Case Number: SC127715 Hearing Date: January 17, 2018 Dept: O

SC127715

RIZK v. NICHOLSON

Defendant’s Request for Judicial Notice is GRANTED. Defendant Ryan Nicholson’s Demurrer to Plaintiff Macarius Rizk’s First through Fourth Causes of Action for Breach of Contract, Common Counts, Fraud and Breach of Non-Disclosure Agreement is SUSTAINED with ten days leave to amend. Defendant’s Motion to Strike is MOOT.

ANALYSIS: First Cause of Action for Breach of Contract

Defendant demurs to Plaintiff’s First Cause of Action on the grounds that Plaintiff has alleged no supporting facts. (Demurrer at pg. 5:16-6:1.) Plaintiff has not alleged with “reasonable precision and particularity” the specific terms of the contract Defendant allegedly breached. Additionally, Plaintiff concedes that his complaint “failed to include his . . . causes of action for Breach of Contract and Breach of non-disclosure agreement.” (Opposition at pg. 2:10-2:12.) Here, this concession is dispositive.

Second Cause of Action for Common Counts

Defendant demurs to this cause of action on the grounds that it is clearly an alternative means of seeking recovery under the alleged contract, and that it is therefore demurrable alongside Plaintiff’s Cause of Action for Breach of Contract. This argument is sound. Though Plaintiff does plead the basic elements of a common count claim, the amount of damages he requests requests ($7,598,186) is identical to the amount of contract damages broken down in Plaintiff’s BC-4 attachment. Clearly, then, both causes of action are alternate ways of seeking the same recovery. Since Plaintiff’s Cause of Action for Breach of Contract is demurrable, so too is his Common Counts claim.

Third Cause of Action for Fraud

Defendant demurs to this cause of action on the grounds that Plaintiff has not alleged sufficient facts to meet the heightened pleading standards for fraud. Plaintiff’s fraud claim fails the “who, what, why, when, where and to whom” particularity test referenced above. Though Plaintiff indicates that Defendant “represented” that he would pay Plaintiff a salary and fund the film, Plaintiff does not state facts showing when this representation was made, where it was made, or the means by which it was made. Plaintiff’s allegations of scienter and intent to induce reliance are similarly vague. For this cause of action to proceed, Plaintiff must plead facts that meet the heightened pleading standards required for a fraud cause of action.

Fourth Cause of Action for Breach of Non-Disclosure Agreement

The Complaint provides little indication as to the nature of this claim, but the Court infers that it is meant to be a cause of action for breach of contract. Plaintiff again concedes that this cause of action was not actually pleaded in the Complaint. There are no facts provided that would give Defendant notice of the nature of the agreement that he is alleged to have breached, or how he breached it. This cause of action is therefore fatally uncertain.

Motion to Strike

Since Defendant’s Demurrer has been sustained as to Plaintiff’s entire FAC, the Motion to Strike is MOOT.