Judge: Elaine W. Mandel, Case: 24SMCV00458, Date: 2024-07-11 Tentative Ruling

Case Number: 24SMCV00458    Hearing Date: July 11, 2024    Dept: P

Tentative Ruling

L. Kay v. S&S Waterproofing Inc. et al., Case No. 24SMCV00458

Hearing date July 11, 2024

Defendant S&S Waterproofing, Inc.’s Demurrer and Motion to Strike

Plaintiff homeowner sues defendants S&S Waterproofing, Inc., Satey, Broadway Air Conditioning, Heating and Sheet Metal and Merzel for construction defects, alleging: (1) breach of third-party beneficiary contract against S&S; (2) fraud – intentional misrepresentation against S&S and Satey; (3) defective construction against S&S and Satey; (4) conversion against S&S and Satey; (5) breach of third-party beneficiary contract against Broadway; (6) fraud – intentional misrepresentation against Broadway and Merzel; (7) defective construction against Broadway and Merzel; and (8) conversion against Broadway and Merzel.

Plaintiff contracted with Fort Hill Construction to provide labor and materials for a remodel. Id. at ¶ 9. Fort Hill subcontracted with S&S to provide waterproofing; Satey supervised and controlled S&S’s work. Id. at ¶¶ 10, 12-13. Plaintiff alleges S&S’s waterproofing work was defective. Id. at ¶ 16. Plaintiff alleges S&S represented it did not perform certain work that it had billed Fort Hill and for which plaintiff paid Fort Hill. Id. at ¶ 19.

S&S and Satey demur to the second and fourth causes of action and move to strike punitive damages.

A.    Second Cause of Action: Fraud – Intentional Misrepresentation

S&S and Satey argue the fraud cause of action has not been pleaded with the requisite specificity, fails to allege which invoice was allegedly falsely submitted and improperly conflates defendants without specifying their respective alleged conduct. Also, they argue the allegations insufficiently allege they knew the billing representations were false.

Plaintiff alleges S&S and Satey submitted false billing invoices that contained misrepresentations regarding the work S&S performed (Compl. ¶ 36). There is no allegation regarding who made these alleged misrepresentations, the date of invoices, etc.  

“The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” Lazar v. Sup.Ct. (1996) 12 Cal.4th 631, 645. Thus, because the complaint fails to allege the necessary details of these representations, the fraud claim is not sufficiently alleged. SUSTAINED with leave to amend.  

B.     Duplication re: Second and Fourth Causes of Action for Fraud and Conversion

S&S and Satey argue these causes of action are duplicative of the first cause of action for breach of third-party beneficiary contract, as they arise from the same facts.

However, the Court is not persuaded by this argument.  “[I]t is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (See CCP § 3537 [“Superfluity does not vitiate”].) This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.”  Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890. Further, plaintiff is entitled to plead in the alternative. OVERRULED.

Motion to Strike Punitive Damages

S&S and Satey also moves to the claim for punitive damages. MOOT, as the demurrer was sustained as to the fraud cause of action.