Judge: Gregory Keosian, Case: 21STCV08534, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCV08534    Hearing Date: August 2, 2022    Dept: 61

Defendant Michael Vinokur’s Demurrer to the First Amended Complaint is SUSTAINED as to the fourth and fifth causes of action with 30 days leave to amend, and OVERRULED as to the seventh cause of action.

I.                   DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 (“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”))

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Vinokur demurrers to the fourth and fifth causes of action for negligent and intentional misrepresentation alleged against him in the FAC, as well as the seventh cause of action for unjust enrichment. Defendant argues that the allegations in the FAC as to fraud are not sufficiently specific, and that unjust enrichment is not a cause of action. (Demurrer at pp. 5–8.)

The elements of fraud are “(1) a representation, (2) that is false, (3) made with knowledge of its falsity, and (4) with an intent to deceive, coupled with (5) actual detrimental reliance and (6) resulting damage.” (Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 694.) “Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) “The tort of negligent misrepresentation does not require scienter or intent to defraud.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.) “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 (internal quotation marks omitted).)

The allegations concerning Vinokur’s alleged fraud are contained in this paragraph:

Throughout the project, and even after Plaintiff expressed concerns, Vinokur repeatedly represented to Plaintiff that, based on her past experience with them, REL and the Lavons were licensed, competent contractors who would perform good work and who would hire licensed subcontractors to competently perform trade-specific work. Vinokur’s representations to Plaintiff were untrue, but Vinokur intended for Plaintiff to rely on these representations to keep the project going and to dissuade Plaintiff from terminating Defendants.

(FAC ¶ 45.) Plaintiff alleges that these representations were false, in that REL the Lavons and certain of their subcontractors were not licensed, and that Plaintiff reasonably relied on them to his detriment. (FAC ¶¶ 61–64, 69, 72.)

Defendant argues that the alleged misrepresentations are non-actionable statements of opinion, rather than statements of material fact. (Demurrer at p. 8.) But the assertion that particular contractors possessed licenses to perform the work they were hired to perform is a straightforward allegation of fact.

However, Defendants are correct that the allegations are not sufficiently specific. There is no detail to any allegation of justifiable reliance, such as forbearance or inducement spurred by the misrepresentations. Nor does the FAC allege facts “show[ing] how, when, where . . . and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at p. 645.) Accordingly, the demurrer is SUSTAINED with leave to amend as to the fourth and fifth causes of action.

Defendant next argues that the seventh cause of action for unjust enrichment fails, because unjust enrichment is not a cause of action. (Demurrer at p. 8.) But although unjust enrichment is not a separate cause of action in California (Castillo v. Toll Bros., Inc. (2011) 197 Cal.App.4th 1172, 1210), courts have interpreted claims for unjust enrichment as claims based on quasi-contract or quantum meruit. (See McBride v. Boughton (2004) 123 Cal.App.4th 379, 388 fn. 6.) Thus the claim may proceed, and the demurrer to the seventh cause of action is OVERRULED.