Tentative Ruling: De Guzman Enterprise Inc vs Michael Volkov et al

Case Number

25CV07111

Case Type

Hearing Date / Time

Mon, 05/04/2026 - 10:00

Nature of Proceedings

CMC; Demurrer to Cross-Complaint; Motion: Strike Cross-Complaint

Tentative Ruling

De Guzman Enterprise Inc. v. Michael Volkov, et al.           

Case No. 25CV07111

           

Hearing Date: May 4, 2026                                                     

HEARING:              1. De Guzman Enterprise Inc.’s Demurrer to Cross-Complaint of Michael Volkov and Rosetta Volkov

                             2. De Guzman Enterprise Inc.’s Motion to Strike Certain Portions of the Cross-Complaint of Michael Volkov and Rosetta Volkov

ATTORNEYS:        For Plaintiff and Cross-Defendant De Guzman Enterprise Inc.     dba 1Heart Caregiver Services: Nick I. Iezza, Conrad J.    Schmidt, Spiwak & Iezza LLP

For Defendants and Cross-Complainants Michael Volkov and       Rosetta Volkov:  J. Curtis Edmondson, Law Offices of J.        Curtis Edmondson

TENTATIVE RULING:

1. The demurrer to the first cause of action for breach of contract is overruled.
2. The demurrer to the second cause of action for fraud is sustained with leave to amend.
   1. Michael Volkov and Rosetta Volkov shall file and serve their first amended cross-complaint no later than May 18, 2026.
3. The motion to strike is taken off-calendar as moot.

Background:

This action commenced on November 12, 2025, by the filing of the complaint by plaintiff De Guzman Enterprise, Inc., dba 1Heart Caregiver Services (1Heart) against defendants Michael Volkov (Michael) and Rosetta Volkov (Rosetta) (collectively the “Volkovs”) for: (1) Breach of Written Agreement, (2) Breach of Guaranty, (3) Reasonable Value, (4) Account Stated, and (5) Unjust Enrichment. (Note: As defendant have the same surname, they will be referred to individually by their given names for clarity. No disrespect is intended.)

The complaint alleges that on July 24, 2025, the Volkovs executed a Service Agreement to furnish in-home care services, and thereafter 1Heart furnished in-home care services as requested. The complaint further alleges that the Volkovs failed to pay $63,941.43 for services rendered.

On December 18, 2025, the Volkovs answered the complaint admitting some allegations, denying others, and setting forth nine affirmative defenses.

On December 18, 2025, the Volkovs also filed the operative cross-complaint against 1Heart for Breach of Contract and Fraud.

As alleged in the cross-complaint:

On July 24, 2025, 1Heart entered into a written Service Agreement for 1Heart to provide in-home caregiver services to third-party, Maddalena Sciacca (Sciacca), at the Westmont Encinitas Assisted Living facility in Encinitas, California, with Rosetta as the Guarantor. (CC, ¶ 5.) The agreement authorizes in-home caregiving services for Sciacca during the hours of 8 p.m. to 8 a.m. only, but 1Heart breached its duty of care by consistently billing for time outside of these 12 hours. (Id. at ¶ 7.)

The agreement also provided that 1Heart’s caregivers would exercise that degree of care which a prudent person would use under the same or similar circumstances. (CC, ¶ 8.) 1Heart sent multiple staff members, rather than one or two consistent caregivers, to address and care for Sciacca’s needs each night, seven days a week. (Id. at ¶ 9.)

1Heart breached the agreement by not providing staff that complied with the terms of the agreement, in that they did not exercise that degree of care which a prudent person in the same circumstances would have exercised. (CC, ¶ 11.)

Despite only being authorized to work only the 12 hours identified in the agreement, 1Heart provided numerous billing statements that reference many instances where 1Heart’s staff was present earlier than 8 p.m. and well past 8 a.m. (CC, ¶ 12.) 1Heart billed for 24 hours on at least one occasion. (Ibid.) 1Heart demanded payment for the unauthorized services. (Ibid.)

1Heart made false and misleading representations of the care they provided to Sciacca by the submission of false and/or unauthorized billing statements that significantly overcharged Sciacca for their in-home caregiving services. (CC, ¶ 16.)

The Volkovs repeatedly requested billing statements from 1Heart so that they could compare the charges to any notes or conversations they had with Sciacca and to make sure the billing statements were accurate, but 1Heart delayed sending such statements to the Volkovs, causing a significant delay in payment of any legitimate sums owing to 1Heart. (CC, ¶ 17.)

1Heart made false and misleading representations that inferred their billing statements complied with the agreement and were justified per the billing logs submitted by 1Heart. (CC, ¶ 18.) 1Heart created and provided the false and inaccurate billing statements with the intent to deceive and induce the Volkovs reliance on the billing statements as reflecting the care provided to Sciacca. (Ibid.)

1Heart now demurs to the first cause of action for breach of contract on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain. 1Heart demurs to the second cause of action for fraud on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain.

1Heart seeks to strike paragraph No. 21 of the cross-complaint, which states: “The flagrant errors contained in the billing statements and claims by Cross-Defendant that they are entitled to 100% of the alleged fees even when errors are brought to their attention shows that Cross-Defendant is guilty of oppression, fraud or malice.” 1Heart also seeks to strike the Volkovs’ prayer for punitive damages.

The demurrer and motion to strike are both opposed.

Analysis:

            Demurrer:

Standard on Demurrer

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

First Cause of Action for Breach of Contract

“A contract is an agreement to do or not do a certain thing.” (Civ. Code, § 1549.)

“It is essential to the existence of a contract that there should be:

              “1. Parties capable of contracting;

              “2. Their consent;

              “3. A lawful object; and,

              “4. A sufficient cause or consideration.” (Civ. Code § 1550.)

The essential elements of a cause of action for breach of contract are “(1) the contract; (2) the plaintiff’s performance of the contract or excuse for nonperformance; (3) the defendant’s breach; and (4) the resulting damage to the plaintiff.” (Richman v Hartley (2014) 224 Cal. App. 4th 1182, 1186.)

1Heart acknowledges that the Volkovs have sufficiently pled the existence of a contract. However, they argue that the Volkovs fail to describe how the contract was breached and how any breach caused damages. 1Heart further argues that there are no allegations that anyone ever paid for the allegedly improperly billed services so there have been no damages relative to the alleged breach. (Demurrer, p. 5, ll. 16 – 20.) 1Heart additionally argues that to the extent the Volkovs claim that inadequate services were rendered, there is no description of the inadequate services. (Id. at l. 20-23.)

The court finds that the Volkovs have sufficiently pled allegations that describe the breach by 1Heart and how those breaches caused damages. Those allegations are set forth in paragraphs Nos. 7, 8, 9, 11, 12, and 13 set forth above.

The allegations are sufficient to overcome demurrer and the demurrer to the first cause of action will be overruled.

Second Cause of Action for Fraud

A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. [Citation.] Every element must be specifically pleaded.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)

“[F]raud must be pled specifically; general and conclusory allegations do not suffice. . . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Here, the cross-complaint makes general allegations regarding the elements of fraud but does not set forth any specific allegations that provide the “how, when, where, to whom, and by what means” any knowingly false representations were made by 1Heart or how the Volkovs justifiably relied on any such knowingly false representations. Much more is needed to survive demurrer to the fraud cause of action.

The demurrer to the second cause of action will be sustained with leave to amend.

            Motion to Strike

As the Volkovs will be given leave to amend the cross-complaint, the motion to strike will go off-calendar as moot.