Bata Oil Inc. v. Nowyhed

(Stanley Mosk Courthouse: Dept. 516) August 19, 2026 DEPARTMENT 516 LAW AND MOTION RULINGS

Department 516 Hearing Date: August 19, 2026 Case Name: Bata Oil Inc. v. Nowyhed Case No.: 26STCV01166 Matter: Demurrer with Motion to Strike Moving Party: Defendant Saade H. Nowyhed Responding Party: Plaintiff Bata Oil Inc. Tentative Ruling: Defendant Saade H. Nowyhed's demurrer is sustained. Defendant Saade H. Nowyhed's motion to strike is rendered moot.

On January 13, 2026, Plaintiff Bata Oil Inc. ("Plaintiff") filed this action against Defendant Saade H. Nowyhed ("Defendant"). The Complaint alleged one cause of action for fraud against Defendant. On April 13, 2026, the Court sustained Defendant's demurrer with leave to amend. On May 27, 2026, Plaintiff filed a First Amended Complaint ("FAC"). Defendant demurs to Plaintiff's FAC for failure to allege sufficient facts to allege a cause of action against Defendant, and moves to strike portions of the FAC. Plaintiff opposes.

Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.¿(Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law.¿(Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)¿"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ.

Proc., Sec. 452.)¿The court " ' "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . ." ' "¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.¿(Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

"The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court."¿(Code Civ. Proc., Sec. 436.) "Immaterial" or "irrelevant" matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., Sec. 431.10, subds. (b)(1)-(3).)

Analysis

Meet and Confer Pursuant to Code of Civil Procedure section 430.41, "a demurring party is required to meet and confer in person, by telephone, or video conference with the party that filed the pleading. . . ." (Code Civ. Proc. Sec. 430.41, subd. (a).) A moving party in a motion to strike must meet and confer before filing the motion. (Code Civ. Proc. Sec.435.5, subd. (a).) On June 3, 2026, the parties met and conferred over the telephone. (Malakouti Decl., P. 6.) Thus, the parties fulfilled their meet-and-confer obligations.

Demurrer Defendant demurs to Plaintiff's FAC based on standing, an actionable statement of fact, and lack of particularity, and also the economic loss rule bars Plaintiff's cause of action.

Standing "The burden of proving an assignment falls upon the party asserting rights thereunder." (Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292.) Agreements that involve an interest in real property must be written because it falls within the Statute of Frauds. (See Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 553, as modified on denial of reh'g (Nov. 3, 2008).) "A written contract may be pleaded either by its terms--set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference--or by its legal effect. [Citation.]

In order to plead a contract by its legal effect, plaintiff must "allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions." (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 (citation omitted).)

Defendant argues that the FAC is sham pleading because Plaintiff attached Exhibit B only after the Court sustained Defendant's demurrer. The Court is not persuaded by Defendant's argument. Here, Plaintiff did not make substantive changes, it added more information to address the defects that the Court identified at the previous hearing. Defendant also argues that the memorandum is insufficient because a memorandum is not a contract; thus, the statute of frauds applies. "A memorandum satisfies the statute of frauds if it identifies the subject of the parties' agreement, shows that they made a contract, and states the essential contract terms with reasonable certainty." (Sterling v.

Taylor (2007) 40 Cal.4th 757, 766.) Here, the Memorandum identifies the terms. (FAC, Ex. B.) Thus, the memorandum is sufficient at this stage of the proceedings. The Court will not make an evidentiary finding as to when the Memorandum was drafted for purposes of demurrer. The Court overrules Defendant's demurrer on the grounds of standing.

Promissory Fraud "The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) "Promissory fraud" is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citation.]

An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract." (Ibid.) "In such cases, the plaintiff's claim does not depend upon whether the defendant's promise is ultimately enforceable as a contract. 'If it is enforceable, the [plaintiff] ... has a cause of action in tort as an alternative at least, and perhaps in some instances in addition to his cause of action on the contract.'" (Ibid.)

Defendant argues that Plaintiff has not met the particularity fraud requirement to allege a viable cause of action. Defendant contends that the FAC does not have specific allegations regarding the oral representations that were allegedly made. The Court agrees; this is a conclusory allegation. (FAC, P. 19.) Defendant also asserts that Plaintiff fails to plead an actionable misrepresentation. Defendant contends that the agreement between the DTLA and Bata was vague and a future promise. "To be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages." (Ladas v.

California State Auto. Assn. (1993) 19 Cal.App.4th 761, 769.) Here, the FAC alleges that Bata and DTLA agreed to continue operating "in the same manner during the escrow period," but Defendant "did not have the intention" to operate in the same manner. (FAC, P.P. 14, 19.) The FAC also alleges that Defendant and DTLA operated in a manner to "deplete and overprice all inventory of goods and motor fuel sold to the public" to cause customers to stop purchasing from the business. (FAC, P. 18.)

"An actionable misrepresentation must be made about past or existing facts; statements about future events are merely deemed options." (San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 29-30.) The Court previously addressed Defendant's argument regarding the issue that the alleged misrepresentation was regarding future events and not a past event. (April 30, 2026, Minute Order.) Plaintiff's opposition does not address this argument. ""[S]omething more than nonperformance is required to prove the defendant's intent not to perform his promise."" (Tenzer v.

Superscope, Inc. (1985) 39 Cal.3d 18, 30.) "To be sure, fraudulent intent must often be established by circumstantial evidence.... However, if [a] plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury." (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.) The FAC makes only one allegation of post-contract conduct to allege intent. This is insufficient to allege a viable cause of action.

Thus, the Court sustains Defendant's demurrer for failure to allege sufficient facts. In the absence of meaningful argument in Plaintiff's opposition to dispute Defendant's demurrer, the Court will not address the remaining economic loss argument.

Motion to Strike Defendant also moves to strike paragraph 21 of Plaintiff's FAC and prayer for exemplary damages. Defendant's motion to strike is rendered moot because the Court has sustained its demurrer as to Plaintiff's sole cause of action. Thus, Defendant's motion to strike is rendered moot.

Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not "sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment"]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 ["A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment."]; Vaccaro v.

Kaiman (1998) 63 Cal.App.4th 761, 768 ["When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend."].) The burden is on the complainant to show the Court that the pleading can be successfully amended. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

The Court finds that Plaintiff has not met its burden of showing the Court that the pleading can be amended. This is the second demurrer on Plaintiff's pleading, and Plaintiff failed to address the previous defects that the Court previously raised. In opposition, Plaintiff did not request leave to amend nor provide a meaningful opposition to Defendant's arguments. Thus, the Court denies leave to amend.

Conclusion

Defendant Saade H. Nowyhed's demurrer is sustained without leave to amend. Defendant Saade H. Nowyhed's motion to strike is rendered moot.

Case Number: 26STCV13825 Hearing Date: August 19, 2026 Dept: 516 Judge James I. Montgomery Department 516 Hearing Date: August 19, 2026 Case Name: Urbina v. Mobilitas Insurance Company, et al. Case No.: 26STCV13825 Matter: Motion to Compel Arbitration Moving Party: Petitioner Juan Carlos Garcia Urbina Responding Party: Respondent United States Fire Insurance Company Tentative Ruling: Petitioner Juan Carlos Garcia Urbina's motion is denied.

On April 30, 2026, Petitioner Juan Carlos Garcia Urbina ("Petitioner") filed his petition against Respondents Mobilitas Insurance Company ("Mobilitas") and United States Fire Insurance Company ("Fire Insurance"). On May 7, 2026, Petitioner filed a Motion to Compel A Single Joint Arbitration. On July 9, 2026, the Court continued the hearing on the motion because Petitioner did not properly serve respondents. At the hearing the Court addressed Mobilitas's opposition in a tentative. Petitioner moves for the Court to compel a joint arbitration proceeding with Mobilitas and Fire Insurance. Fire Insurance opposes.

Legal Standard

Code of Civil Procedure section 1281.3 states that: A party to an