Judge Christian R. Gullon, Case Number: 24PSCV01179, Date: 2024-08-27 Tentative Ruling

Judge: Christian R. Gullon, Case: 24PSCV01179, Date: 2024-08-27 Tentative Ruling

(1) Plaintiff’s Demurrer to the Cross-Complaint is SUSTAINED with leave to amend.

(2) PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINANTS’ COMPLAINT is MOOT in part (i.e., punitive damages) and DENIED in part (untimeliness).

This is a negligence case. Plaintiffs TENG JIAO ZHOU (“Zhou”) and Yung Wu (“Wu”) allege the following against Defendants NORTH EL MONTE AUTOMOTIVE, business form unknown, and HANK JANN, an individual and JENNIFER JANN, as an individual and as TRUSTEE OF THE ELDAN JANN AND JENNIFER JANN REVOCABLE LIVING TRUST, and ELDAN JANN, as an individual and as TRUSTEE OF THE ELDAN JANN AND JENNIFER JANN REVOCABLE LIVING TRUST: Defendants hired Zhou to do repairs on the roof of a premises owned by Defendants; Zhou was not licensed nor is he a licensed contractor. On the second day of the job, Zhou fell off the latter. Zhou alleges that because he was unlicensed, he is deemed an employee of the Defendants for civil tort purposes.

On May 28, 2024, Defendants HANK JANN dba NORTH EL MONTE AUTOMOTIVE, and ELDAN JANN filed a cross-complaint against Plaintiff Zhou, Evergreen Tree Service, LLC (“Evergreen”) and Cheng Hua Chui aka Roger Chui (“Chui”) for:

On July 24, 2024, Plaintiff Zhou filed the instant demurrer to the cross-complaint and a motion to strike.[1]

On August 14, 2024, Defendants filed their opposition to the demurrer and motion to strike.

Preliminary, while Plaintiffs’ Counsel attempted to meet and confer with the prior Defense counsel prior to filing the demurrer and motion to strike (who did not respond to meet and confer efforts), Counsel should have attempted to meet and confer with current counsel as well. For future motions wherein the attorneys do not meet and confer in good faith, the court will continue the hearing. Additionally, the motion to strike should have been filed as a separate filing.[2]

Plaintiff demurs to the 1^st through 3^rd COAs in that they all allege facts sufficient to constitute a cause of action insomuch that they fail to plead the causes of action with particularity. (Demurrer p. 2:11-14.) Before turning to the merits, the court turns to the allegations in the cross-complaint, which provide the following relevant allegations and describe the parties:

- Hank Jann (“Hank”) does business as North El Monte Automotive, an automotive repair shop owned by Hank’s brother, Eldan Jann.

- In January 2024, Eldan was looking for a licensed roofer to repair the roof of the business, so he sought the recommendation of his client, Chui.

- Chui represented to Eldan that he was affiliated with Zhou and that Zhou was a licensed roofer.

- Eldan spoke with Zhou, who said he had twenty-plus years in the roofing business.

- Zhou gave Eldan a quote and told Eldan that he would have a trained team working under him.

- Zhou and the workers were negligent in their working, exhibited by throwing pieces off the roof without looking where the pieces would land, which damaged a customer’s vehicle.

- Hank warned Zhou one day that heavy rains were forecasted, but Zhou proceeded with work without taking proper precautions.

A cause of action for intentional misrepresentation falls under the category of fraud and deceit. The elements of fraud that will give rise to a cause of action for deceit 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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973-974.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.”’ (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) (emphasis added).

In or about late January 2024, ELDAN JANN was looking for a licensed roofer to repair the roof at the Premises. In this regard, ELDAN JANN sought a recommendation from CHUI, as CHUI was a customer of ELDAN JANN. CHUI recommended ZHOU. Specifically, CHUI represented to ELDAN JANN that he was affiliated with ZHOU, and that ZHOU was a licensed roofer. ELDAN JANN later spoke with ZHOU, at which time ZHOU represented to ELDAN JANN that he was a licensed roofer with twenty-plus years in the roofing business. (emphasis added.)

Zhou demurs on the grounds that “[n]owhere does the Cross Complainant mention when and where the statement was made.” (Demurrer p. 6:3-4.) In opposition, Plaintiff contends that paragraph 7 alleges that “in or about late January 2024” the purported representation was made. (Opp. pp. 5-6.)

Here, the court disagrees with Plaintiff that “later” could mean “the next decade.” (Reply p. 2:15-16.) Clearly, reading the allegations in the light most favorable to the pleader, “later” means sometime shortly after the initial conversation in January 2024 and sometime before work began; this timeline does not involve a “guessing game when attempting to determine when….any misrepresentations may have occurred.” (Reply p. 2:23-25.) Notwithstanding, defendants do not otherwise address the other elements and requirements (e.g., induce reliance).

Like a claim for fraud, each element of a cause of action for negligent misrepresentation must be factually and specifically alleged. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) The elements of a cause of action for negligent misrepresentation are: (a) The defendant must have made a representation as to a past or existing material fact; (b) The representation must have been untrue; (c). Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true; (d) The representation must have been made with the intent to induce plaintiff to rely upon it; (e) The plaintiff must have been unaware of the falsity of the representation; he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation; (f) And, finally, as a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage. (Demurrer p. citing Continental Airlines, Inc. v. McDonnell Douglas Cor., (1989) 216 Cal.App.3d 388, 402).

For similar reasons stated above, the cross complaint fails to allege certain elements (e.g., Plaintiff made the purported representation with the intent to induce Cross Complainants to rely on it). (The opposition consolidated the analysis as to the 1^st and 2^nd COAs.)

Therefore, the court sustains the demurrer as to the 2^nd COA with leave to amend.

For the same reasons above, the demurrer to the 3^rd COA is sustained with leave to amend.[3]

A party shall file a cross-complaint against any of the parties who filed the complaint or CC against him or her before or at the same time as the answer to the complaint or CC. A party shall obtain leave of court to file any cross-complaint except one filed within the time specified. Code of Civil Procedure §428.50. (a) and (b).

Here, Defendants filed and Answer on May 22, 2024, and a Cross-Complaint May 28, 2024, six (6) later. Defendants failed to seek leave of Court as required. But a review of the proof of service indicates that the CC was served on May 20, 2024. As technical errors happen, the court finds the POS sufficient evidence that the CC was otherwise timely served. Plus, the court would exercise its discretion pursuant to CCP section 473 and its inherent authority to enlarge the time for the CC to have been filed.

As the court has sustained with leave to amend the COAs predicated upon intentional or fraudulent misrepresentations/concealment, this issue is MOOT.

Based on the foregoing, the demurrer is sustained in its entirety and the MTS is moot in part and denied in part.

[1] There are two named plaintiffs but the demurrer and motion are filed by only one plaintiff; it is unclear which plaintiff, but the court presumes it is Zhou.

[2] The MTS starts at p. 40 of 75 of the PDF.

[3] Plaintiff avers that the cross-complaint does, for example, allege that Eldan did rely upon the alleged misrepresentation that Zhou was a licensed roofer, and cites to Paragraph 32. (Opp. p. 7:3-4.) However, that paragraph states: “At all times herein mentioned, ZHOU and CHUI intentionally failed to disclose important facts to ELDAN JANN, to wit, that CHUI was not a licensed roofer.” That is conclusory.