Estate of Svetlana Leonidova Dayal vs Logix Federal Credit Union et al

Case Number

24CV01984

Case Type

Hearing Date / Time

Mon, 06/02/2025 - 10:00

Nature of Proceedings

1) Demurrer to Pltiff's First Amended Complaint; 2) Motion: Compel Discovery Responses; 3) Motion: Protective Order; 4) Motion: Strike Portions of First Amended Complaint

Tentative Ruling

Estate of Svetlana Leonidovna Dayal v. Logix Federal Credit Union, et al. 

Case No. 24CV01984

           

Hearing Date: June 2, 2025                                                    

HEARING:              (1)       Demurrer of Defendants to First Amended Complaint

                             (2)       Motion of Defendants to Strike Portions of First Amended Complaint

                                    (3)       Motion of Plaintiff to Compel Further Responses to Discovery

                             (4)       Motion of Defendants for Protective Order

ATTORNEYS:        For Plaintiff Estate of Svetlana Leonidovna Dayal: Self-represented

                                    For Defendants Logix Federal Credit Union, Ana Fonseca, Timothy Jensen, and Wendy Vannoy: Elizabeth M. Sanguinetti, Litchfield Cavo LLP; Mark K. Worthge, Kaufman Dolowich

                                   

TENTATIVE RULING:

(1)       The general and special demurrers of defendants to plaintiff’s first amended complaint are sustained, with leave to amend, as to each cause of action and as to the complaint as a whole. Plaintiff shall file and serve her second amended complaint on or before June 17, 2025.

(2)       Because the court sustains the demurrers to plaintiff’s first amended complaint, defendants’ motion to strike is denied as moot.

(3)       The motion of defendants for a protective order is granted in part. Discovery in this action is stayed, and no further discovery may be served or taken, until any defendant files and serves an answer to plaintiff’s then-operative complaint or until further order of the court. No party shall be required to respond to any discovery requests outstanding as of the date of this hearing, if any, and no discovery motions shall be filed or served, until at least 10 court days following the lifting of the discovery stay.

(4)       The  motion of plaintiff to compel further responses to discovery is denied. This denial is without prejudice to an appropriately identified plaintiff propounding discovery (whether or not covering the same subject as the discovery at issue in this motion) following the lifting of the discovery stay.

Background:

(1)       Allegations of First Amended Complaint

On November 23, 2021, plaintiff “Estate of Svetlana Leonidovna Dayal” (Dayal) purchased a 2020 BMW X6 (the Vehicle) from a dealership, Autobakers. (First Amended Complaint [FAC], ¶ 15.) The price of the Vehicle was $22,498.00 of which $22,444.45 was to be paid by a loan from defendant Logix Federal Credit Union (Logix). (FAC, ¶¶ 16, 17 & exhibit A.) The registration for the Vehicle lists Logix as a lienholder. (FAC, exhibit A.) Dayal issued a promissory note and executed a security agreement (collectively, the Note). (FAC, ¶ 18 & exhibit B.) (Note: The pages of the FAC following page 17 are not consecutively numbered as required by Cal. Rules of Court, rule 2.109. Citations to pages of exhibits, in the FAC and in other documents, are to the pdf page of the document as electronically filed with the court.)

Dayal transferred the Note to Logix, but Logix did not deliver money to Dayal in exchange for the Note. (FAC, ¶ 19.) Dayal has no evidence that Logix delivered money to the seller on behalf of Dayal and not merely a book-entry credit or some other form of credit issuance to the seller. (FAC, ¶ 20.) In conjunction with the Note, Logix assigned an account number and made a book-entry credit to the designated account after taking the Note for face value. (FAC, ¶ 21.)

By letter dated December 18, 2023, to defendant Timothy Jensen, the chief financial officer of Logix, Dayal broadly demanded that Logix close the account as paid in full. (FAC, ¶¶ 4, 23-28 & exhibit C.) Counsel for Logix responded that Dayal did not send anything along with the letter constituting payment and otherwise rejected Dayal’s demand. (FAC, ¶ 31 & exhibit D.)

On March 13, 2024, Dayal tendered a negotiable instrument payable to Logix in the amount of $14,275.22, which was the amount that a representative of Logix orally requested for payment in full during a telephone call with Dayal. (FAC, ¶ 34.) The “negotiable instrument” was in the form of a demand note identified as “payment in full.” (FAC, ¶ 34 & exhibit E.)

Logix did not raise any objection to the March 13 instrument nor did Logix contact Dayal regarding the letter. (FAC, ¶ 38.)

On March 20, 2024, the Vehicle was taken. (FAC, ¶ 39.) On March 23, Dayal received certified mail from Logix stating that Logix had taken the Vehicle at the direction of defendant Wendy Vannoy, a Senior Repossession Specialist. (FAC, ¶¶ 40 & exhibit F.)

(2)       Procedural History

On April 9, 2024, plaintiff “Estate of Svetlana Leonidovna Dayal” filed the original complaint in this action against defendants Logix Federal Credit Union, Ana Fonseca, Timothy Jensen, and Wendy Vannoy. The complaint asserted six causes of action: (1) conversion; (2) breach of contract; (3) recoupment; (4) defamation; (5) punitive damages; and (6) unjust enrichment. Plaintiff appears in this action self-represented.

On May 17, 2024, defendants filed their motion to compel arbitration. On September 9, 2024, the court denied the motion to compel arbitration.

On October 9, 2024, defendants filed their demurrer to the original complaint and concurrently filed a motion to strike portions of the complaint. The demurrer was noticed for hearing on January 6, 2025.

On November 15, 2024, defendants filed their motion to preclude Svetlana Leonidovna Dayal from acting as counsel for plaintiff in this matter. Defendants argued that a legal estate must be represented by counsel and may not be self-represented. Defendants concurrently filed a motion for protective order to stay discovery until the issue of self-representation is resolved. These motions were originally noticed for hearing on February 24, 2025, and were and are opposed by plaintiff.

On December 5, 2024, without first obtaining leave of court, plaintiff filed the FAC. The FAC continues to identify the plaintiff as “Estate of Svetlana Leonidovna Dayal.” The FAC asserts six causes of action: (1) conversion; (2) breach of contract; (3) recoupment; (4) defamation; (5) fraudulent concealment; and (6) unjust enrichment. The difference from the original complaint is the fifth cause of action for fraudulent concealment. The filing of the FAC mooted the demurrer and motion to strike as to the original complaint. In ordering these motions off calendar, the court further ordered that any response to the FAC was due March 1, 2025.

On December 19, 2024, plaintiff filed a motion to compel further responses to the discovery that is also the subject of the defendants’ motion for protective order. This motion is opposed by defendants on the grounds including those asserted in the motion for protective order.

On February 24, 2025, the court held a hearing on: (1) the defendants’ motion to preclude self-representation; (2) the defendants’ motion for protective order; and (3) the plaintiff’s motion to compel further responses to discovery. At the hearing, the court continued the hearing on the discovery motions with the following analysis and order:

“Underlying all of these is what amounts a mistaken identification. Plaintiff’s original and first amended complaint (FAC, the operative pleading) identifies the plaintiff as ‘Estate of Svetlana Leonidovna Dayal’ and the person appearing for the plaintiff is Svetlana Leonidovna Dayal, ‘Executor for the Estate of Svetlana Leonidovna Dayal.’ Defendants’ point is that an executor of an estate may not be self- represented and may only appear by counsel. (City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 780.) This is because an executor is a person appearing in a representative capacity on behalf of a decedent’s estate and not on their own behalf. (Id. at pp. 779-780.)

“In opposition to defendants’ motion to preclude the plaintiff from appearing self-represented, the plaintiff states that she is ‘acting in her capacity as the executor and principal party in interest of her own “living estate.” ’ (Opposition, at p. 2.) A review of the FAC demonstrates that the transactions at issue are all transactions with the plaintiff in her personal capacity. Plaintiff appears, albeit not clearly, to indicate that she has some form of revocable trust which is incorrectly named in the FAC as an ‘estate.’ (E.g., FAC, ¶¶ 1, 16-18 & exhibits A, B.) ‘[A] sole trustee of a revocable living trust who is also the sole settlor and beneficiary of the trust assets he or she is charged to protect does not appear in court proceedings concerning the trust in a representative capacity. Instead, he or she properly acts in propria persona and does not violate the bar against practicing law without a license. ([Bus. & Prof. Code,]§ 6125.)’ (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519–1520.)

“The problem presented by these motions thus is an apparent misuse of legal terminology by the plaintiff. (The court notes that there is nothing before the court other than this apparent misuse of terminology to suggest that any legal ‘estate’ is involved or that the plaintiff occupies the status of “executor” based upon any probate proceeding.) The motion to preclude the plaintiff from appearing self-represented will therefore be denied. It may be necessary for the plaintiff to amend the FAC to correctly reflect her status so as to avoid this confusion in the future.

“Insofar as the motion for a protective order and the motion to compel depend upon resolving the issue of counsel, the parties are ordered to further meet and confer regarding this discovery dispute, in person, by telephone, or by video conference, on or before March 10, 2025. Each party shall file and serve a report to the court identifying all remaining outstanding issues, if any, on or before March 24, 2025. The motion to compel and the motion for a protective order will be continued to April 7, 2025.” (Minute Order, filed Feb. 24, 2025, at pp. 1-2.)

On March 10, 2025, plaintiff filed a “Notice of Meet and Confer Report and Estoppel.” This report states that defendants sent a proposed stipulation to file a second amended complaint. (Plaintiff’s Report, exhibit A.) The proposed stipulation grants leave for plaintiff to file a second amended complaint consistent with the court’s February 24 order, and set a schedule for responding to the soon-to-be-filed second amended complaint. Plaintiff responded by conditionally accepting the proposed stipulation, but on various conditions including that “Defendants must first provide the evidence they are relying upon to claim that I am acting in a representative capacity for a third party, or that I am otherwise not the real party in interest. If such evidence exists, I request that you provide it in full, along with any supporting documentation, no later than five (5) business days from your receipt of this letter.” (Plaintiff’s Report, exhibit B, p. 11.) According to plaintiff, because defendants failed to provide the evidence demanded by plaintiff, the stipulation is rejected and there is no need to amend the complaint. (Plaintiff’s Report, at p. 2.)

On March 20, 2025, defendants filed a demurrer and a motion to strike as to the FAC. The demurrer and motion to strike are noticed for this hearing on June 2, 2025.

On March 25, 2025, defendants filed their report on outstanding issues. According to defendants, plaintiff initially stated that she was willing to amend the complaint to proceed in her individual capacity but ultimately refused to execute the stipulation unless the defendants agreed to multiple substantive conditions. (Worthge decl., ¶¶ 1, 2 & exhibits 1, 2.)

On April 7, 2025, the court noted that resolution of the discovery motions depended in part on the resolution of the demurrer and motion to strike as to the FAC. The court continued the discovery motions to this hearing date to be heard with the demurrer and motion to strike.

Analysis:

(1)       Demurrer

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

“Additionally, to the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.” (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.)

            (A)       Requests for Judicial Notice

Accompanying the FAC is a request for judicial notice (RJN) that includes: (RJN, item 1 [exhibit A]) “Plaintiff’s Notice of Rescission, dated May 22, 2024”; (items 2 through 17) quotations from various court decisions; (items 18 through 31) various legal maxims.

“ ‘ “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” ’ [Citation.]” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) There is no basis for taking judicial notice of item 1. The request for judicial notice is denied as to item 1.

With respect to items 2 through 17, “[a] request for judicial notice of published material is unnecessary. Citation to the material is sufficient. [Citation.] We therefore consider the request for judicial notice as a citation to those materials that are published.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46, fn. 9.) Otherwise, and also with respect to the items 18 through 31, the court does not take judicial notice of legal maxims, which are persuasive aids in construing the proper application of common-law principles or of code sections rather than affirmative statements of law. (See Civ. Code, § 3509; Daniels v. McPhail (1949) 93 Cal.App.2d 479, 482.)

The requests for judicial notice are denied.

            (B)       Breach of Contract and Conversion

Dayal’s second cause of action is for breach of contract. “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

The contract alleged by Dayal is the Note. (FAC, ¶ 58.) Under the terms of the Note, Dayal “promise[d] to pay $22,444.45 to [Logix] plus interest on the unpaid balance until what You owe has been paid.” (FAC, exhibit B, at p. 25 [Note, Loan Agreement, § 1].) Defendants argue that Dayal has not alleged plaintiff’s performance or excuse for failure to perform and has affirmatively alleged her failure to perform. Dayal argues that she has alleged performance by tender under Uniform Commercial Code section 3603, subdivision (b).

“If tender of payment of an obligation to pay an instrument is made to a person entitled to enforce the instrument and the tender is refused, there is discharge, to the extent of the amount of the tender, of the obligation of an indorser or accommodation party having a right of recourse with respect to the obligation to which the tender relates.” (Cal. U. Com. Code, § 3603, subd. (b).)

“Tender of payment” under section 3603, subdivision (b), depends in part upon the definition of “payment.” “Performance of an obligation for the delivery of money only, is called payment.” (Civ. Code, § 1478.) The tender alleged by Dayal is of a demand note signed by Dayal (not, for example, a check written by Dayal against a bank account with sufficient funds). (FAC, ¶ 34 & exhibit E.) However, the taking of a promissory note does not constitute payment of a debt unless the parties have agreed on that medium of payment. (Washington Lumber & Millwork Co. v. McGuire (1931) 213 Cal. 13, 15.) Dayal argues that she has alleged a discharging tender by offering to exchange her Note and security for a demand note. This does not allege her performance under the Note. (See Gaffney v. Downey Savings & Loan Assn. (1988) 200 Cal.App.3d 1154, 1165 [“ ‘[n]othing short of the full amount due the creditor is sufficient to constitute a valid tender, and the debtor must at his peril offer the full amount.’ ”].) Consequently, Dayal has not alleged her performance under the contract. The demurrer will be sustained to the second cause of action.

Dayal’s first cause of action is for conversion. “A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff.” (McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th at p. 1491.) The action for conversion is premised upon Dayal’s allegations that her obligation was discharged by tender of the new demand note to Logix. (FAC, ¶¶ 51-52.) As discussed above, Dayal has not adequately alleged payment and discharge. Dayal also alleges that Logix has a security interest in the Vehicle. (FAC, ¶¶ 16, 18 & exhibits A, B.) Under the security agreement alleged by Dayal, Logix had the right to repossess the Vehicle when Dayal was in default under the Note. (FAC, ¶ 18 & exhibit B [Security Agreement, § 9].) Dayal has not adequately alleged defendant’s wrongful act in repossessing the Vehicle and hence failed to adequately allege a cause of action for conversion. The demurrer to the first cause of action will be sustained.

            (C)       Recoupment

Dayal’s third cause of action is for recoupment under Uniform Commercial Code section 3305, subdivision (a)(3).

“Except as stated in subdivision (b), the right to enforce the obligation of a party to pay an instrument is subject to all of the following: [¶] … [¶] (3) A claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.” (Cal. U. Com. Code, § 3305, subd. (a)(3).)

Under this cause of action, Dayal alleges that she is entitled to recover all money paid to Logix from the outset because: “Logix, acting substantially as a bank, represented to Plaintiff that it intended to make a loan of its own money to Plaintiff.” (FAC, ¶ 64.) “A loan requires the delivery of money to the borrower, and there is no evidence that money was ever delivered by Logix to Plaintiff.” (FAC, ¶ 65.) “Plaintiff did not tender the Note to the Seller of the Car, and Logix was not and is not a seller of motor vehicles; therefore, the Car received by Plaintiff represented value given to Plaintiff by the Seller and not Logix.” (FAC, ¶ 66.) “Logix failed to give value for the Note.” (FAC, ¶ 67.)

As alleged by Dayal, the Note includes an itemization of the amount financed. (FAC, exhibit B, p. 25.) The Note states that the total amount financed was $22,444.45. (Ibid.) Of that amount, the amount to be given directly to Dayal was $0.00, the amount paid to Dayal on her account was $0.00, and the amount of prepaid finance charge was $0.00. (Ibid.) The Note further states that the amounts paid to others on Dayal’s behalf was $21,949.45 to Autobakers, and $495 to GAP. (Ibid.) Autobakers is alleged in the FAC as the seller of the Vehicle to Dayal. (FAC, ¶ 15.) GAP is explained in the Note as a Loan Balance Deficiency (GAP) Waiver Addendum & Election. (FAC, exhibit B, pp. 22-23.) Thus, Dayal alleges specifically by the exhibits that the loan required delivery of money to the seller of the Vehicle, and not to Dayal herself. Dayal further alleges that she received possession and ownership of the Vehicle, subject to Logix’s position as lienholder. (FAC, ¶¶ 15-16 & exhibit A.)

Because Dayal asserts this cause of action as a claim based upon the premise that Logix did not give value to Dayal but the Note on its face demonstrates that the money was to be paid to the seller of the Vehicle on behalf of Dayal for the purchase of the Vehicle, and that transaction is apparently confirmed by the title to Dayal subject to Logix’s lien, Dayal does not state a cause of action for recoupment under the facts alleged. The demurrer to the third cause of action will be sustained.

(D)       Defamation

Dayal’s fourth cause of action is for defamation. “The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)

Dayal alleges the defamatory statements as: “Defendants have knowingly and intentionally published, or caused to be published, certain defamatory statements in writing with regards to the creditworthiness of Plaintiff to one or more unprivileged third parties.” (FAC, ¶ 70.) “The third parties who received Defendants’ defamatory statements include, but are not limited to, one or more consumer credit reporting agencies: TransUnion, Equifax, and Experian (‘Credit Agencies’).” (FAC, ¶ 71.)

“ ‘In defamation cases … “the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” [Citations.]’ [Citation.]” (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 616.) The allegations of “certain defamatory statements” are insufficient. The demurrer to this cause of action will be sustained.

Moreover, defendants argue in demurrer that if the alleged defamatory statements are of inaccurate credit reporting, such claims are generally preempted by the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.). (See Sanai v. Saltz (2009) 170 Cal.App.4th 746, 773–774.) This issue is not addressed in Dayal’s opposition. In the absence of sufficiently specific allegations of the defamatory statements, the court cannot determine whether such claims are or are not preempted by federal law. To the extent that Dayal continues to assert this cause of action in an amended complaint, the court expects the allegations to address the preemption issue.

            (E)       Fraudulent Concealment

Dayal’s fifth cause of action is for fraudulent concealment. Defendants first note that Dayal did not seek leave to add this cause of action when this cause of action did not appear in the original complaint. Dayal filed her FAC while defendants’ prior demurrer was pending and before opposition to the demurrer was due. Consequently, Dayal had an unqualified right, once, to file an amended complaint adding any cause of action. (See Code Civ. Proc., § 472, subd. (a); Ryan G. v. Department of Transportation (1986) 180 Cal.App.3d 1102, 1105 [“[i]n general, an amendment may correct any part of the pleading”].) There is thus no issue that this cause of action may properly be included in the FAC.

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) plaintiff sustained damage as a result of the concealment or suppression of the material fact.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Dayal alleges that “it was never disclosed to Plaintiff that the Loan Application itself was a collateral security and an asset to Logix regardless of whether Logix ‘approved’ or ‘denied’ the application.” (FAC, ¶ 82.) Dayal further alleges that “[s]ecuritization is when a financial institution takes an instrument, such as the Loan Application, bundles it with other like instruments, then calculates the value of the bundle at maturity (meaning the total of payments plus interest and fees for all instruments in the bundle), and then it issues bonds for that calculated amount or close to it.” (FAC, ¶ 83.) “While the exact details of how securitization is accomplished are not relevant, what is relevant here is that Logix failed to disclose true value of the Loan Application to Plaintiff, instead concealing this material fact.” (FAC, ¶ 87.)

According to Dayal, “Under California Commercial Code § 9207(c)(2) and related commercial statutes, Plaintiff was entitled to have her purported obligation to Logix reduced by any profits Logix may have realized from the securitization of the Loan Application, or any other means by which the Loan Application may have been monetized by Logix.” (FAC, ¶ 88.)

On this issue it should be first noted that Commercial Code section 9207 presents a different issue than raised in the claim for fraudulent concealment. “Except as otherwise provided in subdivision (d), a secured party having possession of collateral or control of collateral under Section 7106, 9104, 9105, 9105.1, 9106, 9107, or 9107.1 may or shall, as the case may be, do all of the following: [¶] … [¶] (2) Shall apply money or funds received from the collateral to reduce the secured obligation, unless remitted to the debtor.” (Cal. U. Com. Code, § 9207, subd. (c)(2).) This provision relates to funds received from collateral, such as the proceeds from the sale of a repossessed car to be applied to reduce the car loan, and so is not applicable to a claim such as Dayal’s asserting fraud in the inducement of a loan agreement.

Looking at the elements of Dayal’s fraudulent concealment claim, the claim is not adequately alleged. As noted above, a plaintiff asserting a cause of action for fraudulent concealment must specifically plead each element of fraud, including the elements of reliance and damages. “A plaintiff establishes reliance ‘when the misrepresentation or nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction. [Citations.]’ [Citation.] ‘Reliance can be proved in a fraudulent omission case by establishing that “had the omitted information been disclosed, [the plaintiff] would have been aware of it and behaved differently.” [Citation.]’ [Citation.]” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1193–1194.) “After establishing actual reliance, the plaintiff must show that the reliance was reasonable by showing that (1) the matter was material in the sense that a reasonable person would find it important in determining how he or she would act [citation]; and (2) it was reasonable for the plaintiff to have relied on the misrepresentation.” (Id. at p. 1194.)

Dayal alleges that Logix failed to disclose that the loan application would be later used as security by Logix. Dayal does not allege either that she relied upon that omission, i.e., that had Logix made such a disclosure Dayal would have behaved differently. Dayal also does not allege how it may have been reasonable for Dayal to have relied upon the omission. As to this last issue, it is difficult to understand how the asserted omission would be material. Dayal would have to explain not only why what Logix would do with her loan was material to Dayal’s own actions but also why a reasonable person would view that information as material.

Additionally, “ ‘[i]n order to recover for fraud, as in any other tort, the plaintiff must plead and prove the “detriment proximately caused” by the defendant’s tortious conduct. [Citation.] Deception without resulting loss is not actionable fraud. [Citation.] “Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.” ’ [Citations.]” (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 776.) Even if Dayal alleged that she would have behaved differently with full disclosure, it is unclear what damages Dayal has or would have suffered. Dayal alleges she purchased the Vehicle through the credit extended to her by the Note. To whatever extent that Logix may have profited or otherwise benefitted from the loan to Dayal apart from the payments to have been made by Dayal under the terms of the loan, there are no allegations that such profit or benefit to Logix would be recoverable as damages to Dayal.

The demurrer to the fifth cause of action will be sustained.

            (F)       Unjust Enrichment

Dayal’s sixth cause of action is for unjust enrichment. Defendants first argue that this cause of action is not stated because there is no cause of action for unjust enrichment. “ ‘[T]here is no cause of action in California for unjust enrichment.’ [Citations.] Unjust enrichment is synonymous with restitution.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.) This argument, however, is merely one of semantics as to the labeling of the cause of action because there is a cause of action for restitution. “ ‘Under the law of restitution, “[a]n individual is required to make restitution if he or she is unjustly enriched at the expense of another. [Citations.]” (Ibid.; see also Rest.3d Restitution and Unjust Enrichment, § 1 [“A person who is unjustly enriched at the expense of another is subject to liability in restitution.”].) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at p. 38.) The court therefore looks to whether Dayal has sufficiently alleged a basis for liability in restitution.

Dayal alleges that “Plaintiff pleads this claim of unjust enrichment on the basis that Logix has taken and sold Plaintiff’s Car after the Car had been paid in full.” (FAC, ¶ 93.) The “after the Car had been paid in full” allegation necessarily relates back to Dayal’s allegations in the causes of action for breach of contract and recoupment. As discussed above, the exhibits to the FAC show that, contrary to the conclusory allegation of payment in paragraph 93, the loan was not paid in full (because the alleged tender of a demand note did not constitute payment). Accordingly, Dayal has not alleged the basis for restitution asserted in paragraph 93 and in the sixth cause of action.

The demurrer to the sixth cause of action will be sustained.

            (G)       Uncertainty

Defendants also demur to the FAC on the grounds of uncertainty, specifically, Dayal’s insistence in defining the “plaintiff” as “Estate of Svetlana Leonidovna Dayal” rather than defining “plaintiff” as either an individual in an individual capacity or an individual as the sole settlor and beneficiary of a revocable living trust. As the court has previously explained in the context of defendants’ motion to preclude plaintiff from being self-represented, the term “Estate of …” is improper and legally incorrect as set forth in the allegations of the FAC. In the preface to the FAC, Dayal states that the FAC did not address this issue, which was instead to be addressed later based upon the outcome of a meet and confer process. The allegations as now set forth are uncertain. Defendants appropriately need to know the capacity by which the “plaintiff” brings the action. The demurrer for uncertainty will be sustained on this ground.

            (H)      Leave to Amend

The FAC is the first pleading to which the court has addressed the substance of defendants’ demurrer. Plaintiff will be given leave to amend.

(2)       Motion to Strike

Defendants also move to strike the allegation of punitive damages set forth in paragraph 78 of the text of the FAC and in the prayer for relief. Insofar as the court will sustain the demurrer as to each cause of action of the FAC, the motion to strike will be denied as moot.

(3)       Discovery Motions

There are two discovery motions also before the court.

On November 15, 2024, defendants made a motion for a protective order. This motion requests a temporary stay of discovery until the issue of plaintiff’s status as a self-represented party is resolved. The motion is opposed by plaintiff.

On December 19, 2024, plaintiff filed her motion to compel further responses to: (1) interrogatories (set one) to defendant Ana Fonseca; and (2) requests for production of documents (set one) to defendant Logix. Plaintiff also requests an award of monetary sanctions. Defendants oppose the motion, in part based upon the pending motion for protective order and in part on procedural grounds.

As the court has previously noted, the capacity in which and for which Dayal brings her claims affects a number of facets of this case, including Dayal’s legal capacity to be self-represented. As noted before, based upon the pleadings, the nature of Dayal’s actual capacity as plaintiff seems to be at odds with the legal language used in the FAC. Dayal expressly did not address this issue in the FAC although that issue was clearly raised and that resolving and clarifying the issue would have avoided further disputes. In view of this situation and the fact that the court has sustained defendants’ demurrer on grounds including uncertainty as to plaintiff’s capacity, the court will grant defendants’ motion for a protective order to order a temporary stay of discovery until the pleadings are settled.

As to the motion to compel, although the motion would otherwise be affected by the granting of the discovery stay, the court will nonetheless deny the motion because of procedural problems.

“Except as provided in (b) [not applicable here], any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: [¶] … [¶] (2) To compel further responses to interrogatories; [¶] (3) To compel further responses to a demand for inspection of documents or tangible things ….” (Cal. Rules of Court, rule 3.1345(a)(2), (3).)

Plaintiff did not file a separate statement as required by rule 3.1345. The failure to file a separate statement is a sufficient ground to deny the motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) The motion will therefore be denied.