Mkhitarian v. Mustafiz

Plaintiff has not waived the defect in service by, for example, filing an opposition to the motion.

Given the defect in service, the Court cannot consider the merits of the motion. The motion of defendant Xian Li for an order requiring plaintiff Jun Li to furnish security under Corp. Code § 17709.02 is DENIED for improper electronic service on the self-represented plaintiff.

6. Potter v. Gustafson 26-1554580 (Continued) 7. Mkhitarian v. Mustafiz 25-1475287 Before the Court is a demurrer by defendant Tanim Mustafiz (Defendant) on the Second Amended Complaint (SAC) of plaintiff Albert Mkhitarian (Plaintiff). For the reasons set forth below, the demurrer is SUSTAINED as to the 1st cause of action without leave to amend.

Defendant shall file his answer, if any, within 10 days.

Plaintiff failed to cure the defect in the prior pleading. In the SAC, Plaintiff alleges Defendant was an equal shareholder of TestJet with Plaintiff, and adds that Defendant “was also an officer and director of TestJet, and, by reason of such, owed fiduciary duties to Plaintiff.” (SAC ¶ 21.) These facts are still insufficient to establish the existence of a fiduciary relationship giving rise to breach of fiduciary duty. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal. App. 4th 445, 483 [elements].)

Corporate officers and directors stand in a fiduciary relation to both the corporation and its stockholders. (Bancroft-Whitney Co. v. Glen (1966) 64 Cal.2d 327, 345.) There is a “strong public interest in assuring that corporate officers, directors, majority shareholders and others are faithful to their fiduciary obligations to minority shareholders.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395 [emphasis added], citing Steinberg v. Amplica, Inc. (1986) 42 Cal.3d 1198, 1210; see e.g., Persson v.

Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1146-1147, 1156-1162 [no fiduciary duty arose from a de facto partnership or voluntary assumption of fiduciary obligations, despite the defendant’s status as president, secretary and operational manner].) Here, however, Plaintiff does not allege status as a minority shareholder or other circumstances that may give rise to a fiduciary duty of a corporate officer or director.

Nor does Plaintiff allege sufficient facts to establish a confidential relationship giving rise to a fiduciary duty. (Richelle v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 271 [elements].) Superior knowledge or unequal access to an allegedly concealed fact might support Plaintiff’s separate fraud theories, but it does not establish the vulnerability required for a confidential relationship. There is no stronger or weaker party under the circumstances of this case. The SAC alleges equal ownership and repeatedly refers to the parties as business “partners,” suggesting equal power. “Before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must

enter into a relationship which imposes that undertaking as a matter of law.” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386.) There are no facts to suggest that Defendant took Plaintiff’s capital contributions with the view to acting primarily for the benefit of Plaintiff.

The demurrer is therefore SUSTAINED without leave to amend.

Counsel for Defendant shall give notice of this ruling.

8. Waypoint Aviation Services v. Transcontinental Air LLC 25-1495879 Before the Court is a demurrer and motion to strike filed by defendant Transcontinental Air, LLC to the first amended complaint (FAC) of plaintiff Waypoint Aviation Services. For the reasons set forth below, the demurrer is OVERRULED in its entirety and the motion to strike is GRANTED with 10 days’ leave to amend.

Demurrer

1st cause of action (breach of contract): The FAC states sufficient facts to state a cause of action. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; FAC ¶¶ 5-8, Exs. A, B.)

The Court finds the statute of frauds does not apply. The statute of frauds provides that “[a]n agreement that by its terms is not to be performed within a year from the making thereof” is invalid unless it is memorialized in writing and “subscribed by the party to be charged.” (Civ. Code, § 1624(a)(1).) The terms of the contract itself must reveal that it cannot be performed within one year. (White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343; Rest. 2d Contracts §§ 110(1)(e), 130.) Here, there are no terms in the alleged contract or exhibits attached to the FAC that services and/or payment must be completed in one year.

The fact that the services were actually performed over a period of more year is irrelevant. (Rest.2d, Contracts § 130, Comment a [“the enforceability of a contract under the one-year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities”].)

The Court also finds Business and Professions Code section 9793 does not bar Plaintiff’s claims. The Aircraft Repair Lien Law (Bus. & Prof. Code §§ 9790 et. seq. (“Lien Law”)) regulate repairs and services provided to owners of noncommercial aircraft and authorizes a nonpossessory lien in favor of aircraft repairpersons, as long as their services are performed in accordance with mandatory statutory requirements. (13 Witkin, Summary of Cal. Law, 11th edition | Personal Property (May 2026 update) § 253; 4 Witkin, Summary of Cal.

Law, 11th edition | Sales (May 2026 update) § 348.) Failure to comply with Business and Professions Code § 9793 et. seq. precludes a repairperson from obtaining a lien on an aircraft for compensation for services rendered. (Bus. & Prof. Code § 9798.1, subd. (h).) There is nothing in the Lien Law that precludes a repairperson from pursuing a civil action for damages arising out of the owner’s failure to pay for services. Defendant fails to cite to any authority – statutory or case law – that supports its position that the Lien Law bars such claims.

The demurrer is thus OVERRULED as to this cause of action.