Judge: Armen Tamzarian, Case: 24STCV30406, Date: 2025-05-14 Tentative Ruling
Case Number: 24STCV30406 Hearing Date: May 14, 2025 Dept: 52
Defendants’ Demurrer and Motion to
Strike Portions of Complaint
Demurrer
Defendants K Rad Development Inc.
and Kevin Radzinsky demur to all four causes of action alleged by plaintiffs
David D. Kremenetsky and Tatyana Belenkaya.
1st Cause
of Action: Breach of Contract
Plaintiffs allege sufficient
facts for this cause of action. The
elements of breach of contract are: “(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.)
Defendants
challenge the first element. They argue the
complaint is uncertain because it refers to three separate contracts. A complaint alleging breach of contract “may
plead the legal effect of the contract” and is not required to attach the
contract or plead its terms verbatim. (Construction Protective Services, Inc. v.
TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) The complaint alleges, “Plaintiffs entered into three separate written contracts with”
defendants “for work on the house at the Subject Property, which included, but
was not limited to, the following: stucco, weep screed, drywall, insulation,
texture, prime, painting and caulking… .”
(Comp., ¶ 7.) Regardless of the
number of contracts, the legal effect is clear enough: plaintiffs agreed to pay
defendants to perform various repairs or renovations on their property. Plaintiffs allege defendants breached the
contracts in several ways, which can be summarized as doing poor work on the
project. (Comp., ¶ 9.) The complaint is sufficiently certain as to
this cause of action.
2nd Cause of Action: Fraud
Plaintiffs
do not allege fraud with the specificity required. The elements of fraud are: “(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.)
The complaint alleges, “[I]n or about August or
September of 2022, RADZINSKY communicated to Plaintiffs both orally and in
writing that Contractor Defendants were capable of repairing all of the issues
for which Plaintiffs contracted on the Project.
Furthermore, in or about the same time and the same manner, RADZINSKY
communicated to Plaintiffs that the work Contractor Defendants were performing
on the Project was being conducted pursuant to professional contractor
standards and consistent with the applicable building codes. However, these representations were false and
untrue.” (¶ 13.) “If Plaintiffs had known of the falsity of
the representations made by RADZINSKY and the material facts concealed by him …
Plaintiffs would not have entered into the three written contracts with
Contractor Defendants … and would not have allowed them to work on the Project.” (¶ 14.)
These allegations are not sufficiently
specific. Allegations merely stating
that someone made false promises or never intended to perform “are the very
sort of general and conclusory allegations that are insufficient to state a
fraud claim.” (Reeder v. Specialized
Loan Servicing LLC (2020) 52 Cal.App.5th 795, 804.) A fraud claim fails where the “plaintiff has
alleged no facts or circumstances suggesting defendants’ intent not to perform
the alleged promise when it was made.
‘It is insufficient to show an unkept but honest promise, or mere
subsequent failure of performance.’
[Citation.] Plaintiff has alleged
no facts or surrounding circumstances suggesting anything more.” (Ibid.)
When pleading promissory fraud, “it is indispensable to set forth the falsity of the promise at the time it
was tendered. [Citation.] In so differentiating a false promise from
the great bulk of broken promises, the allegations necessary to show
contemporaneous intention not to perform should be clear, specific, and
unequivocal.” (Hills Transp. Co. v.
Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 708.) A complaint is insufficient when it lacks “any
statement of fact to back up its claim of a false promise made with intent to
deceive and without intent to perform.”
(Ibid.)
Plaintiffs allege no facts or surrounding circumstances suggesting more
than contractors doing bad work on their property. Plaintiffs “ha[ve] done nothing more than
recast” their other claims “in the traditional words of fraud, without any
supporting facts.” (Goldrich v.
Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 783.)
3rd Cause of Action: “Property Damage”
Plaintiffs do not allege sufficient facts for this purported cause of
action. There is no such cause of action
or tort as “property damage.” The
complaint’s third cause of action asserts nothing different from the fourth
cause of action for negligence.
Plaintiffs’ opposition argues the claim is based on private nuisance. The complaint does not allege that. Moreover, private nuisance is “a nontrespassory interference with the
private use and enjoyment of land.” (San
Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893,
937.) It requires “interference with the
plaintiff’s use and enjoyment of [his or her] property.” (Ibid.) Plaintiffs’ complaint alleges defendants
physically damaged structures on their real property, not that defendants
interfered with plaintiff’s use and enjoyment of their land.
4th Cause of Action: Negligence
Plaintiffs
allege sufficient facts for this cause of action. Defendants contend the claim is wholly
duplicative of the first cause of action for breach of contract. “[T]he same wrongful act may constitute both
a breach of contract and an invasion of an interest protected by the law of
torts.” (North American Chemical Co.
v. Superior Court (1997) 59 Cal.App.4th 764, 774.)
Plaintiffs’ complaint alleges one of the classic
exceptions to the general distinction between contract and tort law: damage to
other property that was not the subject of the contract. “ ‘In general, there is no recovery in tort
for negligently inflicted “purely economic losses,” meaning financial
harm unaccompanied by physical or property damage.’ ” (Rattagan v. Uber Technologies, Inc.
(2024) 17 Cal.5th 1, 20; accord Jimenez v. Superior Court (2002) 29 Cal.4th 473, 482-484.)
Here, plaintiffs allege more than that defendants
failed to live up to their contractual obligations. They allege that, in performing the project, defendants
damaged other parts of the house that were not the subject of the contract. For example, “Contractor Personnel used jack
hammers to remove the existing stucco, which shook the entire house to such an
extent that it created cracks and damage throughout the house, including, but
not limited to, the roof, chimney, fireplace, all fourteen windows on that side
of the house, trims, moldings and wood floors.”
(Comp., ¶ 9(c).) “Contractor
Personnel damaged the custom wood cabinets” and “custom wood railings” in the
house’s den. (¶ 9(i).) Their work also allegedly “resulted in water
seeping into and under the wood floor in the Den Area.” (¶ 9(k).)
These allegations suffice for negligence based on breach of independent
tort duties.
Motion to
Strike
Defendants K Rad Development Inc.
and Kevin Radzinsky move to strike portions of plaintiffs’ complaint. First, defendants move to strike the entire
second, third, and fourth causes of action.
Rather than a motion to strike, the demurrer is the appropriate
procedure for challenging an entire cause of action. (Quiroz v. Seventh Ave. Center (2006)
140 Cal.App.4th 1256, 1281 [“it is improper for a court to strike a whole cause
of action of a pleading under Code of Civil Procedure section 436… . Where a whole cause of action is the proper
subject of a pleading challenge, the court should sustain a demurrer to the
cause of action rather than grant a motion to strike”].)
Defendants also move to strike two portions of the complaint pertaining
to punitive damages. Courts may strike allegations regarding
punitive damages where the facts alleged “do not rise to the level of malice,
oppression or fraud necessary” to recover punitive damages under Civil Code
section 3294. (Turman v. Turning
Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) The complaints’ allegations do not rise to
that level. As discussed above,
plaintiffs do not allege sufficient facts for fraud. Plaintiffs’ allegations amount to breach of
contract and negligence, not malice, oppression, or fraud.
Disposition
Defendants K Rad Development Inc.
and Kevin Radzinsky’s demurrer to plaintiffs David D. Kremenetsky and Tatyana
Belenkaya’s second and third causes of action is sustained with leave to amend. Defendants’ demurrer to the first and fourth
causes of action is overruled.
Defendants’ motion to strike portions of plaintiffs’ complaint is
granted in part, with leave to amend, as to portions of the complaint regarding punitive
damages. The court hereby strikes the following portions of plaintiffs’ complaint with leave to amend:
(1) “The aforementioned conduct of RADZINSKY was an intentional misrepresentation,
deceit, or concealment of material facts known to RADZISKY with the intention
on the part of RADZINSKY of thereby depriving Plaintiffs of property or legal rights
or otherwise causing injury, and was despicable conduct that subjected
Plaintiffs to a cruel and unjust hardship in conscious disregard of Plaintiffs’
rights, so as to justify an award of exemplary and punitive damages.” (Comp., ¶
16, p. 6, lines 23-28.)
(2) “For punitive and exemplary damages.”
(Comp., prayer ¶ 4, p. 10, line 12.)
Plaintiffs shall file any first amended complaint within 20 days.