Judge Curtis A. Kin, Case 21STCV46987 2022-09-27 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV46987, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV46987 Hearing Date: September 27, 2022 Dept: 72

DEMURRER

Date: 9/27/22 (9:30 AM)

Case: The Playhouse Group, LLC v. Kyle Lambert (21STCV46987)

TENTATIVE RULING:

Defendant Kyle Lambert’s Demurrer to Complaint is OVERRULED.

Defendant Kyle Lambert argues that plaintiff The Playhouse Group, LLC fails to allege standing. However, plaintiff alleges that defendant promised to manage the subject pizzeria in exchange for funding. (Compl. ¶¶ 4, 27, 34.) Based on this promise, plaintiff and its assignors contributed $150,100 to the pizzeria. (Compl. ¶¶ 10, 16, 30, 37.) “In determining the merits of a demurrer, all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) Even though other paragraphs of the Complaint describe defendant’s discussions with Rob Vinokur concerning the opening of the pizzeria, because plaintiff and its assignors were the entities that provided the capital to the pizzeria, a reasonable inference can be made that Vinokur was acting as the agent of plaintiff and the assignors. (Compl. ¶¶ 3, 13, 16, 30, 37.) Defendant’s demurrer based on standing is not well taken.

Defendant also argues that plaintiff pleads the existence of an oral agreement that is unenforceable under the statute of frauds. (Compl. ¶¶ 3, 4, 15.) However, plaintiff is not asserting a breach of contract cause of action. Accordingly, plaintiff is not seeking to enforce a contract that may be unenforceable under the statute of frauds. (Civ. Code § 1624(a).)

Rather, plaintiff is asserting causes of action based on defendant’s false promise to operate a restaurant in exchange for funding. A fraud cause of action can be maintained even if the oral agreement between plaintiff and defendant were unenforceable under the statute of frauds. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29-31.)

The first and second causes of action based on fraud are pled with the requisite particularity. The “particularity requirement [to plead fraud] 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, citing Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.) In the summer of 2020, defendant allegedly promised to contribute to and manage the pizzeria in exchange for funding from plaintiff. (Compl. ¶¶ 4, 9, 27, 34.) Defendant made this promise to Vinokur, on behalf of plaintiff and its assignors. (Compl. ¶¶ 27, 34.) The promise was made orally and in writing during an in-person meeting. (Compl. ¶¶ 3, 34.)

These allegations are adequately specific. Any ambiguity can be clarified in discovery. (Charpentier v. Los Angeles Rams Football Co. (1999) 75 Cal.App.4th 301, 312 [“Defendant cannot persuasively complain it misunderstands the fraud claim made here. If, as it complains, it is confused as to who made the representations and by what means, a little discovery should clear that up”].)

Defendant maintains that plaintiff fails to sufficiently plead defendant’s intent to defraud. “A cause of action for a false promise should plead facts to show the existence of two specific intentions of the promisor: an intention to cause the promisee to act by reason of the promise, and an intention at the time of the promise not to keep it.” (Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 708.) With respect to intent to induce reliance, plaintiff alleges that defendant promised to contribute to and manage the restaurant so that plaintiff would provide funding and defendant would no longer need to cook out of his home kitchen. (Compl. ¶¶ 4, 13, 28, 36.) With respect to defendant’s intention not to comply with the promise at the time the promise was made, “‘something more than nonperformance is required to prove the defendant's intent not to perform his promise.’ [Citation.].) (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) Here, plaintiff alleges that defendant’s lack of intention to comply with his promise is evidenced by defendant’s “complete mishandling of his management role,” including by failing to meet with Vinokur and other stakeholders regarding issues affecting the restaurant and stating that “did not care at all.” (Compl. ¶¶ 22, 23.) Plaintiff’s allegations concerning defendant’s intent are more than conclusory.

With respect to the third cause of action pursuant to Business and Professions Code § 17200, because the fraud claims are adequately stated, the third cause of action is also adequately stated.

The demurrer is OVERRULED in its entirety.