Case Name: Yen Thi Vu v. Chinh Tran, et al.

Case No.: 1-14-CV-273540

This action arises out of the breach of various contracts between plaintiff Yen Thi Vu (“Plaintiff”) and her daughter and son-in-law, defendants Minh Tran and Chinh Tran (collectively “Defendants”).

On November 20, 2014, Plaintiff filed the operative complaint against Defendants, alleging causes of action for: (1) breach of written contract; (2) breach of oral contract; (3) breach of the covenant of good faith and fair dealing; (4) intentional misrepresentation; (5) fraud; (6) unjust enrichment; and (7) conversion.

Currently before the Court is the demurrer by Defendants to the complaint. Defendants demur to the complaint in its entirety and each and every cause of action of the complaint on the grounds of failure to allege facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subds. (e) and (f).)

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

The demurrer to the complaint in its entirety on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED. Defendants do not assert any argument with respect to the entirety of the complaint on the ground of failure to allege facts sufficient to constitute a cause of action in their memorandum of points and authorities. (See Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”]; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”].)

The demurrer to the complaint in its entirety on the ground of uncertainty is OVERRULED. Defendants contend that the complaint is uncertain because Plaintiff verified the complaint, but did not specify which allegations are based on her personal knowledge as opposed to information and belief. Defendants cite no legal authority and the Court is not aware of any providing that the pleading must contain such specifications. Moreover, the absence of such information does not make it impossible for Defendants to respond to the complaint. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.)

The demurrer to the first cause of action for breach of written contract on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED. The complaint adequately alleges the terms of the written contract (i.e., Defendants were to hold $200,000 in cash for Plaintiff and return the money to her upon demand). (See Complaint, ¶ 10.) Additionally, the notarized document attached to the complaint contains some of the terms of the alleged written contract as it states that Defendants agreed to keep $200,000 in cash for Plaintiff. Moreover, Defendants do not cite any legal authority stating that the written contract must set forth each and every term of the parties’ agreement.

The demurrer to the second cause of action for breach of oral contract on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED. Plaintiff clearly alleges the terms of the oral agreement (i.e., Defendants agreed to hold $111,000 for Plaintiff and return the sum to her upon demand). (See Complaint, ¶¶ 12, 21-22.)

The demurrer to the first and second causes of action on the ground of uncertainty is OVERRULED. Plaintiff adequately alleges that Defendants breached the terms of the written contract by refusing to return the $200,000 to her upon demand and breached the terms of the oral contract by refusing to return the entire $110,000 to her upon demand. (See Complaint, ¶¶ 12, 15, 18, 23.) Additionally, Plaintiff is not required to allege the dates of the breaches as she need only allege facts sufficient to apprise Defendants of the specific conduct which she asserts is violative of the contracts. (See Bentley v. Mountain (1942) 51 Cal.App.2d 95, 98; see also Wise v. Southern Pacific (1963) 223 Cal.App.2d 50, 60 [overruled on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503].)

The demurrer to the third cause of action for breach of the covenant of good faith and fair dealing on the ground of failure to allege facts sufficient to state a cause of action is SUSTAINED, with 10 days’ leave to amend, because it alleges nothing more than breaches of the alleged written and oral contracts and, therefore, is superfluous of the first and second causes of action. (See Careau & Co. v. Sec. Pac. Bus. Credit (1990) 222 Cal.App.3d 1371, 1395 [“If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.”].)

The demurrer to the third cause of action for breach of the covenant of good faith and fair dealing on the ground of uncertainty is OVERRULED because it is clear from Defendants’ other arguments that they understand what the cause of action attempts to allege and there is no true uncertainty. (See Khoury v. Maly’s of Cal., Inc., supra, 14 Cal.App.4th at p. 616.)

The demurrer to the fourth cause of action for intentional misrepresentation on the ground of failure to allege facts sufficient to constitute a cause of action is SUSTAINED, with 10 days’ leave to amend, because Plaintiff does not specifically allege when or the manner in which (i.e., orally, by email, by letter, etc.) the alleged misrepresentations were made. (See Lazar v. Super. Ct. (1996) 12 Cal.4th 632, 645 [to state a claim for fraud the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, to whom they spoke, the manner in which the representations were made, what they said or wrote, and when it was said or written].)

The demurrer to the fourth cause of action for intentional misrepresentation on the ground of uncertainty is OVERRULED. The fourth cause of action includes allegations regarding punitive damages. Defendants argue that the fourth cause of action is uncertain because it does not state the specific conduct that Defendants engaged in that constitutes fraud, oppression, or malice. Defendants’ argument is not well-taken because the cause of action specifically alleges that Defendants made various fraudulent misrepresentations to Plaintiff (see Complaint, ¶ 34) and, moreover, Defendants cannot demur to part of a cause of action. (See PH II, Inc. v. Super. Ct. (Ibershof) (1995) 33 Cal.App.4th 1680, 1682 [stating that a demurrer does not lie to a portion of a cause of action].)

The demurrer to the fifth cause of action for fraud on the grounds of failure to allege facts sufficient to constitute a cause of action and uncertainty is SUSTAINED, with 10 days’ leave to amend, because Plaintiff does not specifically allege: the substance of the fraudulent promises; when the fraudulent promises were made; or the manner in which (i.e., orally, by email, by letter, etc.) the fraudulent promises were made. (See Complaint, ¶ 43 [stating only that Defendants “made promises about material facts without any intention of performing them”]; see also Lazar v. Super. Ct., supra, 12 Cal.4th at p. 645.)

The demurrer to the sixth cause of action for unjust enrichment on the grounds of failure to allege facts sufficient to constitute a cause of action and uncertainty is SUSTAINED, with 10 days’ leave to amend, as it merely alleges that Defendants were unjustly enriched by various “wrongful acts” and does not state what conduct constituted the alleged wrongful acts.

The demurrer to the seventh cause of action for conversion on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED. Defendants argue that the seventh cause of action fails to allege facts sufficient to state a cause of action because the notarized document attached to the complaint expressly assents to and/or ratifies their taking and use of Plaintiff’s property. Defendants’ argument is wholly without merit. First the notarized document is not signed by Plaintiff and, therefore, does not demonstrate her assent to and/or ratification of its terms. Second, the complaint does not allege that Defendants’ mere holding of the funds for Plaintiff constituted conversion, but that Defendants’ refusal to return the funds upon demand constituted conversion. Thus, the notarized document stating that Defendants agreed to hold the funds for Plaintiff does not contradict the allegations of the claim for conversion.

The demurrer to the seventh cause of action for conversion on the ground of uncertainty is OVERRULED because Defendants assert the same arguments regarding uncertainty that they proffered with respect to the fourth cause of action and, as articulated above, those arguments lack merit.