Judge Helen Zukin, Case 22SMCV00580 2022-09-09 Tentative Ruling

Judge: Helen Zukin, Case: 22SMCV00580, Date: 2022-09-09 Tentative Ruling

Case Number: 22SMCV00580 Hearing Date: September 9, 2022 Dept: 207

Background

This action stems from a dispute regarding construction work performed at a property owned by Plaintiff Perry Roshan-Zamir (“Plaintiff”) in Santa Monica, California. Plaintiff’s operative Complaint was filed on April 25, 2022, and asserts causes of action against Defendants J Powers Electric and Evans Joel Coronado (collectively “Defendants”) for negligence, breach of contract, and intentional misrepresentation, alleging Defendants failed to pull required permits for electrical work at the property. Defendants bring this demurrer to Plaintiff’s causes of action for breach of contract and intentional misrepresentation pursuant to Code Civ. Proc. § 430.10(e) and (g).

Demurrer Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Analysis

1. Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to “meet and confer in person or by telephone” with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading to resolve the objections to be raised in the demurrer. (C.C.P. § 430.41(a).) Defendants here have not satisfied this requirement. Rather than engage in the required telephonic or in person meet and confer, Defendants sent a single email to Plaintiff stating the grounds for this demurrer. (Shrager Decl. at ¶¶2-3.) This is insufficient. Nonetheless, the Court will consider the merit of Defendants’ demurrer. (Code Civ. Proc. § 430.41(a)(4).)

2. Timeliness

Plaintiff contends the demurrer is untimely. On July 8, 2022, Plaintiff filed a proof of service showing Defendant Evans Joel Coronado (“Coronado”) was personally served on May 7, 2022. Plaintiff has filed no such proof of service as to Defendant J Powers Electric.

Code Civ. Proc. § 430.40(a) provides “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” As Coronado was served on May 7, 2022, he had thirty days, until June 6, 2022, to timely file a demurrer pursuant to section 430.40. No such demurrer was filed by Coronado or J Powers Electric on or by June 6. More than a month later, on July 8, Defendants jointly filed a declaration in support of an automatic 30-day extension of time to bring their demurrer pursuant to Code Civ. Proc. § 430.41(a)(2).

Plaintiff acknowledges Defendants were given an extension of time from the original June 6 deadline to respond to Plaintiff’s Complaint, but Plaintiff notes this extension was limited to filing an answer. Defendants acknowledge Plaintiff only offered to extend their time to answer the Complaint but argues “Defendants never agreed to that limitation.” (Reply at 1.) But if Defendants did not agree to Plaintiff’s offer, then there was no extension of their time to respond and Coronado’s response to the Complaint was due on June 6.

Defendants argue the demurrer is timely because it was brought within 30 days of the filing of the declaration pursuant to Code Civ. Proc. § 430.41(a)(2). However, to take advantage of the automatic 30-day extension of time provided by section 430.41, the declaration must be filed and served “on or before the date on which a demurrer would be due.” (C.C.P. § 430.41(a)(2).) Defendants’ declaration was filed on July 8, more than a month past the June 6 date upon which Coronado’s demurrer was due pursuant to Code Civ. Proc. § 430.40(a). The declaration was thus untimely and did not extend either of their time to bring this demurrer.

The Court finds Defendants’ demurrer is thus untimely as to Defendant Coronado. It is unclear whether the same is true for Defendant J Power Electric. As noted above, no proof of service has been filed showing when, if ever, J Power Electric was served with process in this action and thus the Court cannot determine when the 30-day deadline imposed by Code Civ. Proc. § 430.40(a) began to run as to J Power Electric.

The Court has discretion as to whether to consider a defendant’s demurrer despite its untimeliness. “The court may, in furtherance of justice, and on any terms as may be proper, … enlarge the time for answer or demurrer.” (C.C.P. § 473(a)(1); see also McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.) The Court in its discretion will consider Defendants’ demurrer. The law favors the resolution of disputes on their merits. This demurrer is brought jointly by Coronado and J Power Electric, and Plaintiff has not shown J Power Electric was untimely in bringing this demurrer. The Court must thus reach the merits of Defendants’ arguments regardless of Coronado’s untimeliness. As the Court must adjudicate the demurrer on its merits, the Court perceives no prejudice to Plaintiff in considering the demurrer on its merits as to both Coronado and J Power Electric.

3. Breach of Contract

Defendants argue it cannot be ascertained whether the contract which is alleged to form the basis of Plaintiff’s claim for breach of contract is written, oral, or implied by conduct. Plaintiff argues Defendants are demurring to this cause of action on the grounds of uncertainty under Code Civ Proc. § 430.10(f), arguing demurrers on grounds of uncertainty are disfavored and the Complaint is not uncertain. This is incorrect. Defendants’ demurrer is expressly brought under Code Civ. Proc. §§ 430.10(e) and (g), not (f).

Plaintiff’s Complaint alleges Plaintiff entered into an agreement with Defendants wherein Defendants agreed to perform work at the subject property. (Complaint at ¶ 10.) The Complaint does not state whether this alleged agreement was written, oral, or implied by conduct. Under Code Civ. Proc. § 430.10(g), a demurrer properly lies where, in an action founded upon a contract, “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” Accordingly, the Court SUSTAINS Defendants’ demurrer to the cause of action for breach of contract under Code Civ. Proc. § 430.10(g) with leave to amend.

As to Defendants’ demurrer under section 430.10(e), to state a cause of action for breach of contract, Plaintiff must allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Aside from the issue noted above with regard to the form of the alleged contract, the Court finds Plaintiff has stated sufficient factual allegations to state a cause of action against Defendants for breach of contract. The Complaint alleges the existence of an agreement, the parties’ respective obligations under the alleged agreement, Defendants’ breach, Plaintiff’s performance, and damages. (Complaint at ¶¶ 10-12, 16-19.) Defendants’ demurrer to the cause of action for breach of contract under Code Civ. Proc. § 430.10(e) is OVERRULED.

4. Intentional Misrepresentation

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Defendants argue Plaintiff’s claim for intentional misrepresentation is not pled with the requisite level of specificity. The Court agrees. Plaintiffs’ cause of action for fraud is contained in paragraphs 30-43 of the Complaint. Those paragraphs do not identify any specific statement which is alleged to form the basis of Plaintiff’s misrepresentation claim. Plaintiff alleges Defendants agreed to perform work at Plaintiff’s property, but it is unclear if this agreement itself is the alleged misrepresentation forming the basis of Plaintiff’s claim. For example, in paragraph 38 Plaintiff alleges “Defendants represented to Plaintiff that they would comply with the AGREEMENT” yet does not specify when this representation was made, by whom, or whether this was a separate representation beyond forming the purported agreement itself. Paragraph 39 alleges “Defendants employed devices to conceal the truth from the Plaintiff” but does not specify what these alleged devices were.

In sum, the Court finds the Complaint falls short of the heightened pleading requirements for a claim based in fraud and Defendants’ demurrer to this cause of action is SUSTAINED with leave to amend.

Conclusion

Defendants’ demurrer to Plaintiff’s claim for breach of contract is SUSTAINED with 30 days’ leave to amend as to Defendants’ demurrer under Code Civ. Proc. § 430.10(g) and OVERRULED as to Defendants’ demurrer under Code Civ. Proc. § 430.10(e). Defendants’ demurrer to Plaintiff’s cause of action for intentional misrepresentation under Code Civ. Proc. § 430.10(e) is SUSTAINED with 30 days’ leave to amend.