Judge: Gail Killefer, Case: 21STCV35206, Date: 2022-11-07 Tentative Ruling

Case Number: 21STCV35206    Hearing Date: November 7, 2022    Dept: 37

HEARING DATE:                 November 7, 2022

CASE NUMBER:                  21STCV35206

CASE NAME:                        Amerigrade v. Izurieta Fence Company, Inc., et al.

MOVING PARTIES:             Defendants, Izurieta Fence Company, Inc. and Peter Izurieta

RESPONDING PARTY:       Plaintiff, Amerigrade

TRIAL DATE:                        Not set.

PROOF OF SERVICE:          OK

MOTION:                               Defendants’ Demurrer to Complaint; Motion to Strike Portions of Complaint

OPPOSITION:                       October 25, 2022

REPLY:                                  October 31, 2022

Tentative:                                Defendants’ demurrer to the second cause of action of the Complaint is sustained. Defendants’ motion to strike is also granted. Plaintiff is granted 20 days leave to amend from this date. Defendants are to provide notice.

Background

This action arises in connection with an agreement between Amerigrade (“Plaintiff”) and Defendant Izurieta Fence Company, Inc. (“Company”) to construct security fences around the perimeter of properties located at 13217 and 13219 Filmore Street, Los Angeles (“Subject Properties”).  Plaintiff alleges Company and Defendant Peter Izurieta (collectively “Defendants”) failed to install 10-feet tall security fences around the perimeter of the Subject Properties, per their agreement, resulting in entry, vandalism, theft, and property damage.  

Plaintiff’s operative Complaint alleges causes of action as follows: (1) breach of contract, (2) fraud, (3) negligence, (4) intentional tort, and (5) property damage.

Defendants now demur the Complaint’s fraud cause of action and move to strike the claim for punitive damages of the Complaint. Plaintiff opposes both motions.

DEMURRER[1]

Discussion

I.                   Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .”  (Berkley v. Dowds (2007) 152 Cal.App.4^th 518, 525 (Berkley).)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4^th 594, 601.)  “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.”  (Duval v. Board of Trustees (2001) 93 Cal.App.4^th 902, 906.)   

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4^th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)  “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5^th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4^th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4^th 612, 616.)   

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4^th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)   

II.                Analysis

A.     Second Cause of Action: Fraud

The elements of fraud are (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud—i.e., induce reliance; (4) justifiable reliance; and (5) resulting damage.  (Small v. Fritz Companies, Inc. (2003) 30 Cal.4^th 167, 173.)  The policy of liberal construction of the pleadings ordinarily does not apply to causes of action for fraud, and fraud must be pled with particularity.  (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (Stanfield).)  “The particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ”  (Ibid., emphasis in original.)  “[A] nondisclosure claim arises when the defendant makes representations but fails to disclose additional facts which materially qualify the facts disclosed, or which render the disclosure likely to mislead.”  (Roddenberry v. Roddenberry (1996) 44 Cal.App.4^th 634, 666.)   

Defendants contend that the second cause of action is insufficiently pled because the Complaint does not plead fraud with sufficient particularity. (Demurrer Memorandum (“MPA”), 4-5.) Specifically, Defendants contend there “are no allegations in Plaintiff’s Complaint regarding who made allegedly fraudulent representation, their authority to speak, to whom they spoke, what was said or written nor when it was said or written.” (Id.) Defendants further contend the contentions in the fraud claim are in direct contradiction with the claims made for property damage, which allege Defendants installed a portion of the fencing. (MPA, 5; Complaint, 8.)

In opposition, Plaintiff contends that the second cause of action is alleged with sufficient particularity, and incorporates all plead factual allegations throughout the Complaint. (Opposition, 3-4.) Plaintiff mainly points to pages 4 and 7 of the Form Complaint. In reply, Defendants contend allegations regarding the fraud claim “are mere conclusions unsupported by any facts.” (Reply, 2.)

Here, the Complaint alleges “Defendants did not intend to install [the fencing]... despite being paid the total amount;” Defendants knew these representations were false; and Plaintiff suffered damages due to the fencing not being installed. (Complaint, 4, 7.)

Given the foregoing, the court finds that Plaintiff’s second cause of action is insufficiently pled. As discussed above, the sole factual allegation in the Complaint regarding Defendant’s alleged fraud appears to be that Defendants received payment and did not complete the installation of the fencing surrounding the Subject Properties. The Complaint fails, however, to allege any of the other elements of fraud, including, by way of example, what statements Defendants made to Plaintiff, whether Defendants knew this statement to be false or whether Defendants intended to defraud Plaintiff with this statement at the time it was made, beyond mere conclusory statements to such effect. As such, Plaintiff has failed to allege fraud with sufficient particularity.

Accordingly, Defendant’s demurrer to the second cause of action is sustained.

Conclusion

Defendants’ demurrer to the second cause of action of the Complaint is sustained. Plaintiff is granted 20 days leave to amend from this date. Defendants are to provide notice.

MOTION TO STRIKE

Defendants also move to strike all of the following from the Complaint:

1.      Prayer for “Exemplary Damages” on Page 2, Paragraph 10.d. of the prayer for relief in Plaintiff’s Complaint;

2.      Paragraph Ex-1, Page 9 of the Complaint: “As additional damages against defendant (name): Izurieta Fence Company, Inc., Peter Izurieta and Does 1 to 100 Plaintiff alleges defendant was guilty of malice, fraud, oppression as defined in Civil Code section 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and to punish defendant.”

3.      Paragraph Ex-2, Page 9 of the Complaint: “The facts supporting plaintiff’s claim are as follows: Plaintiff hereby incorporates by reference all paragraphs of this Complaint as through fully set forth herein. As discussed in the preceeding [sic] paragraphs, causes of actions and this complaint, Defendants engaged in malicious, fraudulent and malicious acts and/or omissions to acts against the Plaintiff.”

(Notice of Motion, 2.)

Discussion

CCP § 436 provides: “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.”¿ The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”¿ (CCP § 437.)¿¿¿ 

Motions to strike are used to challenge defects in the pleadings not subject to demurrer.¿ (Ferraro v.¿Camarlinghi¿(2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)¿ Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.¿ (CCP § 435(b)(1).)¿ The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.”¿ (CCP § 452.)¿ The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.”¿ (Clauson v. Sup. Ct.¿(1998) 67 Cal.App.4th 1253, 1255.) 

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (CCP § 3294(a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”¿ (CCP § 3294(c)(1).)¿ “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”¿ (CCP § 3294(c)(2).)¿ “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿ (CCP § 3294(c)(3).)¿¿A¿plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.”¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864.)¿ 

Defendants contend that each of the above portions of the Complaint should be stricken because they consist of improperly pled punitive damage allegations, as the “the gravamen of Plaintiff’s Complaint” is a breach of contract action. (Motion, 4-7.)

In opposition, Plaintiff contends Brousseau is inapplicable here as the case deals with a medical malpractice claim, and only pertains to such medical malpractice causes of action. (Opp., 2.) Plaintiff thus contends “Defendant’s [sic] motion to strike is obviously boilerplate without proper legal analysis being applied and should be denied as Plaintiff’s complaint is not a complaint for Medical Malpractice.” (Id.) However, Plaintiff fails to show how the Complaint has properly pled a request for punitive damages pursuant to CCP § 3294.

As such, the court finds Plaintiff has not alleged sufficient facts to show Defendant acted with malice, oppression, or fraud pursuant to CCP § 3294, beyond mere conclusions. Accordingly, the court grants Defendant’s motion to strike.

Conclusion

Defendants’ motion is granted. Defendants are to provide notice.