶ FR-2-FR-4 & Attachment BC-2.) Accordingly the complaint does not allege sufficient facts to constitute a claim for fraud.