Judge: Joel L. Lofton, Case: 23AHCV02237, Date: 2024-05-02 Tentative Ruling

Case Number: 23AHCV02237    Hearing Date: May 2, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     May 2, 2024                            TRIAL DATE:  Not set

CASE:                         WESLEY BARRY ROSS, an individual; and CANDY PEAK ROSS, an individual, v. AROLYN BURNS, individually and as representative of the AROLYN BURNS TRUST; PARK CALIFORNIA CONDOMINIUM ASSOCIATION, INC.; and DOES 1 to 30, Inclusive.

CASE NO.:                 23AHCV02237

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendants Arolyn Burns, Individually and as Representative of The Arolyn Burns Trust (“Moving Defendants”)

RESPONDING PARTY:      Plaintiffs Wesley Barry Ross and Candy Peak Ross (“Plaintiffs”) 

SERVICE:                              Filed April 5, 2024

OPPOSITION:                       Filed April 18, 2024

REPLY:                                   Filed April 25, 2024

RELIEF REQUESTED

            Moving Defendants demur to Plaintiffs’ eighth cause of action for fraud and move to strike punitive damages from the Complaint.

BACKGROUND

On September 26, 2023, Plaintiffs this action against Moving Defendants and Park California Condominium Association, Inc. alleging causes of action for (1) breach of contract, (2) breach of implied warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) negligence, (5) constructive eviction, (6) business & professions code section 17200 et seq., (7) violation of Civil Code section 1941.1, (8) fraud, and (9) breach of CC&RS. Plaintiffs allege that Moving Defendants knowingly rented an uninhabitable property to them.

TENTATIVE RULING

Moving Defendants’ demurrer to Plaintiffs’ eighth cause of action for fraud is OVERRULED.

            Moving Defendants’ motion to strike punitive damages is DENIED.

LEGAL STANDARD

Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1).)¿ The court¿may, upon a 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 California law, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subd. (b).)¿ An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.¿ (Code Civ. Proc., 431.10, 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.)

DISCUSSION

Fraud

            Moving Defendants demur to Plaintiffs’ eighth cause of action for fraud arguing that the cause of action is not pled with the required specificity.

“The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

However, an exception to the specificity rule arises “where it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.” (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825 (disapproved of on separate grounds in Silberg v. Anderson (1990) 50 Cal.3d 205).) 

“[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’” (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.) Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. (See Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.)

The Court finds the allegations sufficient to state a cause of action of fraud through concealment at this pleading stage. (Complaint, ¶¶89-94.)

Accordingly, the demurrer to the eighth cause of action is OVERRULED.

            Punitive Damages

            Moving Defendants also move to strike punitive damages from the Complaint.

Punitive damages are available in noncontract cases where the defendant is guilty of “oppression, fraud, or malice.” (Civ. Code § 3294(a), emphasis added.)  Conclusory allegations are insufficient to support a claim for punitive damages. (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 620.)  However, “the stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint.” (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

            As Plaintiffs have sufficiently pled a cause of action for fraud, Plaintiffs have also sufficiently alleged a claim for punitive damages based thereon.

            Accordingly, the motion to strike is DENIED.

CONCLUSION

            Moving Defendants’ demurrer to Plaintiffs’ eighth cause of action for fraud is OVERRULED.

            Moving Defendants’ motion to strike punitive damages is DENIED.

            Moving Party to give notice.

Dated:   May 2, 2024                          ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org