Licuaco v. Fawaz

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1) [9:389] Special requirements where client served by mail: When the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed (i.e., by conversation, telephone, or mail with return receipt requested). [CRC 3.1362(d)]

Merely stating the papers were sent to the client's last known address and were not returned will not itself be sufficient to demonstrate that the address is current. [CRC 3.1362(d)]

[9:390] Reserved.

2) [9:391] Where client's address unknown: If the attorney is unable to confirm that the client's address is current, the attorney's declaration must state what was done in attempting to obtain a current address, such as:

— mailing the motion papers to the client's last known address with return receipt requested;

— calling the client's last known telephone number(s);

— contacting persons familiar with the client (specify);

— conducting a search (describe); and

— other efforts, which must be specified. [CRC 3.1362(d)]

Counsel must also justify why counsel should be relieved even if the client cannot be served with the moving papers.

If a future motion is filed, counsel should read this order and the California Rules of Court, and comply.

Moving attorney shall provide notice of this ruling.

51. Licuaco v. Cross-Defendant Cecile Licuaco’s demurrer to the 1st through Fawaz the 5th causes of action of the cross-complaint of Khaled Fawaz is SUSTAINED in its entirety with ten days leave to 2025- amend. 01477063 1st cause of action for Fraud

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Generally, fraud must be pled specifically; general and conclusory allegations do not suffice. Murphy v. BDO Seidman (2003) 113 Cal.App.4th 687. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. Id.

Here, Fawaz contends he has sufficiently alleged the fraud in paragraphs 19, 20, 23, 24, 25 and 27. The referenced paragraphs are not contained in the fraud cause of action itself, but are incorporated into the fraud claim by reference.

The key issue is that the fraud claim itself must contain or incorporate allegations with sufficient particularity to meet the specificity requirement. The facts constituting every element of fraud must be alleged with particularity. The policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect when fraud is at issue. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167.

Here, only the alleged misrepresentation that is pled with any specificity is that the HMO/PPO issue, but the alleged fraud incorporates additional non-specific false promises.

2nd cause of action for bad faith misrepresentation

California does not recognize a freestanding tort called “bad faith misrepresentation”; rather, misrepresentation claims are statutory forms of fraud and deceit under Civil Code §§ 1709 and 1710, while “bad faith” is a distinct cause of action rooted in the implied covenant of good faith and fair dealing.

While negligent misrepresentation falls within the statutory definition of fraud and deceit, it is treated as a separate theory of liability from intentional misrepresentation (actual fraud). See Seneca Communications, Inc. v. International Bank of California (1980) 103 Cal.App.3d 541. By contrast, intentional misrepresentation (fraud) requires scienter — a knowing falsehood — which negligent misrepresentation does not. Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468.

“Bad faith”, on the other hand, refers to the tortious breach of the implied covenant of good faith and fair dealing — not to misrepresentation. Hand v. Farmers Ins. Exchange (1994) 23 Cal.App.4th 1847. This bad faith tort is most commonly recognized in the insurance context, where an insurer’s subjective bad intentions. Bosetti v. United States Life Ins. Co. in the City of New York (2009) 175 Cal.App.4th 1208. A

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cause of action for bad faith rests on the contractual relationship and the implied covenant, not on a false statement of fact, and courts have treated bad faith and misrepresentation as separate and distinct causes of action. See Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385.

Fawaz’s allegations in the second cause of action fail to identify the legal theory on which they are based.

3rd cause of action for negligence

The allegation that a defendant failed to ensure a "smooth transition of the Practice as promised, negotiated for, and agreed upon" (¶ 43) is framed in contractual terms. Generally, where the negligent performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764. This means that framing a duty solely by reference to what was “promised” and “agreed upon” generally does not, standing alone, establish a tort duty of care.

The cross-complaint fails to allege facts showing a duty of care independent of the contract.

4th cause of action for unjust enrichment

The elements of a cause of action for unjust enrichment are simply stated as receipt of a benefit and unjust retention of the benefit at the expense of another. Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230. The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched. Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105.

The allegations here — that Cross-Defendants wrongfully obtained money and intellectual property through lying, false statements, and fraud — align with this recognized basis for unjust enrichment.

Nevertheless, a critical limitation applies: unjust enrichment is an equitable remedy, and equitable relief such as unjust enrichment will not be given when the plaintiff's remedies at law are adequate. Sepanossian v. National Ready Mixed Concrete (2023) 97 Cal.App.5th 192. Where, as here, an

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unjust enrichment claim merely incorporates allegations that are derivative of another statutory or legal claim that itself makes restitution available, a separate unjust enrichment cause of action may be dismissed. As the fraud allegations are pled as a standalone cause of action seeking the same relief, sustaining the demurrer is appropriate. Lebrun v. CBS Television Studios, Inc. (2021) 68 Cal.App.5th 199.

5th cause of action for unfair competition

As Fawaz has failed to sufficiently allege any underlying claim, the claim asserted under California Business and Professions Code § 17200 fails.

The cross-complaint should allege specific facts such as: what representations were made to the public (and whether they were written, oral, or in advertisements); when and where these representations occurred; what made them false or misleading; how the retention of monies constituted a deceptive business practice; and how members of the public were likely to be deceived by the defendant's conduct.

Without such factual allegations, the claim amounts to little more than a recitation of the statutory language, which is insufficient to survive a demurrer.

The case management conference is continued to November 16, 2026 at 9:00 a.m. in Department C28.

Licuaco shall give notice of this ruling.

52. Nguyen v. Defendant The City of Santa Ana’s demurrer to Plaintiffs City of Santa Khanh and Bang Nguyen’s Third Amended Complaint is Ana OVERRULED. Within 10 days of this ruling, Defendant shall file an Answer to the Third Amended Complaint. 2024- 01405366 In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of