Demurrer
the motion and Defendant shall verify whether she opposes the same. Absent opposition, the Court is inclined to grant the motion.
6. CU0002360 Melanie Highsmith, et al. vs. Samuel Miller, et al.
Plaintiff Melanie Lee Highsmith’s unopposed motion for leave to request trial by jury and deposit jury fees pursuant to Code of Civil Procedure section 631(d) is granted.
The California Constitution provides that all civil litigants have the right to trial by jury, but they may waive that right in a manner prescribed by statute. (Cal. Const., art. I, § 16.) The statute implementing this provision, Code of Civil Procedure section 631 (section 631), sets forth various acts and omissions that constitute jury waiver, including failing to make a timely jury demand and failing to timely deposit a jury fee in accordance with statutory requirements. (§ 631, subd. (f).) Waiver does not categorically foreclose trial by jury; a litigant that has waived jury trial may seek relief from the waiver. The trial court has discretion whether to grant relief, on such terms as may be just. (§ 631, subd. (g) ...) TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 773.
In deciding whether it should exercise its discretion to grant relief to a plaintiff who has waived his right to a jury trial, “a court properly considers a host of essentially equitable factors” TriCoast, 15 Cal.5th at 784, including, for example, “whether relief would cause hardship to other parties ...; the timeliness of the request; the party's willingness to comply with applicable jury fee obligations; and the party's reasons for seeking the relief.” Id.. at 783.
At bar, Plaintiff inadvertently failed to post jury fees by the deadline. Zimmerman Decl., ¶ 2. Plaintiff has now posted jury fees. Zimmerman Decl., Ex.
1. Defendants have also requested a jury trial and posted jury fees. Zimmerman Decl., ¶ 4. There is no opposition and no showing of prejudice or hardship to any party. Good cause having been established, the motion is granted.
7. CU0002491 Malin Kumar Ram vs. Rodney Andrews, et al.
Defendant Charles Hasbun’s January 23, 2026, demurrer is sustained as to counts four, six, eight, and nine. Plaintiff is granted leave to amend within ten (10) days of this Court’s order.
Legal Standard
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On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. A court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.
Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary 4
facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-114.
“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted.” Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6
Fourth Cause of Action – Unjust Enrichment
In his demurrer to this claim, Defendant Hasbun argues unjust enrichment is not a cause of action, but rather that restitution may only be awarded under a quasi-contract theory where a defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct, none of which is plead by Plaintiff. The Court agrees that the claim is insufficiently pled.
An unjust enrichment claim is not a cause of action. Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911. The elements of a quasi-contract unjust enrichment claim are: “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. However, “mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.” Ibid.
A quasi-contract unjust enrichment claim “cannot lie where there exists between the parties a valid express contract covering the same subject matter.” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 23. “[R]estitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason.” Ibid. Thus, the complaint must allege “the express contract is void or was rescinded.” Ibid. Plaintiffs may inconsistently plead a breach of contract claim and quasi-contract unjust enrichment claim. Ibid.
At bar, the Court has examined the operative portions of the complaint related to defendant Hasbun and this claim. See Complaint ¶¶ 17, 25, 65-68. The Complaint generally alleges Defendant Hasbun acted as the broker/private money lender representative for the transaction and received a fee to perform services for Plaintiff’s financing and Defendant Sheila Lafaye Dewey obtained a $45,000 loan from Defendant Hasbun and Jacqueline Contreras secured by the Property. Complaint, ¶¶ 17, 26. The Complaint then alleges that Defendants (generically) used Plaintiff’s contribution for closing costs ($34,000) and loan proceeds ($700.000) “to acquire and hold title to the Property for their own benefit” rather than Plaintiff’s benefit. Complaint ¶¶ 67- 68.
These allegations are insufficient. Plaintiff has failed to allege whether he seeks recovery for quasi-contract unjust enrichment, or in lieu of breach of contract damages, and also fails to allege any details as to what purported wrongdoing by defendant Hasbun gives rise to the requested relief. In the absence of allegations of the “actionable wrong, there is no basis for [unjust enrichment] relief." Hill v. Roll Intl Corp. (2011) 195 Cal. App. 4th 1295, 1307. The demurrer as to the fourth cause of action is sustained.
Plaintiff suggests (without detail) that any deficiency may be cured by amendment, but makes no showing of how cure is reasonably possible. This notwithstanding, the Court will allow the same given the liberality generally associated with amendment of pleadings.
Sixth Cause of Action – Breach of Fiduciary Duty
Defendant argues the Complaint fails to state facts sufficient to allege a cause of action for breach of fiduciary duty against Defendant because there are no facts alleged that any breaches of fiduciary duty were committed by Defendant Hasbun. The Court agrees.
“A fiduciary relationship is ‘ “ ‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent. . . .’ ” ’ ” Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 (internal citations omitted).
At bar, once again, the Complaint generally alleges Defendant Hasbun acted as the broker/private money lender representative for the transaction and received a fee to perform services for Plaintiff’s financing and that Defendant Sheila Lafaye Dewey obtained a $45,000 loan from Defendant Hasbun and Jacqueline Contreras secured by the Property. Complaint ¶¶ 17, 26. The Complaint further alleges “Defendant RODNEY ANDREWS and CHARLES HASBUN” knowingly acted “as Plaintiff’s financial consultant, investment adviser, and partner in the acquisition and financing of the real property at issue,” and “Defendant” (without specifying which defendant) consistently represented to Plaintiff he had “special expertise in real estate investment, financing, and project development, and that he would act for Plaintiff’s benefit in structuring the transaction, securing financing, managing the investment, and protecting Plaintiff’s interests.”
Complaint ¶ 80. The Complaint goes on to allege various breaches of fiduciary duty, again without specifying which Defendant allegedly engaged in which breach. Complaint ¶ 83.
Here, the allegations do not clearly delineate the nature of the fiduciary relationship between Plaintiff and Defendant Hasbun or how this Defendant specifically breached any of his purported fiduciary obligations. The demurrer as to the sixth cause of action is sustained.
Plaintiff suggests (without detail) that any deficiency may be cured on amendment. Even though the requisite showing as to leave is lacking, the Court concludes that there is some reasonable possibility the defects can be cured and will permit leave to amend.
Eighth Cause of Action – Violation of Bus. & Prof. Code Section 17200
Defendant argues Plaintiff’s Complaint never identifies Defendant Hasbun as having misrepresented anything about Plaintiff’s investment, or about any of the exhibits attached to the Complaint, nor does the Complaint identify Defendant Hasbun as failing to disclose any information. The Court agrees this claim is inadequately pled.
“A plaintiff alleging unfair business practices ... must state with reasonable particularity the facts supporting the statutory elements of the violation.” See Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 619; see also Mueller v. San Diego Ent. Partners, LLC, 260 F. Supp. 3d 1283, 1299 (S.D. Cal. 2017) (dismissing UCL claim where plaintiff “merely” alleged “‘[b]y reasons of Defendants’ fraudulent, deceptive, and unfair conduct as herein alleged, Defendants have violated California Business and Professions Code section 17200’”).
Here, Plaintiff alleges that “Defendants” (generically) engaged in seven purported unlawful, unfair and fraudulent practices. Complaint ¶ 97. Plaintiff, however, has failed to allege with any particularity what unlawful practices were conducted or promoted by defendant Hasbun specifically. The demurrer as to the eighth cause of action is sustained.
Plaintiff suggests (in a conclusory fashion) that any deficiency may be cured. Even though the requisite showing has not been made, the Court will permit amendment.
Ninth Cause of Action – Conspiracy
Defendant argues the Complaint lacks specific allegations demonstrating the required elements of conspiracy and rather merely provide general and conclusory allegations, and that each participant in an alleged conspiracy must owe the same duty to the plaintiff in the alleged wrong. The Court agrees, at least in part.
“A civil conspiracy however atrocious, does not per se give rise to a cause of action unless a civil wrong has been committed resulting in damage. [Citations].” Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 631 “The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. ... In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity. [Citations.]”
Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44 (parentheses and parallel citations omitted).
At bar, the Complaint alleges “Plaintiff was harmed by the underlying tortious conduct committed by Defendants – including fraud, intentional misrepresentation, conversion, unjust enrichment, and breach of fiduciary duty – and that each Defendant named in this cause of action is liable as a co-conspirator to those torts.” Complaint ¶ 104. The Complaint further alleges, “[t]wo or more Defendants,” including Defendant Hasbun, “formed and operated a coordinated agreement[] to commit the wrongful acts alleged herein.” Complaint ¶ 107. Plaintiff also alleges Defendants’ “cooperation and unity of action show a ‘meeting of the minds,’” and that Defendant Hasbun facilitated the financing and receiving fees as part of the plan. Complaint ¶ 111.
Here, the cause of action for civil conspiracy alleges tortious conduct including fraud, intentional misrepresentation, conversion, unjust enrichment, and breach of fiduciary duty, but fails to allege 7
sufficient facts as to what act or acts were performed by Defendant Hasbun that furthered the common design or conspiracy. The demurrer is well taken.
For the reasons noted previously, the Court will permit leave to amend.
8. CU0000090 Matthew Palleschi, et al. v. Daniel Fraiman Construction, Inc., et al.
The Court previously continued the hearing for this discovery matter from April 10, 2026, to April 17, 2026, at 10:00 a.m., with the following tentative ruling:
The Court grants Plaintiff Palleschi’s motion for an order deeming its Requests for Admission (Set Three) directed to Defendant Daniel Fraiman Construction, Inc. (“DFC, Inc.”) as admitted, unless DFC serves substantially compliant responses before the scheduled hearing. The Court denies, as moot, Plaintiff’s motion for an order directing Defendant DFC, Inc. to provide further responses to Plaintiff’s Requests for Admission (Set Three) and related Plaintiff’s Construction Form Interrogatory No. 326.1. The motion for monetary sanctions against DFI, Inc. and its counsel is granted.
Plaintiff argues the Court should order that the truth of all matters specified in Plaintiff’s requests for admission, set three, be deemed admitted because Defendant DFC, Inc. failed to serve verified responses to Plaintiff’s Requests for Admission, Set Three (“RFAs”). DFC, Inc. argues it served compliant, verified responses and that the motion to deem admitted is inappropriate as a matter of law. Plaintiff has the better argument.
“The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.”1 Code Civ. Proc. § 2033.240(a). “If that party is a .... private corporation . . . one of its officers or agents shall sign the response under oath on behalf of that party.” Code Civ. Proc. § 2033.240(b) (italics supplied).
A “response to [an] RFA ...fail[s] to conform to the statutory prescription” if “it was not signed by a party and was not under oath.” Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1550–1551, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 “Unsworn [or unverified] responses are tantamount to no responses at all.” Allen Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1550-1551, citing Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636 and Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.
A party may move for an order deeming the request for admissions admitted if the party to whom they are directed has failed to serve a timely response. Code Civ. Proc. § 2033.280(b). More specifically:
In the event responses to RFAs are not timely served, the responding party waives any objections thereto (§ 2033.280, subd. (a)), and “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the
1 The exception to this requirement, for responses with only objections, is not at issue. 8