HIMLEY vs SAMAAN

23CV009868: HIMLEY vs SAMAAN 07/11/2024 Hearing on Demurrer and Motion to Strike Portions of Plaintiff's First Amended Complaint in Department 54

Tentative Ruling

Defendant Nabil Samaan’s (“Defendant”) demurrer and motion to strike plaintiff in pro per Dirk Himley’s (“Plaintiff”) First Amended Complaint (“1AC”) is UNOPPOSED and ruled upon as follows.

Defendant has combined the demurrer and motion to strike into one motion. The motions seek different forms of relief and going forward the Court notes that the preferred procedure is to file separate motions.

Plaintiff filed his Complaint on October 12, 2023, and the 1AC on April 4, 2024. The 1AC alleges causes of action for breach of contract and fraud. Planitiff alleges Defendant agreed to sell Plaintiff real property located at 4021 New York Avenue in Fair Oaks, California, for $380,000; that Plaintiff delivered $60,100 to Defendant; and then Defendant cancelled the agreement and raised the purchase price to $425,000. Plaintiff alleges he is owed his $60,100 plus 5% interest. Attached to the 1AC is a written contract titled, “Residential Income Property Purchase Agreement and Joint Escrow Instructions.”

Defendant demurs on the grounds that none of the terms that Plaintiff alleges Defendant breached are contained in the attached contract. Namely, that Defendant agreed to sell his house for $380,000 less the $60,100 or that $60,100 was given or lent to Defendant at 5% interest. Defendant argues “the contract language recited by Plaintiff is incoherent and untrue because it is unsupported by the attached contract” and that this makes it impossible for Defendant to respond. (Demurrer at 3:16-18.)

To establish a claim for breach of contract, a plaintiff must establish: (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damage to plaintiff.”(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In order to plead a breach of contract cause of action, the plaintiff may either attach a copy of the agreement, set forth the material terms verbatim or plead the legal effect of the agreement. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199.)

Defendant’s argument is essentially that Plaintiff’s allegations are unsupported by the attached contract. This is not a valid basis for demurrer. On demurrer, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the

23CV009868: HIMLEY vs SAMAAN 07/11/2024 Hearing on Demurrer and Motion to Strike Portions of Plaintiff's First Amended Complaint in Department 54

plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) The sole issue raised by a general demurrer is whether the facts pled state a valid cause of action, not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

The 1AC sufficiently alleges the elements to state a claim for breach of contract and the alleged written contract that was breached is attached. Accordingly, Defendant’s demurrer on this ground is OVERRULED.

Defendant’s demurrer based on the ground it is barred by the two-year statute of limitations under Code of Civil Procedure section 339 is also OVERRULED. Defendant argues that because Plaintiff has failed to attach a written contract that states the terms Plaintiff alleges Defendant breached, there is no written contract and the two-year statute of limitations applies. The Court has determined Plaintiff has sufficiently alleged a claim for breach of written contract. Accordingly, Defendant’s argument is not persuasive.

The demurrer for uncertainty is also OVERRULED. The allegations are not so uncertain that Defndant cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2014), sec. 7:85, p. 7(l)-39.)

With respect to the second cause of action for fraud, Defendant moves to strike on the ground that Plaintiff did not seek leave of court to add this cause of action after Defendant’s first demurrer was sustained with leave to amend as to the breach of contract claim.

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order.” (Harris v. Wachovia Mortg, FSB (2010) 185 Cal.App.4th 1018, 1023.) Generally, when a demurrer is sustained with leave to amend, that leave is properly construed as permission to amend the causes of action as to which the demurrer was sustained (Id., at p. 785), to add new causes of action that respond directly to the trial court’s reasons for sustaining the earlier demurrer (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015), or to plead new legal theories based on the same operative facts alleged in the prior complaint. (See McCall v. PacifiCare of Cal., Inc. (2001) 25

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV009868: HIMLEY vs SAMAAN 07/11/2024 Hearing on Demurrer and Motion to Strike Portions of Plaintiff's First Amended Complaint in Department 54

Cal.4th 412, 415.)

The Court agrees that addition of the second cause of action for fraud exceeded the leave granted by the Court on Defendant’s demurrer to the Complaint. The fraud cause of action goes beyond the Court’s reasoning on the demurrer, which was that Plaintiff had failed to attach a written contract or plead the terms verbatim. Accordingly, the motion to strike the second cause of action is GRANTED.

Defendant shall file an Answer on or before August 1, 2024.

Defendant has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312, or further notice is required.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV009868: HIMLEY vs SAMAAN 07/11/2024 Hearing on Demurrer and Motion to Strike Portions of Plaintiff's First Amended Complaint in Department 54

Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

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Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.