Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

Defendant/Cross-Plaintiff Kimberly Cooper (“Cooper”) is the owner of 6341 Gayton Place, Malibu, California, a single family home.  (First Amended Cross-Complaint (“FACC”) ¶1.)  Cooper commissioned demolition and investigative work from Fleming Construction Building Group, Inc. (“Fleming”).  (Id. ¶8.)   

According to Cooper, she requested only limited work by Fleming with the understanding that Fleming would not exceed the scope of the work requested.  (Id.)  Nonetheless, she claims Fleming demanded she pay for several items of work which were never commissioned by her.  (Id. ¶9.)  She alleges Fleming submitted multiple fraudulent invoices that materially misrepresented the work performed.  (Id. ¶¶ 11-16.) 

She also alleges Fleming negligently performed the work and removed doors, windows, electrical fixtures and plumbing which were functioning well.  (Id. ¶¶ 20-21.)  She claims she was not aware of the nature and extent of deficiencies in Fleming’s work until a subsequent investigation by a third party consultant in May 2021.  (Id. ¶22.)  

The operative FACC alleges claims for (1) negligence, (2) recovery on contractor’s license bond, (3) negligent misrepresentation, (4) intentional misrepresentation, and (5) violation of Bus. & Prof. Code §17200 (the “UCL”).        

This hearing is on Fleming’s demurrer and motion to strike the FACC.  Fleming demurs to the negligent misrepresentation claim on grounds that it is time-barred and to the intentional misrepresentation claim on grounds that Cooper has not sufficiently alleged the causal nexus between the alleged misrepresentations and her injuries.  Fleming also moves to strike the prayer for punitive damages because Cooper has not alleged a claim for intentional misrepresentation; the claim for attorneys’ fees as there is no statutory or contractual bases for such a claim; and the prayer for damages in connection with her UCL claim as there is no right to damages for such a claim.   

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike 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, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Fleming submits the Declaration of James Devine which shows the parties met and conferred by telephone.  This satisfies the requirements of Sections 430.41 and 435.5.   

 

DISCUSSION 

Negligent Misrepresentation 

Fleming argues that Cooper’s negligent misrepresentation claim is governed by a two-year statute of limitations and is time barred as it was filed more than two years after Cooper conceded she discovered the alleged wrongful conduct, in May 2021.  The Court agrees. 

“California courts have¿recognized a cause of action for negligent misrepresentation, i.e., a duty to communicate accurate information, in two circumstances.¿The first situation arises where providing false information poses a risk of and results in physical harm to person or property. The second situation arises where information is conveyed in a commercial setting for a business purpose.” (Hydro-Mill Co., Inv. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154-1155 (citing Friedman v. Merck & Co.¿(2003) 107 Cal.App.4th 454, 477).)  In the second situation, “the basis for liability in misrepresentation by those in the business of providing information is negligence,” and the two year statute of limitations for negligence applies.  (Id.) 

Here, the claimed misrepresentations were made in a commercial setting for a business purpose; Fleming provided the allegedly false invoices to Cooper for a business purpose, to seek repayment for professional services.  Accordingly, the two year statute of limitations applies, and Cooper does not dispute her claim would be time-barred if a two year statute of limitations applies.  For this reason, the Court sustains the demurrer to the negligent misrepresentation claim, without leave to amend. 

Intentional Misrepresentation 

Fleming argues that Cooper has failed to allege a causal nexus between the alleged misrepresentations (i.e., the fraudulent invoices) and her alleged injuries.  The Court agrees. 

Every element of the cause of action for fraud must be alleged specifically.  A plaintiff must specifically plead the “detriment proximately caused” by a defendant’s tortious conduct.  This requires factual allegations of both the injury or damage suffered and the causal connection between defendant’s misrepresentation and the alleged injury.  (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818.) 

Here, the claimed misrepresentations are allegedly fraudulent invoices submitted by Fleming to Cooper.  Notably, nowhere in the FACC does Cooper allege she actually paid any of these invoices, which would have established a direct causal connection between the alleged misrepresentations and her damages.   

Instead, in her Opposition, Cooper claims damages because “she planned to renovate her residence and procured a permit for it and was in the process of obtaining a construction loan in summer of 2018 when [Fleming] was one of the contractors who bid the job”, “she commissioned only limited work by [Fleming],” “based on [Fleming’s] demands, she has paid them monies for work they never performed,”  “[Fleming] performed demolition work in a substandard fashion,” “[Fleming], without authorization, removed windows and door and electrical fixtures of the residence and removal of those elements has caused damage to the rest of the residence,” and “she has been damaged by loss of use of her residence and loss of her rights under the renovations permit prosecuted by her.”  (Opp. at 6:21-7:3.)   

But none of these damages save one are directly caused by the submission of fraudulent invoices.  And the one damage that can be traced to the fraudulent invoices – the payment of such invoices – is actually never alleged in the FACC. 

Accordingly, because Cooper has failed to allege a causal connection between her claimed damages and the alleged misrepresentation, the Court sustains the demurrer to the intentional misrepresentation claim with leave to amend.  

  

Punitive Damages 

Given the Court’s ruling on Cooper’s fraud claim, there is no basis for Cooper’s claim for punitive damages.  Accordingly, the Court grants the motion to strike Cooper’s punitive damages claim with leave to amend. 

 

 

 

Damages for §17200 Claim 

Fleming argues that the Court should strike Cooper’s request for damages in connection with her cause of action for violation of Bus. & Prof. Code §17200 because damages are not awardable in such causes of action.  The Court agrees. 

The UCL limits the remedies available for its violation to restitution and injunctive relief, which are not at issue here.  “[T]he UCL ‘is not an all-purpose substitute for a tort or contract action.’ [Citation.] Instead, the act provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices. … [T]he ‘overarching legislative concern [was] to provide a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.’ [Citation.] Because of this objective, the remedies provided are limited.¿¿While any member of the public can bring suit under the act to enjoin a business from engaging in unfair competition, it is well established that individuals may not recover damages. [Citation.]” ¿Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150.) 

Accordingly, the Court grants Fleming’s motion to strike Cooper’s claim for damages in connection with her UCL claim.   

Attorneys’ Fees 

Fleming argues that Cooper is not entitled to attorneys’ fees where there is no contract or statute authorizing such relief.  The Court agrees. 

Code Civ. Proc. §1021 provides that except as provided by statute, the payment of attorneys’ fees is left to the agreement of the parties.  Absent a contractual or statutory basis, the rule is that the parties are not entitled to recover attorneys’ fees. 

“Under the American Rule, as a general proposition each party must pay his own fees.  This concept is embodied in section 1021 of the Code of Civil Procedure, which provides that each party is to bear his own fees unless a statute or agreement of the parties provides otherwise.”  (Gray v. Donn Miller & Assocs. Inc. (1984) 35 Cal.3d 498, 504.) 

Here, Cooper has not alleged any statutory or contractual basis entitling her to attorneys’ fees.  As such, the Court grants the motion to strike Cooper’s prayer for attorneys’ fees. 

 

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Fleming’s demurrer to the negligent misrepresentation claim without leave to amend and SUSTAINS the demurrer to the intentional misrepresentation claim with 20 days’ leave to amend.  The Court also GRANTS the motion to strike the punitive damages claim with 20 days’ leave to amend and GRANTS the motion to strike the prayer for damages in connection with the §17200 claim and for attorneys’ fees without leave to amend.   

IT IS SO ORDERED. 

 

DATED: March 14, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court