This case was last updated from Los Angeles County Superior Courts on 09/17/2020 at 00:09:16 (UTC).

ENRICH FINANCIAL, INC. VS AMIR PAZUKI SHARIF

Case Summary

On 03/19/2019 ENRICH FINANCIAL, INC filed a Contract - Other Contract lawsuit against AMIR PAZUKI SHARIF. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2722

  • Filing Date:

    03/19/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

ENRICH FINANCIAL INC.

Defendant

SHARIF AMIR PAZUKI

Attorney/Law Firm Details

Plaintiff Attorney

EGHBALI DORON

Defendant Attorney

DILLON ISAAC GOSS

 

Court Documents

Notice of Motion - Notice of Motion AND MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

8/19/2019: Notice of Motion - Notice of Motion AND MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

8/19/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Notice (name extension) - Notice Defendant's Notice of Plaintiff's Non-Opposition to Defendant's Demurrer / Motion to Strike

9/5/2019: Notice (name extension) - Notice Defendant's Notice of Plaintiff's Non-Opposition to Defendant's Demurrer / Motion to Strike

Amended Complaint - Amended Complaint

9/10/2019: Amended Complaint - Amended Complaint

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

9/12/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

10/25/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Opposition (name extension) - Opposition to Demurrer; Memorandum of Points and Authorities

11/4/2019: Opposition (name extension) - Opposition to Demurrer; Memorandum of Points and Authorities

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

11/6/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

12/16/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Amended Complaint - Amended Complaint

12/30/2019: Amended Complaint - Amended Complaint

Request for Dismissal - Request for Dismissal

3/13/2020: Request for Dismissal - Request for Dismissal

Summons - Summons on Complaint

3/19/2019: Summons - Summons on Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/19/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

3/19/2019: First Amended Standing Order - First Amended Standing Order

Civil Case Cover Sheet - Civil Case Cover Sheet

3/19/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

3/19/2019: Complaint - Complaint

4 More Documents Available

 

Docket Entries

  • 03/20/2020
  • DocketNon-Jury Trial scheduled for 09/15/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 03/20/2020

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  • 03/20/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/22/2022 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 03/20/2020

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  • 03/13/2020
  • DocketOn the Amended Complaint (2nd) filed by Enrich Financial, Inc. on 12/30/2019, entered Request for Dismissal with prejudice filed by Enrich Financial, Inc. as to the entire action

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  • 03/13/2020
  • DocketERROR with ROA message definition 99 on [ln 28, col 22] with Document:76658636

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  • 03/13/2020
  • DocketAddress for Doron Eghbali (Attorney) null

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  • 01/03/2020
  • DocketUpdated -- Amended Complaint 2nd: Name Extension: 2nd; As To Parties changed from Amir Pazuki Sharif (Defendant) to Amir Pazuki Sharif (Defendant)

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  • 12/30/2019
  • DocketAmended Complaint; Filed by: Enrich Financial, Inc. (Plaintiff); As to: Amir Pazuki Sharif (Defendant)

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  • 12/16/2019
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

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  • 12/16/2019
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 12/16/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 12/16/2019; Result Type to Held

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  • 11/06/2019
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 12/16/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94

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12 More Docket Entries
  • 08/19/2019
  • DocketNotice of Motion AND MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; Filed by: Amir Pazuki Sharif (Defendant)

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  • 08/19/2019
  • DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by: Amir Pazuki Sharif (Defendant)

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  • 03/20/2019
  • DocketNon-Jury Trial scheduled for 09/15/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/20/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/22/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/20/2019
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 03/19/2019
  • DocketComplaint; Filed by: Enrich Financial, Inc. (Plaintiff); As to: Amir Pazuki Sharif (Defendant)

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  • 03/19/2019
  • DocketSummons on Complaint; Issued and Filed by: Enrich Financial, Inc. (Plaintiff); As to: Amir Pazuki Sharif (Defendant)

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  • 03/19/2019
  • DocketCivil Case Cover Sheet; Filed by: Enrich Financial, Inc. (Plaintiff); As to: Amir Pazuki Sharif (Defendant)

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  • 03/19/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/19/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC02722    Hearing Date: December 16, 2019    Dept: 94

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

Defendant Amir Pazuki Sharif’s Demurrer to the First Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, THIRD, SIXTH, SEVENTH, AND TENTH CAUSES OF ACTION; AND OVERRULED AS TO THE FOURTH, FIFTH, EIGHTH AND NINTH CAUSES OF ACTION.

Defendant Amir Pazuki Sharif’s Motion to Strike Portions of the First Amended Complaint is DENIED.

ANALYSIS:

Plaintiff Enrich Financial, Inc. (“Plaintiff”) filed the instant action for breach of contract, common counts, defamation and related claims against Defendant Amir Pazuki Sharif (“Defendant”) on March 19, 2019. Defendant filed a Demurrer and Motion to Strike on August 19, 2019. Prior to the hearing set for September 12, 2019, Plaintiff filed the First Amended Complaint on September 10, 2019. The Court placed the hearing on the Demurrer and Motion to Strike as to the Complaint off calendar.

Defendant filed the Demurrer and Motion to Strike the First Amended Complaint on October 25, 2019. Plaintiff filed its opposition on November 4, 2019. The hearing on the Demurrer and Motion to Strike as to the First Amended Complaint was originally set for November 6, 2019. Upon finding insufficient notice was provided to Plaintiff, the hearing was continued to December 16, 2019.

The Demurer and Motion to Strike the First Amended Complaint are accompanied by a meet and confer declaration pursuant to Code of Civil Procedure section 430.41. (Demurrer, Dillon Decl., Exh. D.)

Legal Standard

Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading.  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within].  Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted.  Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.  Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond.  CCP § 430.10(f). 

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (CCP § 92(d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Finally, CCP section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).)

Demurrer to Complaint

The Complaint alleged causes of action for (1) breach of contract; (2) open book account; (3) money had and received; (4) quantum meruit; (5) unjust enrichment; (6) promissory estoppel; and (7) defamation. Defendant had demurred only to the first, second, fourth and seventh causes of action of the Complaint.

The First Amended Complaint alleges causes of action for (1) breach of contract; (2) open book account; (3) money had and received; (4) defamation; (5) false light; (6) negligent interference with prospective economic advantage; (7) intentional interference with prospective economic advantage; (8) promissory estoppel; (9) quantum meruit; and (10) unjust enrichment.

Defendant demurs to each cause of action for failure to allege facts sufficient to state a cause of action. (Code of Civ. Proc., § 430.10, subd. (e).)

1st Cause of Action for Breach of Contract

Plaintiff must plead the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

Here, a copy of the parties’ contract is attached to the First Amended Complaint. (FAC, Exh. A.) Therefore, contrary to Plaintiff’s argument in opposition, it is settled law that the Court may consider its contents in ruling on the Demurrer. “The rule in such cases is that a general demurrer ‘admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible. [Citation.]’” (Shine v. Williams-Sonoma, Inc. (2018) 23 Cal.App.5th 1070, 1081 (citing Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239, 282 Cal.Rptr. 233.))

Defendant argues that certain terms of the parties’ agreement are so vague as to render its performance unintelligible. Yet he also argues that the terms are sufficient to evidence an oral agreement. Defendant’s argument is contradictory. If the terms are sufficient to evidence an oral agreement, they are sufficient to support a written agreement. In any event, the Court consider the terms as written.

The Contract states that Defendant’s obligation under the agreement are to “negotiate mutually agreeable settlements between [Plaintiff and its creditors]” with respect to certain “Enrolled Debts,” set up of Plaintiff’s case file and helpdesk account, audit of the debt, and development of a negotiation plan to settle the debt. (FAC, Exh. A, ¶¶1, 5.) The terms “negotiate” and “Enrolled Debts” are not defined in the agreement. Nor does the First Amended Complaint allege that the parties had an understanding as to what these terms meant. (Id. at ¶¶9-21.) Plaintiff does allege that it negotiated a debt of $100,000.00 owed to American Express down to $30,000.00 through “preparation, deft negotiation, and complex understanding” of Plaintiff’s financial history and the creditor’s process for lowering debts. (Id. at ¶17.) Again, what “preparation” means in this context is too vague. Plaintiff must allege that the parties understood the meaning of these terms at the time the contract was formed. In it is opposition, Plaintiff contends the contract was for resolution of this debt with American Express, yet nothing in contract evidences that this was the parties’ understanding.

The demurrer to the first cause of action for breach of contract is sustained with leave to amend.

2nd Cause of Action for Open Book Account

An open book account is (1) detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation; (2) shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made; (3) entered in the regular course of business as conducted by such creditor or fiduciary; (4) kept in a reasonably permanent form and manner; and (5) in a bound book, on a sheet or sheets fastened in a book or to backing but detachable therefrom, on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner. (Code Civ. Proc., § 337a.)

Defendant correctly points out that the First Amended Complaint does not allege that the account kept by Plaintiff was the principal record of the parties’ transactions, and does not allege that the statement was entered in Plaintiff’s regular course of business. (FAC, ¶¶22-28.) Nor does Plaintiff allege that the statement is kept in a reasonably permanent form and manner. (Ibid.)

The demurrer to the second cause of action for open book account is therefore sustained with leave to amend.

3rd Cause of Action for Money Had and Received

The elements of a cause of action for money had and received are: (1) Defendant received money that was intended to be used for the benefit of Plaintiff; (2) that the money was not used for the benefit of Plaintiff; and (3) Defendant has not given the money to Plaintiff. (CACI 370.) There are no allegations that Defendant received money intended to be used for Plaintiff’s benefit. Rather, the allegation is that Defendant failed to pay under a contract for services provided.

Examples of situations where this cause of action can be alleged are where money was paid under mistake, fraud or coercion and no enforceable contract was formed (Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460); where plaintiff paid money pursuant to a contract that is void, voidable or unenforceable (First Interstate Bank v. State of Cal.  (1987) 197 Cal.App.3d 627, 635); or where plaintiff elects the remedy of restitution after the defendant’s breach or a failure of consideration (Gutierrez v. Girardi (2011) 194 Cal.App.4th 924, 937). None of these are applicable to a cause of action premised on an enforceable contract that seeks money damages.

The demurrer to the third cause of action is sustained with leave to amend.

4th Cause of Action for Defamation

This appears to be a claim for slander (verbal defamation), which is

“[A] false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

(Cal. Civil Code, § 46.) The First Amended Complaint alleges that Defendant made numerous comments to members of the Persian community that Plaintiff is corrupt and a thief and employed Armenians who are corrupt and thieves. (FAC, ¶¶43-54.) Despite the demurrer to the contrary, these alleged comments clearly imputed to Plaintiff certain characteristics that would injure it in its occupation. Indeed, the First Amended Complaint alleges that Defendant knew these comments would injure Plaintiff in its niche market of the Persian and Armenian communities. (Id. at ¶48.)

The demurrer to the fourth cause of action is overruled.

5th Cause of Action for False Light

An action for false light must allege that the statements made by Defendant are (1) false; (2) unprivileged; (3) published; and (4) exposed Plaintiff to hatred, contempt, ridicule, or obloquy, or which causes person to be shunned or avoided, or which has a tendency to injure person in his occupation. (Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 543, overruled on other grounds); Fellows v. Nat’l Enquirer (1986) 42 Cal.3d 234, 239 (holding that in order to be actionable, the false light must be highly offensive to a reasonable person.)

In Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13, the Court of Appeals ruled that “[w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359.) Here, as discussed above, the defamation cause of action is adequately alleged.

Nor is Plaintiff required to allege malice in support of this cause of action. Malice is only required when the statements are made against a public figure. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721-722, 742.) As Plaintiff does not allege it is a public figure, malice need not be alleged.

The demurrer to the fifth cause of action is overruled.

6th Cause of Action for Negligent Interference with Prospective Economic Advantage

The elements of this cause of action are: (1) an economic relationship between the plaintiff and a third party; (2) that contained a reasonably probable future economic benefit or advantage to plaintiff; (3) defendant knew of the existence of the relationship and was aware, or should have been, that if it did not act with due care, its actions would interfere with the relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage; (4) the defendant was negligent; (5) the negligence caused damage to plaintiff because of actual interference or disruption; and (6) plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship. (North Amer. Chem. Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)

The First Amended Complaint does not allege facts in support of this cause of action. Instead, it makes conclusory statements that simply parrot the elements. (FAC, ¶¶61-69.) There are no ultimate facts alleged showing Plaintiff had economic relationships with third parties that contained a reasonably probable future economic benefit, or that Defendants allegedly defamatory statements were made to those third parties. Nor are there facts that show Plaintiff lost business as a result of Defendant’s conduct.

The demurrer to the sixth cause of action is sustained with leave to amend.

7th Cause of Action for

As with the sixth cause of action, there are no facts alleged to show the existence of economic relationships between Plaintiff and third parties. (FAC, ¶¶70-78.) Simply alleging that it had such relationships is too conclusory to support the cause of action.

The demurrer to the seventh cause of action is sustained with leave to amend.

8th Cause of Action for Promissory Estoppel

A cause of action for promissory estoppel must allege (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 estoppel must be injured by his reliance. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416.) Where breach of contract is also alleged, promissory estoppel can be alleged as an alternative theory of recovery. (State Ready Mix, Inc. v Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1233.)

Defendant’s contention that there is no cause of action for promissory estoppel is incorrect. The demurrer to the eighth cause of action, therefore, is overruled.

9th Cause of Action for Quantum Meruit

A cause of action for quantum meriut requires Plaintiff to allege facts showing (1) Plaintiff’s performance of services, work or labor; (2) at defendant’s request; and (3) circumstances inferring defendant’s promise to pay a reasonable value. (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449-450.) Defendant demurs on the grounds that an action for quantum meruit with sufficient specificity as to the work Plaintiff performed. There is no requirement for specific pleading on a claim for quantum meruit. Plaintiff has alleged that it performed credit and/or debt settlement services for Defendant, for which it was not paid. This is sufficient to allege the cause of action.

Therefore, the demurrer to the ninth cause of action for quantum meruit is overruled.

10th Cause of Action for Unjust Enrichment

Defendant is correct that there is no cause of action for unjust enrichment, but Plaintiff is also correct that this claim can be construed as a cause of action for breach of implied-in-fact contract. The right to restitution or quasi-contractual recovery is based upon unjust enrichment. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1670.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.)

As discussed with respect to the first cause of action, it is not clear from the allegations or the terms of the contract that the parties agreed to their respective obligations. The demurrer to the tenth cause of action, therefore, is also sustained with leave to amend.

Motion to Strike Portions of Complaint

Defendant also moves to strike (1) each cause of action; and (2) the request for exemplary damages. The first request in the motion to strike is improper insofar as it simply reiterates the demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342 (holding that a motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer); see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913.)

Punitive damages are authorized by Civil Code section 3294 in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .”  (Civil Code, § 3294, subd. (a).) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civil Code, § 3294, subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294, subd. (c)(2).) Finally, fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code, § 3294, subd. (c)(3).)

To the extent the order on the Demurrer is overruled as to the causes of action for defamation, false light, promissory estoppel and quantum meruit, those first two claims can support a request for punitive damages. (Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 763.) Here, the allegedly defamatory statements were so egregious—connecting the ethnicities of Plaintiff’s employees to its supposed corruption and thievery—as to support the request.

Conclusion

Defendant Amir Pazuki Sharif’s Demurrer to the First Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, THIRD, SIXTH, SEVENTH, AND TENTH CAUSES OF ACTION; AND OVERRULED AS TO THE FOURTH, FIFTH, EIGHTH AND NINTH CAUSES OF ACTION.

Defendant Amir Pazuki Sharif’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Moving party to give notice.

Case Number: 19STLC02722     Hearing Date: November 06, 2019    Dept: 94

Enrich v. Sharif, et al.

DEMURRER TO FIRST AMENDED COMPLAINT

(CCP § 430.10)

TENTATIVE RULING:

Defendant Amir Pazuki Sharif’s Demurrer to First Amended Complaint is CONTINUED to December 16, 2019 at 10:30 a.m. in Department 94.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of Nov. 3, 2019 [ ] Late [X] None

REPLY: None filed as of Nov. 3, 2019 [ ] Late [X] None

ANALYSIS:

I. Background

This action arose from a dispute over a contract to provide credit and debt settlement services. (FAC ¶ 9.) Plaintiff Enrich Financial, Inc (“Plaintiff”) is in the business of providing credit and debt settlement services, and Defendant Amir Pazuki Sharif (“Defendant”) executed a contract with Plaintiff to provide him with such services on April 24, 2017. (Id. ¶¶ 7-9.) Because Defendant allegedly breached the contract, Plaintiff initiated this action for payment of the remaining balance on the contract on March 19, 2019.

Plaintiff then filed the operative First Amended Complaint (“FAC”) against Defendant on September 10, 2019 for (1) breach of contract, (2) open book account, (3) money had and received, (4) defamation, (5) false light, (6) negligent interference with prospective economic advantage, (7) intentional interference with prospective economic advantage, (8) promissory estoppel, (9) quantum meruit, and (10) unjust enrichment. In response, Defendant filed a Demurrer to the FAC on October 25.

The Court is satisfied with Defendant’s meet-and-confer effort. (Dillon Decl. ¶ 9.) However, because the Demurrer was untimely served and filed, the Court cannot consider the Demurrer at this time.

II. Discussion

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California . . .” (CCP § 1005.)

Here, the Demurrer was served by mail on Plaintiff and filed on October 25, 2019. Therefore, a hearing on the Demurrer may only be had at least 16 court days plus five calendar days from October 25. This means that Defendant is only entitled to have this Demurrer consider by the Court at the earliest on November 21. This period affords Plaintiff time to file an opposition and Defendant to file a reply. “Successful service by mail requires strict compliance with all statutory requirements, including those set forth in section 1013; the failure to comply deprives a court of jurisdiction to act. [Citations.]” (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.) Because Defendant has failed to adhere to the strict requirements of CCP § 1005, the Court has no jurisdiction to consider the Demurrer at this time.

III. Conclusion & Order

In light of the foregoing, the Demurrer is CONTINUED to December 16, 2019 at 10:30 a.m. in Department 94.

Moving party is ordered to give notice.