Case Number: 18PSCV00002 Hearing Date: March 06, 2019 Dept: J

RE: Tahmizian v. Macias (18PSCV00002)

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1. Defendant Richard Macias’[1]DEMURRER TO PLAINTIFF’S COMPLAINT

Responding Party: Plaintiff, Kirk Tahmizian

2. Defendant Christine Macias’ DEMURRER TO PLAINTIFF’S COMPLAINT

Responding Party: Plaintiff, Kirk Tahmizian

Tentative Ruling

1. Defendant Richard Macias’ Demurrer to Plaintiff’s Complaint is SUSTAINED. The

court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as

to which cause(s) of action, and will require an offer of proof if so.

2. Defendant Christine Macias’ Demurrer to Plaintiff’s Complaint is SUSTAINED. The

court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as

to which cause(s) of action, and will require an offer of proof if so.

Background

Plaintiff Kirk Tahmizian (“Plaintiff”) alleges that his niece, Defendant Christina Macias (“Christina”), and Christina’s husband, Defendant Richard Macias (“Richard”) asked Plaintiff for money in 2014 so that they could bring down their debt and qualify for a loan to buy a new house located at 320 Via Blanca, San Dimas, CA 91773. Plaintiff alleges that Christina and Richard promised to sell their previous primary residence located at 219 North Bromley Ave, West Covina, CA 91790 (“West Covina Property”) within a reasonable time, but no later than four years of 2014, and promised to pay Plaintiff back with the proceeds of the sale of the West Covina Property. Plaintiff alleges that Defendants did not keep their promises and instead leased the West Covina Property. On October 9, 2018, Plaintiff filed a complaint, alleging causes of action against Defendants Richard, Christina and Does 1-10 for:

1. Breach of Contract

2. Common Counts

3. Intentional Tort

A Case Management Conference is set for March 6, 2019.

Legal Standard

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. 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.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

A demurrer for uncertainty, moreover, will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (CCP § 430.10(f); see Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Also, a demurrer may be made “[i]n an action founded upon a contract” on the basis that “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (CCP § 430.10(g).)

Discussion

Richard and Christina demur, per CCP § 430.10(e)&(f), to the first through third causes of action in Plaintiff’s complaint, on the basis that they fail to state facts sufficient to constitute causes of action and are uncertain. Richard and Christina further demur to the first cause of action per subsection (g), on the basis that it cannot be ascertained whether the contract is written, oral or implied by conduct.

Meet and Confer

On February 11, 2019, the court, on its own motion, continued the hearing on Richard’s demurrer to March 6, 2019. The court also advanced the February 14, 2019 hearing on Christina’s demurrer to February 11, 2019 and continued same to March 6, 2019. The court’s tentative ruling for February 11, 2019, which was adopted as the court’s order, determined that Richard’s and Christina’s counsel’s meet and confer efforts were insufficient for purposes of CCP § 430.41. The court further instructed Richard’s and Christina’s counsel to file a declaration directly in Department J in compliance with CCP § 430.41(a)(3) at least 10 court days prior to the continued March 6, 2019 hearing date.

The court is in receipt of a “Declaration of Francisco A. Suarez in Regard to Meet and Confer for Hearing on Demurrer March 6, 2019,” which was filed on February 28, 2019. Mr. Suarez’s declaration was not timely filed, per the court’s February 11, 2019 order. The court admonishes Mr. Suarez in this regard. With that said, the court determines that Mr. Suarez’s declaration is sufficient for the purpose of showing CCP § 430.041 compliance and will entertain the merits of the demurrers.

Merits

First Cause of Action for Breach of Contract

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

“Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (CCP § 430.10(g).). If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.)

Although Plaintiff has checked ¶8 in his Judicial Council form complaint signifying that a cause of action for breach of contract is attached, no such cause of action is, in fact, attached. Plaintiff has alleged only that he is seeking $95,000.00 in damages, plus legal interest and attorney’s fees according to proof. Plaintiff has not pled the elements of a cause of action for breach of contract, let alone specified whether the alleged contract was written, oral, or implied by conduct.

Defendants’ demurrer to the first cause of action is SUSTAINED.

Second Cause of Action for Common Counts

“A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Ibid.)

Here, although there are no facts pled with respect to Plaintiff’s defective breach of contract cause of action, it is evident that Plaintiff is using his common counts cause of action as an alternative way of seeking the same recovery in the breach of contract cause of action, as ¶¶ CC-2 and CC-3 seeks the exact same relief in ¶ 10.

Defendants’ demurrer to the second cause of action, then, is SUSTAINED.

Third Cause of Action for Intentional Tort

Plaintiff has not identified what “intentional tort” he is pursuing. Assuming it is fraud, “[t]he essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) “Fraud must be pleaded with specificity…[t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Plaintiff has not pled facts constituting every element of his fraud cause of action. Accordingly, Defendants’ demurrer to the third cause of action is SUSTAINED.

The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as

to which cause(s) of action, and will require an offer of proof if so.

[1] On January 18, 2019, two documents entitled “Defendants Richard Macias and Christina Macias Notice of Hearing; Motion to Demurrer; Demurrer to Plaintiffs Complaint; Demurrer and Points and Authorities in Support of Demurrer; Declaration of Francisco A. Suarez” were filed. These documents appear to be identical, except that they had different reservation numbers and hearing dates (i.e., Reservation #5189637695178 for February 11, 2019 and #469303424561 for February 14, 2019). The reservation sheet for #5189637695178 identifies “Richard Macias (Defendant)” as the moving party and the reservation sheet for #469303428561 identifies “Christina Macias (Defendant)” as the moving party. Plaintiff filed a combined opposition. The court will address Richard’s and Christine’s demurrers together.