Case Number: 18NWCV00016 Hearing Date: February 14, 2019 Dept: SEC

VYAS v. KYAW

CASE NO.: 18NWCV00016

HEARING: 02/14/19

JUDGE: KRISTIN S. ESCALANTE

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TENTATIVE ORDER

Defendant KYAW’s demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend in part, and SUSTAINED without leave to amend in part. CCP §430.10(e).

Defendant KYAW’s motion to strike portions of Plaintiff’s Complaint is MOOT.

Moving Party to give notice.

This action for breach of contract was filed by Plaintiffs JUNE SHIVANGI VYAS and SHAE (SWEETY) STEFANI (collectively “Plaintiffs”) on October 17, 2018. The relevant facts, as alleged, are as follows: “On or about June 15, 2017, defendant KUMAR and DOES 1 through 5, inclusive, met, in person, with SHIVANGI for the purpose of obtaining a personal loan in the amount of $50,000.00. [¶] Defendant KUMAR and DOES 1 through 5, inclusive, repeatedly implored SHIVANGI for the loan, by claiming to be physically sick and weak, having suffered a heart attack, claiming to be destitute and desperate for money to participate in her sister’s upcoming wedding activities, all the while crying acting in need. [¶] Defendant KUMAR and DOES 1 through 5, inclusive, also represented that she would be sharing proceeds with SWEETY and would hold the money in trust on her behalf. [¶] In reliance upon KUMAR’s representations, SHIVANGI provided KUMAR with $50,000.00. [¶] SHIVANGI and KUMAR subsequently exchanged communications wherein KUMAR reaffirmed that she would pay SWEETY $50,000.00. [¶] KUMAR did not fulfill her representations and did not provide SWEETY with the monies that she purported to hold in trust for SWEETY, thereby breaching her contract.” (Complaint ¶¶ 11-16.)

Plaintiff’s Complaint asserts the following causes of action: (1) Breach of Oral Contract; (2) Fraud/Intentional Misrepresentation; and (3) Unjust Enrichment.

Defendant demurs to all three causes of action pursuant to CCP §430.10(e) and (f). In the same motion, Defendant also moves to strike “any factual allegations or legal grounds that would entitle Plaintiffs to recover restitution, punitive, or exemplary damages or attorney’s fees from the moving Defendant.” (Dem. 4:25-27.) For the future, Counsel are reminded that Motions to Strike and Demurrers must be filed as separately noticed motions.

In the Memorandum of Points and Authorities, Defendant asserts additional, extraneous facts beyond those alleged in the Complaint. The Court has not considered those additional facts in ruling on these demurrers.

As to the Entire Complaint – Uncertainty

Defendant argues that the Complaint is uncertain because It fails to set forth sufficient facts maintain the causes of action asserted. Defendant’s argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Ibid.) Here, it is clear from Defendant’s other arguments that he understands what the Complaint at least attempts to allege, and there is no true uncertainty.

First Cause of Action – Breach of Oral Contract

The elements for a breach of contract cause of action are: (1) the existence of a contract; (2) Plaintiffs’ performance or excuse for nonperformance; (3) Defendant’s breach (or anticipatory breach); and (4) resulting damage to Plaintiffs. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) Plaintiffs fail to allege facts to support a claim for breach of contract. Specifically, the Complaint does not include sufficiently allege the terms of the alleged oral contract, or how Defendant allegedly the breach of contract. In particular, among other things, it is not clear whether or to what extent the alleged loan was conditioned on the use of the proceeds in connection with Defendant’s sister’s wedding, or whether and to what extent the loan was to fund a trust for Stefani’s benefit, or whether the loan agreement was actually between Shivangi and Stefani, with Defendant acting as a surety. The demurrer to the first cause of action is sustained with 30 days leave to amend.

Second Cause of Action – Intentional Misrepresentation

Plaintiffs must plead allegations that meet the heightened pleading requirements for fraud. Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendant’s demurrer to the second cause of action is sustained with 30 days leave to amend. Plaintiffs must allege facts with particularity in order to maintain this cause of action. Among other things, the Plaintiffs must allege specific facts regarding the specific representations that are alleged to be false.

Third Cause of Action – Unjust Enrichment

Plaintiffs fail to state a valid cause of action under California law. Unjust enrichment is not a cause of action, just a restitution claim. (See Hill v. Rock Int’l Corp., (2011) 195 Cal.App.4th 1295, 1307.) There being no actionable wrong alleged in the Complaint, there is no basis for relief. The demurrer to the third cause of action is sustained without leave to amend.

The motion to strike is rendered moot by the Court’s ruling on the demurrer.