S-CV-0040035 Bakir, Nasrin vs. Bakir, Raed N.
Demurrer to Second Amended Complaint

Defendant Raed N. Bakir’s request for judicial notice is granted.

Defendant’s demurrer to second amended complaint is overruled in part, and sustained in part without leave to amend, as set forth below.

A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action, or where the claim is uncertain. Code Civ. Proc. § 430.10(e), (f). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff’s allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id.

In ruling on the demurrer, no extrinsic evidence may be considered. Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Accordingly, the court has not considered the declarations of Raed N. Bakir in ruling on this demurrer.

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The demurrer is overruled on the grounds of another action pending between the parties. The court is unable to determine from the face of the pleading or from matters outside of the pleading that are judicially noticeable that there is another action pending between the same parties on the same cause of action.

The demurrer is sustained with respect to plaintiff’s third cause of action for accounting. An accounting is properly alleged either “(1) where a fiduciary relationship exists between the parties, or (2) where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable.” Jolley v. Chase home Finance, LLC (2013) 213 Cal.App.4th 872, 910. Plaintiff fails to allege a fiduciary relationship with moving defendant. Further, plaintiff fails to allege facts showing that the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. To the contrary, plaintiff clearly alleges a fixed sum of money to which she is entitled, and which defendant is withholding. Nothing prevents plaintiff from seeking discovery regarding the transfer of funds in connection with plaintiff’s other causes of action. Plaintiff fails to allege facts supporting an action for an accounting.

The demurrer is sustained with respect to plaintiff’s fifth cause of action for promissory estoppel. “‘The elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”’” Advanced Choices, Inc. v. State Dept. of Health Svcs. (2010) 182 Cal.App.4th 1661, 1672. Plaintiff fails to allege a clear and unambiguous promise made by the moving defendant, or reasonable and detrimental reliance thereon. To the contrary, the second amended complaint suggests that plaintiff never agreed to allow defendant to take control over the subject funds, and that defendant has consistently refused to relinquish the funds despite plaintiff’s demands.

Finally, the demurrer is sustained with respect to plaintiff’s sixth cause of action for actual fraud pursuant to Civil Code section 1572. Civil Code section 1572 relates specifically to fraud committed by a party to a contract. In this case, plaintiff does not allege any contract with defendant. Further, plaintiff fails to allege the claim with specificity, and fails to plead how, when and where any alleged representations were tendered. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Plaintiff also fails to allege facts establishing a complete causal relationship between any alleged misrepresentations and the harm claimed to have resulted therefrom. Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092.

The court presumes that the facts alleged in the second amended complaint state the strongest case for plaintiff. Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1286. A demurrer shall be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defects can be cured by amendment. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The second amended complaint does not suggest on its face that it is capable of amendment and plaintiff fails to make any showing that it can be amended to change its legal effect. Accordingly, the demurrer is sustained as to the third, fifth and sixth causes of action without leave to amend.

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Defendant shall file and serve his answer to the complaint on or before April 13, 2018.

Motion to Strike

Defendant Raed N. Bakir’s Motion to Strike is denied in part and granted in part without leave to amend, as set forth below.

A motion to strike may be used to strike any irrelevant, false or improper matter inserted in any pleading, or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, court rule, or court order. Code Civ. Proc. § 436. Defendant’s motion is granted as to plaintiff’s reference to an accounting in light of the ruling sustaining the demurrer to this cause of action. The motion is also granted as to plaintiff’s reference to attorneys’ fees, as plaintiff fails to allege any statutory or contractual basis for an award of attorneys’ fees in this action. The motion is otherwise denied as the court finds that plaintiff has adequately alleged specific facts supporting a finding of oppression, fraud or malice on the part of moving defendant.

Defendant shall file and serve his answer to the complaint on or before April 13, 2018.