Demurrer (Judge Randall Sherman)


Gulazyan vs. 505 507 LLC
2015-00805706

Defendants? Demurrer to plaintiff?s First Amended Complaint is sustained with 10 days leave to amend as to the 1st and 3rd causes of action, and is overruled as to the 2nd cause of action.? Defendants? Motion to Strike is granted with 10 days leave to amend as to plaintiff?s prayer for attorneys? fees, and is otherwise denied.

Plaintiff?s 1st cause of action for breach of contract fails to allege the terms of the alleged oral contract, including its parties, which are essential components of a breach of contract claim.? Amendment is required before the court can consider the statute of frauds and statute of limitations defenses.? Plaintiff?s 2nd cause of action for breach of fiduciary duty alleges that defendants were collecting rents for plaintiff?s benefit, which is adequate to allege a fiduciary duty.? Plaintiff?s 3rd cause of action for declaratory relief requires him to allege an actual controversy relating to the legal rights and duties of the respective parties under a contract.? Since plaintiff?s breach of contract claim fails as pled, so does his declaratory relief claim.

A motion to strike should not be used to attack an entire cause of action, as the court noted in the case cited by defendants, CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal. App. 4th 1141, 1146.? The plaintiff in a breach of fiduciary duty cause of action may seek emotional distress damages.? Branch v. Homefed Bank (1992) 6 Cal. App. 4th 793, 800.? However, plaintiff sets forth no legal basis for recovering attorneys? fees.

Moving parties are ordered to give notice unless notice is waived.