Judge: Bruce G. Iwasaki, Case: 22STCV17627, Date: 2022-08-12 Tentative Ruling

Case Number: 22STCV17627    Hearing Date: August 12, 2022    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             August 12, 2022

Case Name:                Jerome J. Nash, individually and as Trustee of the Jerome J. Nash Revocable Trust u/d/t dated May 21, 2001 v. Fairweather Roofing, Inc. et al.

Case No.:                    22STCV17627

Motion:                       Demurrer and Motion to Strike

Moving Party:             Defendants Fairweather Roofing, Inc., Clifford R. Freund, and Bill McFeggan

Opposing Party:          Plaintiff Jerome J. Nash, individually and as Trustee of the Jerome J. Nash Revocable Trust u/d/t dated May 21, 2001

Background

            This is an action involving contracts on four roofing projects.  On May 27, 2022, Jerome J. Nash, individually and as Trustee of the Jerome J. Nash Revocable Trust u/d/t dated May 21, 2001 (Plaintiff or Nash) filed the Complaint against Fairweather Roofing, Inc., Clifford R. Freund, and Bill McFeggan (Defendants) for breach of contract, specific performance, negligent misrepresentation, fraud – intentional misrepresentation, and negligence.

            The Complaint alleges that Defendant Fairweather Roofing would provide repair services to the roofs of different buildings owned by Plaintiff.  Defendants allegedly breached the agreements by providing subpar workmanship, which necessitated further repairs.   

            Defendants demur to the seventh cause of action for fraud for failure to state sufficient facts and uncertainty.  They also move to strike portions of the complaint relating to the fraud cause of action, and the prayer for relief as to punitive damages and attorneys’ fees.

            Plaintiff opposes.  He argues the facts are sufficient and that he may plead both negligence and a fraud claim in the Complaint.

            In reply, Defendants reiterate that the Complaint does not state facts that support a claim other than negligence.

         Defendants’ counsel indicates that he met and conferred with Plaintiff’s counsel telephonically and through e-mail.  (Jacobs Decl. ¶¶ 4-10.) 

Discussion

            A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (§ 452.)  The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  The court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Uncertainty

            A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing that a defendant cannot tell what he or she is supposed to respond to.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  Here, the Complaint’s factual allegations cannot be said to be unintelligible; the demurrer cannot be sustained for uncertainty. 

The seventh cause of action for fraudulent misrepresentation lacks specificity.

            The elements of intentional misrepresentation are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631.)  If plaintiff is alleging fraudulent concealment, this requires the “ ‘suppression of a fact, by one who is bound to disclose it.’ [Citation.]  Plaintiff must show that defendant had a duty to disclose.”  (Huy Fong Foods, Inc. v. Underwood Ranches, LP (2021) 66 Cal.App.5th 1112, 1121-1122.)

            Fraud must be pled specifically, not with “general and conclusory allegations.”  (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [“This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.”)  

            The Complaint is insufficiently pled.  Nash makes four allegations as to the asserted misrepresentations: “(a) Defendants never registered Nash’s projects with Firestone and never had the final Firestone walkthrough that was required to obtain a manufacturer’s warranty; (b) Defendants intended to close their business, and knew that they would not continue to honor the workmanship warranty; (c) The roofing provided was subpar and not up to standards in the industry; and (d) Defendants never intended to complete the roof and/or to supervise a subsequent roofer at the LCB Project, after taking the $5,000 deposit.”  (Complaint, ¶ 66.) 

            However, Nash does not plead when or how (whether in writing or orally) these alleged disclosures were made to him.  The Complaint provides the approximate dates as to when the contracts were entered into but fail to specify when the alleged misrepresentations occurred. Moreover, most of these alleged misrepresentations are nothing more than Defendants’ nonperformance under the contract, for which breach of contract claims are already alleged. 

            Plaintiff’s allegations suggest that he is asserting claims for promissory fraud or fraud by concealment, as opposed to intentional misrepresentation.  Plaintiff’s opposition conflates the issue by referring to “fraud in the inducement” on numerous occasions.  (See Opposition, pp. 2:10-12, 4:8-9, 8:3-5 [“This was classic fraud in the inducement”].)  Given fraud is subject to heightened pleading standards, Plaintiff must clarify whether he is alleging promissory fraud or intentional misrepresentation.  In either case, Plaintiff has failed to set forth specific details such as how the representations were made, when and where each of the promises were made as related to the individual properties.

            Accordingly, the demurrer is sustained with leave to amend.

The motion to strike is granted.

            Defendants argue that punitive damages are improper in a breach of contract case and Plaintiff’s fraud causes of action are insufficiently pled.  They also argue that Plaintiff fails to plead that the contract or a statute provides for attorney fees in the remaining claims.

            “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.”¿ (Code Civ. Proc., § 436.)

            The basis for punitive damages must be pled with specificity.  Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent, or malicious. (Civ. Code, § 3294, subd. (a).)  A¿plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.”¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864, 872.)

            Given the Court's findings above, the motion to strike the paragraphs in the fraud cause of action (¶¶ 67, 68, 71) and the request for punitive damages (¶ 6 of Prayer for Relief) is granted with leave to amend.

            As to the paragraph in the Complaint’s Prayer for Relief for attorneys’ fees, such fees are not recoverable unless provided for by contract or statute. (Code Civ. Proc., §§ 1021.)  The Complaint does not allege a basis for attorney’s fees.  The attached exhibits of the contracts also do not provide for attorney’s fees.  And Plaintiff does not argue this point in his Opposition to the Motion to Strike.  Therefore, Paragraph 5 in the Complaint’s Prayer for Relief for attorneys’ fees is ordered stricken. 

Conclusion

            The Court sustains the demurrer and grants the motion to strike in its entirety.  Plaintiff is given 20 days leave to amend.