ADEM MUSSA VS. ARTICHOKE JOE'S

Further, the alleged breach on Dec. 5, 2024 is an impossibility. Defendant could not have breached an agreement on Dec. 5, 2024 if the contract did not come into existence until Dec. 6, 2024 as alleged.

The demurrer to the Third Cause of Action (fraud) is SUSTAINED. (Code Civ. Proc. § 430.10(e).) The Complaint purports to allege a fraud cause of action in the form of both (a) a false promise; and (b) a misrepresentation. Fraud, however, must be plead with specificity. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) “General and conclusory allegations” do not suffice. (West v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.780, 792.) Where the fraud is based on an alleged misrepresentation or a false promise, the specificity requirement means plaintiff must allege facts showing how, when, where, to whom, and by what means the false promise or representation was made. (Id. at 793.)

JUNE 26, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

Here, fraud is not plead with specificity. The Complaint alleges that “defendant [falsely] promised to pay plaintiff money won playing card games and money deposited,” and that defendant misrepresented that “Plaintiff was not owed any money,” which Plaintiff alleges was false, because plaintiff had deposited money with defendant. But the Complaint does not allege any of the required details, such as who made the alleged false promise/misrepresentation, when, where, or by what means.

The demurrer to the Fourth Cause of Action (negligence) is SUSTAINED. (Code Civ. Proc. § 430.10(e).) To plead a negligence cause of action, plaintiff must plead facts showing that defendant owed plaintiff a legal duty, that defendant breached the duty, and resulting harm. (Stokes v. Forty Niners Stadium Mgmt. Co. LLC (2024) 107 Cal. App. 5th 1199, 1215.)

Here, plaintiff’s negligence claim is entirely conclusory. Plaintiff alleges that on Dec. 6, 2024, “defendant refused to give plaintiff money won playing card games and money deposited.” But these allegations do not explain or establish that defendant owed or breached a legal duty. Plaintiff provides no facts explaining when and why plaintiff deposited money with defendant, how much money he deposited, whether the money was held in an account, whether it was converted into chips, or otherwise converted, who (representing the defendant) refused to return the money, or why defendant had an obligation to return the money.

Accordingly, the barebones allegations here are too conclusory to state a negligence cause of action.

The demurrer to the Fifth Cause of Action (“intentional tort”) is SUSTAINED. (Code Civ. Proc. § 430.10(e).) This unidentified “intentional tort” cause of action alleges that “Defendant refused to give Plaintiff money won playing card games and money deposited.” California does not recognize a generic, stand-alone cause of action for “intentional tort.” Generally, a plaintiff must identify and plead a recognized cause of action and facts supporting its elements.

Further, although the Court must overrule a demurrer if the Complaint states a cause of action under any theory, regardless of how it is labeled, here, the Complaint does not set forth enough facts establishing the elements of any recognized tort cause of action. The Complaint provides no facts clearly explaining what intentional wrongdoing occurred, who committed it, why it was wrongful, and how the conduct satisfies the elements of a recognized tort cause of action.

Although the alleged facts somewhat resemble a conversion cause of action, pleading a conversion claim requires specific allegations regarding (1) plaintiff’s ownership or right to possession of specific property; (2) defendant’s wrongful dominion over that property; and (3) damages. To plead a conversion cause of action, plaintiff would need to provide more details about the nature of the money that defendant allegedly withheld from plaintiff. (Did the transaction involve chips? A player account? Cash held by the casino? Winnings that had become payable”)

The vague/conclusory allegations here leave the defendant guessing as to what defendant allegedly did that was wrongful.

Leave to Amend.

JUNE 26, 2026 Law and Motion Calendar PAGE 28 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Generally, a plaintiff bears the burden of showing that the defects in the complaint are capable of being cured by amendment. (Vanacore & Assocs., Inc. v. Rosenfeld (2016) 246 Cal.App.4th 438, 454.) The Court, however, exercises a liberal policy with respect to permitting amendments to pleadings, particularly where, as here, the Complaint has not been previously amended. Accordingly, despite the lack of an opposition brief, and considering plaintiff’s self-represented status, the Court sustains the demurrer with leave to amend.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.