Sather v. Sather

CASE NUMBER: 26CV-0210352 Tentative Ruling on Demurrer and Motion to Strike: Defendant Barry Sather demurs to all causes of action alleged in the Complaint filed by Plaintiff Matthew Sather and moves to strike certain portions from the Complaint. Plaintiff was properly noticed and did not file an Opposition.

Meet and Confer. Defendant provided sufficient evidence of meet and confer efforts prior to filing the Demurrer and Motion to Strike.

Merits. A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. A demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). The Court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal. App. 4th 435, 438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.

A motion to strike can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Ranchos v. Atchison Topeka & Santa Fe Railway (1981) 19 Cal. App. 3d 24. It is proper for the Court to strike any irrelevant, false or improper matter. CCP § 436(a).

First Cause of Action – Unjust Enrichment. The statute of limitations for an unjust enrichment claim is based on the underlying wrong. When based on an oral promise, as alleged here, an unjust enrichment claim is subject to the two year statute of limitations set forth in CCP § 339, subdivision 1. Plaintiff alleges in ¶ 30.c that the promise was made in June of 2018. Plaintiff further alleges in ¶ 15-17 that the oral promise was revoked in early January 2023. Because this Complaint was filed on April 13, 2026, the First Cause of Action was filed outside the applicable statute of limitations and the demurrer is SUSTAINED without leave to amend.

Second Cause of Action – Breach of Oral Contract. The statute of limitations for an oral contract is two years per CCP § 339 subdivision 1. As noted above, the alleged oral promise was revoked in early January 2023. Therefore the Second Cause of Action was filed outside the applicable statute of limitations and the demurrer is SUSTAINED without leave to amend.

Third Cause of Action – Promissory Estoppel. The statute of limitation for promissory estoppel based on an oral promise is two years. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal. App. 5th 1207. The oral promise is alleged to have been revoked in early January 2023. The Third Cause of Action was filed outside the applicable statute of limitations and the demurrer is SUSTAINED without leave to amend.

Fourth Cause of Action – Fraud. Agreements to sell real property must be in writing. CCP § 1971. Court have recognized an exception to the statute of frauds in cases of fraud, however, in order to prevail on action for a fraudulent promise, a plaintiff must produce evidence of the promisor’s intent to mislead. Tenzer v. Superscope (1985) 39 Cal. 3d 18, 30. Plaintiff does not allege an intent to defraud when the oral promises were made in 2014 and 2018. Therefore, Plaintiff has failed to plead the elements required for the alleged fraud claim and the demurrer to the Fourth Cause of Action is SUSTAINED. Plaintiff did not respond to the Demurrer and has therefore not sought leave to amend or explained how amendment could cure the defect. Absent an appearance by Plaintiff and an explanation for how the defect can be cured, leave to amend is not granted.

Fifth Cause of Action – Constructive Trust. An action seeking to establish a constructive trust is subject to the limitation period of the underlying substantive right. Day v. Greene (1963) 59, Cal. 2d 4040. The underlying substantive right is based on an oral contract, therefore, CCP § 339 subdivision 1 applies. The Complaint was filed more than two years after the revocation of the oral promise, therefore, Fifth Cause of Action was filed outside the applicable statute of limitations and the demurrer is SUSTAINED without leave to amend.

Sixth Cause of Action – Retaliatory Eviction. Retaliatory eviction occurs when a landlord retaliates against the tenant in specific circumstances. If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following: (1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability. (2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability. (3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice. (4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability. (5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

In each instance, the 180-day period shall run from the latest applicable date referred to in paragraphs (1) to (5), inclusive.

CCP § 1942.5(a). Plaintiff alleges the Sixth Cause of Action that Plaintiff disclosed to Defendant that Defendant had sexually abused Plaintiff and that after this disclosure, Defendant retaliated by filing an unlawful detainer action. The alleged conduct does not fall within the scope of CCP § 1942.5. No other reason for the retaliation is alleged. Therefore, Plaintiff has failed to plead the elements required for the retaliatory eviction claim and the demurrer to the Sixth Cause of Action is SUSTAINED. Plaintiff did not respond to the Demurrer and has therefore not sought leave to amend or explained how amendment could cure the defect. Absent an appearance by Plaintiff and an explanation for how the defect can be cured, leave to amend is not granted.

Motion to Strike. Defendant moves to strike paragraphs 10a, 18a, 19-22, and paragraphs 1-13 of the Sixth Cause of Action. Paragraph 10a forms the basis for the retaliatory eviction claim alleged. Paragraph 18a relates to Plaintiff’s mother who is not named as a party in this matter. Nothing in paragraph 18 forms an element or basis for any alleged cause of action. There is nothing improper in paragraphs 19-22. Paragraphs 1-13 form the basis of the retaliatory eviction claim. Only paragraph 18a will be ordered stricken.

The Demurrer is SUSTAINED without leave to amend except as noted above for the Fourth and Sixth Causes of Action. Absent an appearance and the showing necessary for leave to amend, leave to amend will also be denied as to the Fourth and Sixth Causes of Action. The Motion to Strike is GRANTED as to paragraph 18a and DENIED as to the balance. Defendant submitted a proposed Order that will be modified to reflect the Court’s ruling. Absent leave to amend being granted, the clerk is directed to dismiss the Complaint, vacate any future dates, and close the file.

SWAIN VS. MARUTI WVRVL OIL INC, ET AL.