Judge: David B. Gelfound, Case: 23CHCV03291, Date: 2025-03-12 Tentative Ruling

Case Number: 23CHCV03291    Hearing Date: March 12, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT

Motion filed: 12/4/24

MOVING PARTY: Defendant The Matt Horn Group

RESPONDING PARTY: None.

NOTICE: OK. 

RELIEF REQUESTED: An order from this Court granting Defendant’s demurrer to the Second Amended Complaint.

TENTATIVE RULING: The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

BACKGROUND

This case arises from alleged fraud involved in the transaction of the property located at 9862 Rincon Avenue, Pacoima, California 91311 (the “Subject Property”).

On October 30, 2023, Plaintiff Rodolfo Arreola (“Plaintiff” or “Arreola”) initiated this action.

On May 2, 2024, the Court sustained a demurrer filed by Defendant on March 25, 2024. (05/02/2024 Minute Order.) Subsequently, on June 10, 2024, Plaintiff filed a First Amended Complaint (“FAC”).

On September 24, 2024, the Court sustained in part a demurrer filed by Defendant on July 10, 2024, granting Plaintiff leave to amend as to Third Cause of Action within 30 days. (9/24/24 Minute Order.) Subsequently, on October 24, 2024, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendant The Matt Horn Group (“Defendant”) and Does 1 through 50, alleging the following causes of action: (1) Negligence, (2) Conversion, and (3) Misrepresentation.

On December 4, 2024, Defendant filed the instant Demurrer to Plaintiff’s SAC (the “Demurrer”).

No Opposition papers have been received by the Court.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A general demurrer is proper, and typically used, where the plaintiff fails to allege “facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.)

“The sufficiency of a cause of action is evaluated by presuming all of the material factual allegations in the complaint are true.” (Aubry v. TriCity Hospital Dist. (1992) 2 Cal 4th 962, 966 – 967 (Aubry).) In ruling on a demurrer, a court may consider facts that are properly subject to judicial notice.” (Arroyo v. Plosay, 225 Cal. App. 4th 279.) In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while "[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact." (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120, 135.) Additionally, “[a] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

“It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” Aubry, supra, 2 Cal. 4th at 967.)

A.    Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

Defendant’s counsel, Gonzalo Landaverde (“Landaverde”) attests that on November 26, 2024, he attempted to call Plaintiff at 12:25 p.m. to meet and confer regarding issues with the SAC. (Landaverde Decl. ¶ 4.) The call was not answered, and Landaverde left a voicemail in Spanish confirming that his office had received the SAC and requesting a call back to discuss the issues. (Ibid.) On November 27, 2024, Landaverde called Plaintiff again and left a voicemail in Spanish requesting a call back to meet and confer. (Id. ¶ 5.) On December 3, 2024, Landaverde made a third attempt to meet and confer with Plaintiff via the telephone; however, was only able to leave a voicemail in Spanish. (Id. ¶ 6.) Despite these efforts, no responses had been received from Plaintiff by the time of filing of the Demurrer. (Ibid.)

Based on the above records, the Court determines that the required meet and confer by a method of in person or by telephone was not satisfied despite Defendant’s good faith efforts to contact Plaintiff. However, this insufficiency does not constitute grounds to sustain or overrule a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Accordingly, the Court will proceed to review the merits of the Demurrer.

B.     Third Cause of Action – Misrepresentation

A claim for fraud must plead all of the following elements: (1) misrepresentation; (2)¿knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Particularity requires facts that show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12¿Cal.4th 631, 645 (Lazar).)

A claim for negligent misrepresentation must plead the following elements: (1) Assertion of an untrue fact; (2) Honestly made in the belief it is true; (3) But without a reasonable ground for such belief; (4) defendant’s intent to induce plaintiff’s reliance upon the representation; (5) plaintiff’s justifiable reliance upon the representation; and (6) resulting damage. (Melican v. Regents of Univ. of Cal. (2007) 151 Cal.App.4th 168, 182 (Melican); County of Kern v. Sparks  (2007) 149 Cal.App.4th 11, 20; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173-74; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402;  Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185(Charnay), fn. 14);  Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [requiring pleading specificity]; B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834-836 [relevant intent is to induce reliance, not to deceive]; Byrum v. Brand (1990) 219 Cal.App.3d 926, 940 [rejecting a cause of action for negligent misrepresentation based on unintentional omission or concealment]; see CACI 1903.)

When reviewing a demurrer, a court gives the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Berg & Berg Enterprise, LLC v.  Boyle (2009) 178 Cal.App.4th 1020, 1034.)

The SAC alleges that “[o]n or about between the 1st and the 15th of November of the year 2022, in the City of Porter Ranch, County of Los Angeles, State of California, Defendants, who were authorized by, and acting on behalf of THE MATT HORN GROUP Defendants, made verbal and written representations to Plaintiff. The verbal and written representations were that all Defendants had many years of experience in the real estate industry, and that the Defendants would apply their expertise in the sell of the Subject Property located at 9862 Rincon Avenue Pacoima, California 91331[.]” (SAC ¶ 9.) Additionally, “The verbal and written representations were in fact false, but that fact was not known at the time by Plaintiff.” (Ibid.) “The true facts were that first [] the defendants did not provide plaintiff a copy of said agreement.” (Id. ¶ 10.)

This allegation remains unchanged from the FAC. In ruling on the previous demurrer, the Court found that while this allegation summarizes Defendant’s representation – that they had many years of experience in the real estate industry – it fails to sufficiently state a necessary element of a misrepresentation claim – the falsity of the representation. The assertion that “the defendant did not provide plaintiff a copy of said argument” does not establish an untrue fact or falsity regarding the specific representation made. Similarly, allegations that Defendant “fail[ed] to exercise the level of care” or “apply their expertise” in the transaction do not concern the falsity of any asserted fact but rather suggest a breach of promise, which is distinct from the legal theory of misrepresentation.

Moreover, the SAC includes a vague claim that “Plaintiff is informed and believes, and based thereon alleges that Defendants, and each of them have caused misrepresentation to plaintiff in the regard to the sell of the subject property that was under sold according to the Real Estate Market Value at the time that it was sold according to proof at the date of trial.” (SAC ¶ 18.) Under the heightened pleading standard for a misrepresentation cause of action, this allegation lacks factual particularity and merely constitutes a conclusory statement of fact and law.

Furthermore, the SAC includes an additional page of text under the label of paragraph 20, which appears to reference fact patterns from an unrelated case, “Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc. 514 S.W.2d 429 (Tex. 1974).” (SAC at p. 7.) This material is irrelevant and constitutes improper matter within the pleading. Consequently, the Court does not consider it in reviewing the Demurrer.

            Accordingly, the Court concludes that Plaintiff has failed to sufficiently plead all requisite elements for the Third Cause of Action for Misrepresentation.

Based on the above, the Court SUSTAINS the Demurrer.

C.    Leave to Amend

Generally, courts allow leave to amend at least once unless it is clear that there is no possibility of overcoming the issue.  (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").) 

However, the burden of proving the existence of a reasonable possibility to cure the defect by amendment is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

            Here, Plaintiff has failed to oppose the Demurrer, thereby waiving any argument that the defects can be remedied. Moreover, Plaintiff has already been given two opportunities to amend the claim but has made no substantive changes to cure the deficiencies identified by the Court. The continued failure to allege additional facts suggests that further amendment would be futile.

            Accordingly, the Court finds that there is no reasonable possibility that Plaintiff can cure the defect through further amendment.

            The Court therefore SUSTAINS WITHOUT LEAVE TO AMEND the Demurrer.

CONCLUSION

Defendant The Matt Horn Group’s Demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.