Judge: Donald F. Gaffney, Case: "Freeze Management, Inc. v. The PRJKT Concessions, LLC", Date: 2022-08-24 Tentative Ruling

TENTATIVE RULING:

Defendant Alicia Whitney’s Demurrer to the Third Amended Complaint (“TAC”) is SUSTAINED without leave to amend. Based on the ruling on the Demurrer, the Motion to Strike is moot.

Plaintiff’s Request for Judicial Notice is GRANTED. The court considered Plaintiff’s late Opposition because Defendant filed a full Reply.

On 2/23/22, the court sustained without leave to amend the Demurrer to the Second, Third, Fourth and Fifth Causes of Action of the Third Amended Complaint as to PRJKT Concessions. (ROA 436.) The inadequate allegations alleged against PRJKT are equally inadequate as alleged against Defendant Whitney.

First Cause of Action for Breach of Contract

One of the key elements of breach of contract is that Plaintiff and Defendant entered into a contract. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) The TAC alleged that Freeze Management and only PRJKT entered into an oral contract. (Paragraph 25.) Plaintiff’s Opposition to the Demurrer does not even address the First Cause of Action.  As to the First Cause of Action, which fails to state a cause of action for breach of contract, the Demurrer is sustained without leave to amend.

Second Cause of Action for Interference with Contractual Relationships

“The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

Plaintiff alleged “substantial financial relationships with numerous clients and businesses,” (Page 8, line 13-14) but Plaintiff did not identify the contract and that Whitney knew of the existence of the contract. As to the Second Cause of Action, which fails to state a cause of action for interference with contractual relationship, the Demurrer is sustained without leave to amend.

Third Cause of Action for Interference with Prospective Economic Advantage

“[T]he elements of the tort of interference with prospective business advantage are: 1) an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff; 2) knowledge by the defendant of the existence of the relationship; 3) intentional acts on the part of defendant designed to disrupt the relationship; 4) actual disruption of the relationship; and 5) damages proximately caused by the acts of defendant.” (Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 840–841.)

Plaintiff alleged that it had “established and prospective relationships with numerous clients and businesses.” (TAC, Page 11, lines 12-13). Plaintiff failed to identify the client and Whitney’s knowledge of the client. As to the Third Cause of Action, which fails to state a cause of action for interference with prospective economic advantage, the Demurrer is sustained without leave to amend.

Fourth Cause of Action for Fraudulent Concealment

“‘[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’” (SCC Acquisitions Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 864.)

“’In California, fraud must be pled specifically; general and conclusory allegations do not suffice. . . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) (Emphasis original). Plaintiff failed to allege the elements of this cause of action, including a failure to allege why Defendant Whitney had any duty to disclose to Plaintiff.

As to the Fourth Cause of Action, which fails to state a cause of action for fraudulent concealment, the Demurrer is sustained without leave to amend.

Without Leave to Amend: Code Civ. Proc., § 430.41

(e)(1) provides that “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.”

Plaintiff did not address the requirements of Code Civ. Proc., § 430.41 (e)(1). Plaintiff failed to make the required showing that “there is a reasonable possibility the defect can be cured to state a cause of action.” Therefore, the Demurrer is sustained without leave to amend.

Moving party to give notice.