Judge Andrew E. Cooper, Case Number: 24CHCV00281, Date: 2024-09-23 Tentative Ruling

Judge: Andrew E. Cooper, Case: 24CHCV00281, Date: 2024-09-23 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 24CHCV00281 Hearing Date: September 23, 2024 Dept: F51

SEPTEMBER 20, 2024

DEMURRER WITH MOTION TO STRIKE

Los Angeles Superior Court Case # 24CHCV00281

Demurrer and Motion to Strike Filed: 5/23/24

MOVING PARTY: Defendant Christian Fong (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Jose Ramos Barahona, in pro per (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendant demurs Plaintiff’s entire complaint. Moving Defendant also moves to strike references to punitive damages from Plaintiff’s complaint.

TENTATIVE RULING: The unopposed demurrer is sustained with 30 days leave to amend. The motion to strike is partially granted. The Court strikes page 8, lines 4 through 5, paragraph 2, from Plaintiff’s complaint without leave to amend.

ANALYSIS

This is a contract action in which Plaintiff alleges that he purchased certain real property located at 27716 Lakehurst Avenue, Santa Clarita CA, which included a solar panel lease from Defendants. (Compl. ¶¶ 8, 11.) Plaintiff alleges that Moving Defendant is the CEO of nonmoving defendant Solar Service Experts, LLC. (Id. at ¶ 4.) Plaintiff alleges that Defendants defrauded Plaintiff by overcharging him for electrical utilities without adequate explanation, and “to date, the Plaintiff does not have a copy of the contract lease agreement for his property.” (Id. at ¶¶ 9–17.)

On 1/29/24, Plaintiff filed his complaint against Defendants, alleging the following causes of action: (1) Breach of Contract Agreement; (2) Fraudulent Misrepresentation; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Intentional Infliction of Emotional Distress.

On 5/23/24, Moving Defendant filed the instant demurrer and motion to strike. No oppositions have been filed to date. On 9/16/24, Moving Defendant filed a notice of non-opposition to his demurrer and motion to strike.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Moving Defendant demurs against Plaintiff’s entire complaint, arguing that Plaintiff fails to allege facts sufficient to state any of the causes of action contained therein.

A. Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel declares that on 4/30/24, she sent Plaintiff a letter discussing the issues raised in the instant demurrer and motion to strike. (Decl. of McKenzie N. Hardy ¶ 2.) On 5/3/24 and 5/6/24, Moving Defendant’s attorney met and conferred with Plaintiff, but the parties were unable to come to a resolution. (Id. at ¶¶ 3–4.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B. Breach of Contract

Plaintiff’s first cause of action alleges against all defendants Breach of Contract Agreement. To state a cause of action for breach of contract, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A written contract may be pleaded either verbatim or generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199.)

Here, Plaintiff has attached a copy of the subject agreement to his complaint. (Ex. 1 to Compl.) However, as Moving Defendant observes, the parties to the original agreement are “Hazel Adkins and Tredegar Solar Fund 1, LLC and is dated November 2013. The related Transfer of Solar Agreement is between Hazel Adkins, Plaintiff Jose Miguel Ramos Barahona, and Tredegar Solar Fund 1, LLC. Plaintiff signed the Transfer of Solar Agreement on October 19, 2021, and thus became a party to the SPA.” (Dem. 1:11–13, citing Ex. 1 to Compl.) Moving Defendant therefore argues that he “is not a party to or even mentioned in the contract Plaintiff attached to his Complaint which is accepted as true for purposes of demurrer.” (Id. at 3:21–22.) Moving Defendant further argues that “even if SSE did have a contract with Plaintiff, Mr. Fong cannot be held personally liable for SSE’s obligations.” (Id. at 3:27–28, citing Corp. Code § 17703.04, subd. (a).)

The Court notes that Plaintiff has not filed any opposition to Moving Defendant’s demurrer. Based on the foregoing, the Court finds that Plaintiff has failed to allege the existence of a written contract between himself and Moving Defendant, and his own performance or excuse for nonperformance thereunder, and therefore has failed to allege facts sufficient to constitute a cause of action for Breach of Contract. Accordingly, the demurrer is sustained as to Plaintiff’s first cause of action.

C. Fraudulent Misrepresentation

Plaintiff’s second cause of action alleges Fraudulent Misrepresentation against Defendants. “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” (Civ. Code § 1709.) The elements that must be pleaded in a cause of action for fraud are: (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of its falsity (or “scienter”); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) Fairness requires that allegations of fraud be pled “with particularity” so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement necessitates pleading facts that “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, Plaintiff details his alleged communications with Defendants from September 2021 through March 2022, alleging that Defendants were evasive and unhelpful in explaining the amounts charged on Plaintiff’s electric bills. (Compl. ¶¶ 9–16.) Plaintiff further alleges that “Defendants fraudulently misrepresented to Plaintiff and failed to justify the details of the contract lease agreement,” that “Defendants knew that these representations were false and made such representations to deceive and defraud Plaintiff and to induce Plaintiff to act in reliance upon these representations.” (Id. at ¶¶ 23–24.) “As a direct and proximate result of Defendants’ fraudulent misrepresentations, Plaintiff has suffered damages, legal fees, costs, expenses, and his credit ruined.” (Id. at ¶ 25.)

Moving Defendant argues that Plaintiff’s allegations “are not specific enough to state a claim for fraud and do not go to each element necessary.” (Dem. 5:1–2.) “From these facts alone, it is unclear who actually made any fraudulent misrepresentations to Plaintiff and when they were made.” (Id. at 4:3–4.) “Importantly, Plaintiff does not state facts to support the conclusion that Mr. Fong made a misrepresentation to Plaintiff, that Mr. Fong knew it was false, and that Mr. Fong intended to induce Plaintiff’s reliance on that misrepresentation.” (Id. at 4:7–9.) The Court agrees, and finds that Plaintiff’s allegations fail to clearly state any alleged misrepresentations made by Moving Defendant.

Based on the foregoing, has failed to allege facts sufficient to constitute a cause of action for Fraudulent Misrepresentation. Accordingly, the demurrer is sustained as to Plaintiff’s second cause of action.

D. Breach of the Implied Covenant of Good Faith and Fair Dealing

Plaintiff’s third cause of action alleges against Defendants a breach of the implied covenant of good faith and fair dealing with respect to the services agreement. Every contract contains an implied covenant of good faith and fair dealing that neither party will do anything to interfere with the other party’s right to receive the benefits of the agreement. (Howard v. American Nat'l Fire Ins. Co. (2010) 187 Cal.App.4th 498, 528.) The precise nature and extent of the duty depends on the nature and purpose of the underlying contract and the parties’ legitimate expectations arising from the contract. (Ibid.) “A breach of the implied covenant of good faith is a breach of the contract … and breach of a specific provision of the contract is not ... necessary to a claim for breach of the implied covenant of good faith and fair dealing.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.)

However, “if the allegations [of breach of implied covenant of good faith and fair dealing] do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

Here, Plaintiff alleges that Defendants breached the implied covenant of good faith and fair dealing by “engaging in action purposefully aligned at frustrating and wrongfully overbilling services for solar panels to Plaintiff, or that Defendants promised to procure on his behalf.” (Compl. ¶ 29.) Moving Defendant argues that “as Mr. Fong is not a party to the underlying contract allegedly breached, the covenant cannot impose any obligations on him and thus this cause of action is inapplicable.” (Dem. 5:22–23.)

The Court agrees, and finds that to the extent that Plaintiff’s third cause of action derives from his defective cause of action for Breach of Contract, it likewise fails. Accordingly, the demurrer is sustained against Plaintiff’s third cause of action.

E. Intentional Infliction of Emotional Distress

Plaintiff’s fourth cause of action alleges Intentional Infliction of Emotional Distress against Defendant. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant’s alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047–1048.)

Here, Moving Defendant argues that Plaintiffs’ allegations do not rise to the requisite level of outrageousness to support a cause of action for intentional infliction of emotional distress because “it is unclear who exactly damaged his credit, how they did it, or when it occurred. Moreover, there are no facts to support any outrageous and intentional conduct by Mr. Fong.” (Dem. 7:13–15.) The Court agrees, noting that the only factual allegation mentioning Moving Defendant states that “Defendant, Christian Fong who is CEO, need to have a better training staff on how to communicate with customers.” (Compl. ¶ 16.)

Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to state a cause of action for Intentional Infliction of Emotional Distress against Moving Defendant. Accordingly, the demurrer is sustained against Plaintiff’s fourth cause of action.

MOTION TO STRIKE

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

A. Meet-and-Confer

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

Here, as previously mentioned, Moving Defendant’s counsel declares that on 4/30/24, she sent Plaintiff a letter discussing the issues raised in the instant demurrer and motion to strike. (Hardy Decl. ¶ 2.) On 5/3/24 and 5/6/24, Moving Defendant’s attorney met and conferred with Plaintiff, but the parties were unable to come to a resolution. (Id. at ¶¶ 3–4.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 435.5, subdivision (a).

B. Punitive Damages

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Id. at subd. (c); Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

1. Breach of Contract

Punitive damages are not recoverable in contract actions. (Civ. Code § 3294, subd. (a).) As a preliminary matter, Moving Defendant correctly observes that Plaintiff’s prayer for punitive damages in connection with his first cause of action for Breach of Contract must be stricken. Accordingly, the Court grants the motion to strike page 8, lines 4 through 5, paragraph 2, from Plaintiff’s complaint without leave to amend.

2. Malice, Fraud, Oppression

Here, Moving Defendant argues that punitive damages are not warranted because “Plaintiff concludes that all Defendants acted with oppression, fraud, and malice without providing any factual allegations of oppression, fraud, or malice. There are no facts, for example, which demonstrate or even infer that Mr. Fong intended to cause Plaintiff injury or deprive Plaintiff of a property or legal right.” (MTS 4:14–17.) The Court agrees, and again notes that Plaintiff has failed to oppose the instant demurrer and motion to strike. Accordingly, the motion to strike the remaining references to punitive damages from Plaintiff’s complaint is granted as to Moving Defendant.

LEAVE TO AMEND

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the first demurrer brought against Plaintiff’s original complaint. Therefore, under the Court’s liberal policy of granting leave to amend, Plaintiff is granted 30 days leave to amend the complaint to cure the defects set forth above.

CONCLUSION

The unopposed demurrer is sustained and the unopposed motion to strike is partially granted, with 30 days leave to amend. The Court strikes page 8, lines 4 through 5, paragraph 2, from Plaintiff’s complaint without leave to amend.

SEPTEMBER 20, 2024

DEMURRER WITH MOTION TO STRIKE

Los Angeles Superior Court Case # 24CHCV00281

Demurrer and Motion to Strike Filed: 5/23/24

MOVING PARTY: Defendant Solar Service Experts, LLC, dba Spruce Power, Spruce Finance, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Jose Ramos Barahona, in pro per (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendant demurs Plaintiff’s entire complaint. Moving Defendant also moves to strike references to punitive damages from Plaintiff’s complaint.

ANALYSIS

This is a contract action in which Plaintiff alleges that he purchased certain real property located at 27716 Lakehurst Avenue, Santa Clarita CA, which included a solar panel lease from Defendants. (Compl. ¶¶ 8, 11.) Plaintiff alleges that Defendants defrauded Plaintiff by overcharging him for electrical utilities without adequate explanation, and “to date, the Plaintiff does not have a copy of the contract lease agreement for his property.” (Id. at ¶¶ 9–17.)

On 5/23/24, Moving Defendant filed the instant demurrer and motion to strike. On 7/2/24, Plaintiff filed his opposition Moving Defendant’s motion to strike. No opposition to Moving Defendant’s demurrer has been filed to date. On 9/16/24, Moving Defendant filed its reply, and a notice of non-opposition to its demurrer.

ANALYSIS

Here, Moving Defendant demurs against Plaintiff’s entire complaint, arguing that Plaintiff fails to allege facts sufficient to state any of the causes of action contained therein.

A. Meet and Confer

B. Breach of Contract

Here, Plaintiff has attached a copy of the subject agreement to his complaint. (Ex. 1 to Compl.) However, as Moving Defendant observes, the parties to the original agreement are “Hazel Adkins and Tredegar Solar Fund 1, LLC and is dated November 2013. The related Transfer of Solar Agreement is between Hazel Adkins, Plaintiff Jose Miguel Ramos Barahona, and Tredegar Solar Fund 1, LLC. Plaintiff signed the Transfer of Solar Agreement on October 19, 2021, and thus became a party to the SPA.” (Dem. 1:11–15, citing Ex. 1 to Compl.) Moving Defendant therefore argues that it “is not a party to or even mentioned in the contract Plaintiff attached to his Complaint which is accepted as true for purposes of demurrer.” (Id. at 3:21–22.) Moving Defendant further argues that “Plaintiff does not show he performed under the contract or was excused from performance. Regardless, the most glaring issue is that there are no facts to prove SSE has a contractual relationship with Plaintiff.” (Id. at 3:13–15.)

C. Fraudulent Misrepresentation

Moving Defendant argues that Plaintiff’s allegations “are not specific enough to state a claim for fraud and do not go to each element necessary.” (Dem. 4:21–22.) “From these facts alone, it is unclear who actually made any fraudulent misrepresentations to Plaintiff and when they were made.” (Id. at 4:23–24.) The Court agrees, and finds that Plaintiff’s allegations fail to clearly state the alleged misrepresentations made by Moving Defendant.

D. Breach of the Implied Covenant of Good Faith and Fair Dealing

Here, Plaintiff alleges that Defendants breached the implied covenant of good faith and fair dealing by “engaging in action purposefully aligned at frustrating and wrongfully overbilling services for solar panels to Plaintiff, or that Defendants promised to procure on his behalf.” (Compl. ¶ 29.) Moving Defendant argues that “because SSE is not a party to the underlying contract, and Plaintiff’s cause of action for breach of the implied covenant of good faith and fair dealing is based entirely on the same allegations in the breach of contract cause of action, the demurrer to this cause of action should be sustained without leave to amend.” (Dem. 5:23–26.)

E. Intentional Infliction of Emotional Distress

The demurrer is sustained against Plaintiff’s fourth cause of action.

MOTION TO STRIKE

The Court adopts the same findings from its companion tentative ruling. The Court strikes page 8, lines 4 through 5, paragraph 2, from Plaintiff’s complaint without leave to amend.

CONCLUSION

The unopposed demurrer is sustained with 30 days leave to amend. The motion to strike is partially granted. The Court strikes page 8, lines 4 through 5, paragraph 2, from Plaintiff’s complaint without leave to amend.