Judge: Armen Tamzarian, Case: 24STCV17603, Date: 2024-11-08 Tentative Ruling

Case Number: 24STCV17603    Hearing Date: November 8, 2024    Dept: 52

Defendant Jesus R. Cuevas’s Motion to Quash Service of Summons and Set Aside Entry of Default

Defendant Jesus R. Cuevas moves to quash service of summons of the first amended complaint by plaintiff Sherry McAllister, as successor trustee of the Donald Douglas Lemon revocable trust of January 8th, 2005.  “[O]nce a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service.”  (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.) 

Cuevas filed this motion to quash service of summons.  In his declaration in support of the motion, he states, “My name is Jesus R. Cuevas not Jesus R. Cuveas” as stated on the proof of service, “and I was never properly served with the First Amended Complaint.”  (Cuevas Decl., ¶ 6.)  Plaintiff did not file a timely opposition to this motion.  She has not met her burden of showing valid service on Cuevas.

Defendant Jesus R. Cuevas’s motion to quash service of summons is granted.  The court hereby quashes service of summons of the first amended complaint on Cuevas.  The court hereby vacates defendant Jesus R. Cuevas’s default as to plaintiff’s first amended complaint.

Defendant Legacy Escrow Inc.’s Demurrer to First Amended Complaint

Defendant Legacy Escrow Inc. (Legacy) demurs to the entire first amended complaint by plaintiff Sherry McAllister, as successor trustee of the Donald Douglas Lemon revocable trust of January 8th, 2005.  

1st & 2nd Causes of Action: Breach of Written Contract and Breach of Implied Covenant of Good Faith and Fair Dealing

            Plaintiff does not allege sufficient facts for these causes of action.  To allege breach of a written contract, a plaintiff may plead the contract’s legal effect, attach a copy, or plead its terms verbatim.  (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)  A breach of the implied covenant of good faith and fair dealing requires an underlying contract.  (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 252.)

            Plaintiff’s first amended complaint asserts Legacy breached a written contract by “wrongfully, unlawfully and illegally with[holding]” funds from plaintiff.  (FAC, ¶ 13.)  But the first amended complaint never alleges the nature of the contract or its legal effects, does not allege its terms verbatim, and does not include a copy.  It refers to “the terms and conditions set forth in the escrow contract” (¶ 29) without alleging those terms or why plaintiff was entitled to $300,000 (¶ 11) under the contract.  The first amended complaint further alleges plaintiff “entered into a contract with Defendant Legacy Escrow, Inc., who in fact conspired with Doe Defendants to deny Plaintiff access to her funds and refused to adhere to the terms and conditions of the contract.”  (¶ 32.)  None of the allegations suffice to apprise Legacy of the basis for plaintiff’s first and second causes of action. 

3rd Cause of Action: Fraudulent Misrepresentation

            Plaintiff does not allege sufficient facts for this cause of action.  Intentional misrepresentation requires: “(a) misrepresentation; (b) defendant’s knowledge of the statement’s falsity; (c) intent to defraud (i.e., to induce action in reliance on the misrepresentation); (d) justifiable reliance; and (e) resulting damage.”  (Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1184.)  “[F]raud must be pled specifically.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  “ ‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ ”  (Ibid.)  “A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater.  In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ ”  (Ibid.) 

            The first amended complaint does not specifically allege the elements of fraud.  It alleges Legacy “by and through their current owner (Sherrie Suanico) conspired with Defendant ‘Cuevas’ to cause a stop on the payment owed to Plaintiff.”  (FAC, ¶ 43.)  It further alleges Legacy “by and through its current owner (Sherrie Suanico) and Defendant ‘Cuevas’ collectively conspired together to prepare false documents designed to suggest that ‘Cuevas’ had some sort of claim when nothing could be further from the truth.”  (¶ 49.)  Plaintiff does not specifically allege when or by what means any of these events happened.  Nor does she specifically allege the misrepresentation Legacy made to her or how she relied on that misrepresentation.

Disposition

Defendant Legacy Escrow Inc.’s demurrer to plaintiff Sherry McAllister’s entire first amended complaint is sustained with 20 days’ leave to amend.