Mohamed Atef Hassan v. Goma I. Elbiali, et al.

warranty history/summary and within the line items of the repair orders created at Defendant's authorized repair facility. If YOU are having issues determining Plaintiff's Complaints, Plaintiff is willing to meet and confer and list out the specific complaints and the language used to describe them. This should not include any routine or scheduled maintenance items.]" Defendant objected to this request.

The Court rules that Defendant has not established that the objections are meritorious, and the Court orders a further response that are free from the asserted objections. In Donlen v. Ford Motor Co. (2013) 217 Cal.App.4 th 138, 154, the Court of Appeal held that the trial court did not err in refusing to exclude evidence with respect to vehicles other than Plaintiff's vehicle because Plaintiff's expert testimony was properly limited to the same type of transmission involved in Plaintiff's vehicle as well as the other vehicles at issue. Here, the request is limited to pursuing discovery related to similar complaints of defects that relate to the same year, make, and model as Plaintiff's vehicle. Thus, as to Request 30, the motion is granted.

Therefore, Plaintiff's motion is denied as to Requests 8, 16, and 31. Plaintiff's motion is granted as to Requests 23 to 28, and 30. Therefore, Defendant is ordered to serve a further verified response to Requests 23 to 28, and 30 within 20 days of this date. Plaintiff and Defendant's respective requests for sanctions are denied. Plaintiff is ordered to give notice of this ruling.

- SOUTHWEST DISTRICT Honorable Amy N. Carter Wednesday, August 26, 2026 Department M Calendar No. PROCEEDINGS Mohamed Atef Hassan v. Goma I. Elbiali, et al.

1. Goma I. Elbiali, et al.'s Demurrer to Second Amended Complaint TENTATIVE RULING Goma I. Elbiali, et al.'s Demurrer to Second Amended Complaint is sustained with 20 days leave to amend, in part, and overruled, in part.

Background

Plaintiff filed the Complaint on May 27, 2025 and the Second Amended Complaint on April 28, 2026. Plaintiff alleges the following facts. Defendants defrauded Plaintiff out of an ownership interest in a gasoline station. Plaintiff alleges the following causes of action: 1.

Breach of Written Contract; 2. Breach of Oral Agreement; 3. Breach of the Implied Covenant of Good Faith and Fair Dealing; 4. Breach of Fiduciary Duty; 5. Conversion; 6. Unjust Enrichment; 7. Promissory Estoppel; 8. Fraud and Deceit - False Promise; 9. Fraud and Deceit - Intentional Misrepresentation; 10. Fraudulent Transfer (Civ. Code Sec. 3439 et seq.)

11. Set Aside of Deed Based on Wrongful Transfer of Title; 12. Intentional Interference with Contractual Relations; 13. Intentional Interference with Prospective Economic Advantage; 14. Negligent Interference with Prospective Economic Advantage; 15. Negligence; 16. Civil Conspiracy; 17. Unfair and Unlawful Business Practices (Bus. & Prof. Code Sec. 17200, et seq.); 18. Constructive Fraud; 19. Declaratory Relief; 20. Petition for Appointment of Provisional Director (Corp. Code Sec. 308(a)); 21. Conditional Petition for Dissolution (Corp. Code Sec. 1800, et seq.); 22. Equitable Relief (Equitable Lien or Constructive Trust); 23. An Accounting; and 24. Appointment of a Receiver.

Meet and Confer

Defendants filed a meet and confer declaration in sufficient compliance with CCP Sec. 430.41. (Decl., John P. Fitzmorris).

Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.)

Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., Sec. 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.) Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action." (Gressley v.

Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-610.)

Under Code Civil Procedure Sec. 430.10(f), a demurrer may also be sustained if a complaint is "uncertain." Uncertainty exists where a complaint's factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

In the notice of demurrer of both the original version of the demurrer and the "corrected" version of the demurrer, Defendants demurred to the first through seventh causes of action for failure to state sufficient facts and uncertainty. However, then, in the body of the demurrer, Defendants purported to demur to the second, third, fifth through eighth, fifteenth, and twenty-first causes of action. Then, in the conclusion, Defendants merely request the Court to sustain the demurrer to the first and third causes of action.

Plaintiff correctly points out these mistakes. Defendants' Reply does not address these uncertainties at all. However, as it appears that Plaintiff had the opportunity to oppose the demurrer on the merits as to the second, third, fifth through eighth, fifteenth, and twenty-first causes of action, the Court will proceed on the assumption that these are the actual causes of action to which the demurrer is addressed.

Second Cause of Action for Breach of Oral Agreement

Defendant's demurrer to the second cause of action is sustained with 20 days leave to amend. Plaintiff fails to state sufficient facts to state a cause of action. "The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." Coles v. Glaser (2016) 2 Cal.App.5th 384, 391 (internal quotation omitted). Plaintiff alleges that pursuant to an oral contract Defendant Elbiali agreed to assist Plaintiff in the purchase of a gas station.

The Court notes that Defendant's statute of frauds argument is misplaced because the oral agreement was not for the purchase of the gas station itself, but, apparently an alleged agreement wherein Elbiali merely provided his assistance and counsel in Plaintiff's purchase of a gas station. Civ. Code, Sec. 1624(a)(3) states: "An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged."

Here, the agreement is not for the purchase of the gas station itself but for Elbiali to help Plaintiff to purchase a gas station from a third party.

However, Plaintiff has failed to set forth facts to establish sufficient consideration for the contract. Plaintiff alleges the following: "On more than one occasion, Plaintiff offered to pay ELBIALI for his services, but ELIBIALI refused this offer and stated he would assist Plaintiff in the purchase of the gasoline station because ELBIALI wanted to maintain the business relationship with Plaintiff's family who, among other things, managed property for ELBIALI in Egypt. The loss of such relationship would hurt ELBIALI financially.

By rejecting such offer to be paid, ELBIALI waived any right to argue a lack of consideration[.] [...] As further consideration, Plaintiff as the promisee to ELBIALI's promise to assist him purchase the gasoline station, suffered prejudice in that he was in the process of pursuing the purchase of a different gasoline station and he gave up his pursuit of that station based on the representations of ELBIALI[.]" (SAC, P. 51).

Plaintiff failed to provide competent authority to establish that continuing relationship and goodwill with Plaintiff's relatives constitutes the type of consideration sufficient to form a contract. Consideration is "[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise." Civ. Code Sec. 1605. There are no facts to suggest, for example, that by not agreeing to assist Plaintiff, this would somehow deteriorate the business relationship between Defendant and Plaintiff's family. Thus, the demurrer to the second cause of action is sustained with 20 days leave to amend.

Third Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

Defendants' demurrer to the third cause of action is overruled. Plaintiff states sufficient facts to state a cause of action. "Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises. The scope of conduct prohibited by the implied covenant depends on the purposes and express terms of the contract. Although breach of the implied covenant often is pleaded as a separate count, a breach of the implied covenant is necessarily a breach of contract." Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885 (internal citations omitted).

A breach of the covenant of good faith and fair dealing does not give rise to a cause of action separate from a cause of action for breach of the contract containing the covenant. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 327 (stating that "where breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.") "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."

Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395. "The general rule [regarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing." Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374.

Plaintiff has alleged a breach of written contract cause of action to which no demurrer was made. Also, Plaintiff has alleged facts indicating that Defendants engaged in acts designed to deprive Plaintiff of the benefit of the bargain. (SAC, P.P. 62-66). Defendants correctly note that tort damages are generally not available for the breach of the covenant outside of the insurance context. Freeman & Mills, Inc. v. Belcher Oil (1995) 11 Cal.4th 85. However, to the extent that improper tort damages are being alleged, this would be the function of a motion to strike not a demurrer. Defendants' demurrer to the third cause of action is overruled.

Fifth Cause of Action for Conversion

Defendant's demurrer to the fifth cause of action is overruled. Plaintiff states sufficient facts to state a cause of action. Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages...." Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 551. Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved. PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.

Plaintiff has alleged facts meeting each element of the cause of action. (SAC, P.P. 83-90). Defendants argue that the specific property converted is not identified and also presents factual arguments stating that no stocks were ever issued. As to the latter argument, this is a factual issue not proper for resolution with a demurrer. As to the former argument, Plaintiff alleged the following: "Plaintiff owned, possessed, or had an immediate right to possession of specific, identifiable personal property and funds, including cash, revenues, proceeds, inventory, and other personal property of USG#2." (SAC, P. 84).

While it is true that as to money, a specific identifiable sum must be pled, Plaintiff is not required to plead specific facts for purposes of a demurrer outlining every other piece of personal property allegedly converted. Further, to the extent that potentially corporate shares are what is attempted to be alleged as being converted, the following authority is recognized. "It is not necessary to a conversion that there should be a manual taking of the thing in question. It is also well settled in California that shares of corporate stock are subject to an action in conversion."

Mears v. Crocker First Nat. Bank of San Francisco (1948) 84 Cal.App.2d 637, 644 (internal citations and quotations omitted). The demurrer to the fifth cause of action is overruled.

Sixth Cause of Action for Unjust Enrichment

Defendants' demurrer to the sixth cause of action is overruled. Plaintiff states sufficient facts to state a cause of action. Unjust Enrichment is not a cause of action. See Hill v. Roll Int'l Corp. (2011) 195 Cal.App.4th 1295, 1307. "Unjust enrichment is not a cause of action, however, or even a remedy, but rather [...] a general principle, underlying various legal doctrines and remedies. [Citation.] It is synonymous with restitution. [Citation.] Unjust enrichment has also been characterized as describing the result of a failure to make restitution...."

McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 (internal citations and quotations omitted). "Under the law of restitution, [a]n individual is required to make restitution if he or she is unjustly enriched at the expense of another. A person is enriched if the person receives a benefit at another's expense. However, [t]he fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it."

Id. at 389 (internal citations and quotations omitted; emphasis in original).

Thus, the Court may, however, recognize a cause of action based on quasi-contract to obtain the remedy of restitution. See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490. "The elements of an unjust enrichment claim are the receipt of a benefit and [the] unjust retention of the benefit at the expense of another." Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593-94. Here, Plaintiff has alleged sufficient facts that Defendants received a benefit via the facts set forth in the allegations supporting the theories of breach of contract, breach of implied covenant of good faith and fair dealing, and conversion which have been adequately pled. Thus, Plaintiff has alleged a basis to plead the remedy of restitution. Plaintiff is entitled to plead alternative theories of recovery. The demurrer to the sixth cause of action is overruled.

Seventh Cause of Action for Promissory Estoppel

As to the seventh cause of action for Promissory Estoppel, the demurrer is overruled. Plaintiff states sufficient facts to state a cause of action. "The elements of a promissory estoppel claim are (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 the estoppel must be injured by his reliance." Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225. Plaintiff has alleged sufficient facts to meet each element of the cause of action. (SAC, P.P. 99-106).

Plaintiff alleges that Defendant promised assistance in purchasing the gas station and that Plaintiff would be the sole owner of the gas station. Plaintiff alleges reliance on the promise that was reasonable and foreseeable. Plaintiff alleges damages from the reliance. (Id.). Defendants' arguments essentially consist of factual disputes as to the specific promises made and as to whether the reliance was reasonable. The demurrer to the seventh cause of action is overruled.

Eighth Cause of Action for Fraud and Deceit

Defendants' demurrer to the eighth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state sufficient specific facts to state a cause of action. "A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages." Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. "[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he has known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage."

Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.

"Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made." Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff must state facts which "show how, when, where, to whom, and by what means the representations were tendered." Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Plaintiff has failed to state sufficient specific facts of where, how, and by what means the misrepresentations were made by Defendants.

It appears that, perhaps, the representations were made orally but this has not been alleged specifically. Further, while numerous representations were alleged, Plaintiff fails to allege specific facts as to where the representations were made. Thus, Defendants' demurrer to the eighth cause of action is sustained with 20 days leave to amend.

Fifteenth Cause of Action for Negligence

Defendants' demurrer to the fifteenth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state sufficient facts to state a cause of action. "To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries." Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62. Plaintiff alleges the following: "At all relevant times, Defendants ELBIALI and USG#2 owed Plaintiff a duty of reasonable care arising from their business relationship, joint acquisition and operation of the STATION and the REAL PROPERTY, ELBIALI's control over the business and its assets, and ELBIALI's undertaking to manage, safeguard, and administer corporate and partnership affairs affecting Plaintiff's ownership, investment, and personal guaranty." (SAC, P. 172).

Generally, duties that arise from a contractual relationship do not support an action in tort. "[C]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty." Erlich v. Menezes (1999) 21 Cal.4th 543, 551 (internal citations and quotations omitted). Plaintiff has failed to identify a duty of care that arises outside of the contractual relationship. The alleged duties identified above would be duties arising from the contractual relationship identified in the first cause of action for breach of contract. The demurrer to the fifteenth cause of action is sustained with 20 days leave to amend.

Twenty-First Cause of Action for Conditional Petition for Dissolution (Corp. Code Sec. 1800, et seq.)

Defendants' demurrer to the twenty-first cause of action is sustained with 20 days leave to amend. Plaintiff fails to state sufficient facts to state a cause of action. Corp. Code, Sec. 1800 states, in relevant part: "(a) A verified complaint for involuntary dissolution of a corporation on any one or more of the grounds specified in subdivision (b) may be filed in the superior court of the proper county by any of the following persons: (1) One-half or more of the directors in office. (2) A shareholder or shareholders who hold shares representing not less than 33 ¿ percent of (i) the total number of outstanding shares (assuming conversion of any preferred shares convertible into common shares) or (ii) the outstanding common shares or (iii) the equity of the corporation, exclusive in each case of shares owned by persons who have personally participated in any of the transactions enumerated in paragraph (4) of subdivision (b), or any shareholder or shareholders of a close corporation."

The Second Amended Complaint is not verified. Thus, the demurrer to the twenty-first cause of action is sustained with 20 days leave to amend.

Defendant is ordered to give notice of this ruling. | Home -->)" -->