Judge Kerry Bensinger, Case Number: 23STCV21685, Date: 2024-05-15 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

This is a fraud and breach of contract action. Plaintiff Santiago Sanchez (“Sanchez” or “Plaintiff”) provides gardening services. As relevant here, Sanchez provided gardening services on the property of Defendant Suzanne De Passe (“De Passe” or “Defendant”) for approximately 18 years. From 2003 through May 2021, Sanchez performed services in the total sum of $36,000. De Passe did not pay the balance owed.

On September 8, 2023, Plaintiff filed a Complaint against Defendant for (1) Breach of Contract, (2) Fraud, and (3) Common Counts.

On March 15, 2024, Plaintiff filed the operative First Amended Complaint (FAC) against Defendant for (1) Breach of Contract, (2) Fraud, (3) Common Counts, (4) Accounting, and (5) Declaratory Relief.

On April 23, 2024, Defendant filed this Demurrer to the FAC, and concurrently filed a Motion to Strike the request for attorney’s fees and punitive damages from the FAC.

Before filing a demurrer or motion to strike, the party demurring and moving to strike must meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised.¿ (Code Civ. Proc., §§ 430.41(a). 435.5(a).)¿ Here, Defendant has satisfied the meet and confer requirement. (See Declaration of David Hakimfar, ¶¶ 4-6.)

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿¿¿

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿“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 California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the court that a pleading can be amended successfully. (Ibid.)¿

Defendant argues the FAC fails to allege facts sufficient to state a cause of action for breach of contract, fraud, common counts, account, or declaratory relief. The court addresses each in turn.

Plaintiff alleges that on “May 21, 2021, after receiving the Defendant’s last invoice making the total then due $ 36,000.00, Defendant sent Plaintiff the following signed writing acknowledging the debt and agreeing to pay it by July 2021: “Hi Chago 5/21/21 So sorry but I am not yet back to work. Hope to be whole [sic] sometime in July. Thank You, Suzanne”. This writing constitutes a written agreement as it acknowledges the debt due, confirms the agreement to pay it and is signed by the party to be charged, namely the Defendant.” (FAC, ¶ 22.) Further, “Defendant breached the parties’ agreement by failing to pay the outstanding balance owed by Defendant in the amount of $36,000.00.” (FAC, ¶ 23.)

Defendant argues the breach of contract claim fails because the FAC does not allege essential terms of the contract and mutual assent. Defendant further argues that the allegations lack specificity which prevents ascertaining whether a contract exists at all.

The elements of a breach of contract cause of action are: (1) the existence of a valid contract between the plaintiff and the defendant, (2) the plaintiff’s performance, (3) the defendant’s unjustified failure to perform, and (4) damages to the plaintiff caused by the defendant’s breach. (CACI No. 303; Careau & Co. v. Security Pacific Business, Inc. (1990) 222 Cal.App.3d 1371, 1388 (Careau); Otworth v. Southern Pac. Transportation (1985) 166 Cal.App.3d 452, 458.) “[T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth, 166 Cal.App.3d at pp. 458-459.)¿ The elements of a breach of oral contract claim are the same as those for a breach of written contract. (Careau, 222 Cal.App.3d at p. 1388.) A claim for breach of oral contract must be brought within two years of the breach. (Code Civ. Proc., § 339.)

Here, Plaintiff alleges that the parties entered into a written agreement. (See FAC, ¶ 22.) However, the alleged written agreement does not state the services to be performed or the amount to be paid for the services rendered. Further, contrary to Plaintiff’s position, the writing does not evidence Defendant’s promise to pay for (unidentified) services rendered. The allegations do not show that a written agreement was formed. As Defendant argues, the allegations lack sufficient specificity to apprise Defendant of the nature of Plaintiff’s claims. The FAC is vague.

Plaintiff alleges that De Passe “made material representations of fact, namely that she would agree to pay for the gardening services provided by Plaintiff, and that she would pay the outstanding balance owed to Plaintiff that accumulated.” (FAC, ¶ 26.) Further, De Passe “wrote several notes to Plaintiff indicating her gratitude for his patience in waiting to receive the outstanding balance owed to him, expressing her regret that she could not pay him yet, but with an indication that she would be paying off the outstanding balance owed. An example of several such representations made include the following:

c. “Dear Chago — I am sorry that I cannot address the outstanding invoices until I can go back to work. I appreciate your long standing patience S. de Passe”

d. “Hi Chago 5/21/21 So sorry but I am not yet back to work. Hope to be whole sometime in July. Thank You, Suzanne”.

Defendant argues that the FAC lacks the required specificity to state a claim for fraud and does not demonstrate Defendant’s intention to deceive or Plaintiff justifiable reliance on the misrepresentation.

“Fraud must be pleaded with specificity rather than with general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (cleaned up).) 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. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

“The facts essential to the statement of a cause of action in fraud or deceit based on a promise made without any intention of performing it are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent at the time of making the promise; (3) the promise was made with intent to deceive or with intent to induce the party to whom it was made to enter into the transaction; (4) the promise was relied on by the party to whom it was made; (5) the party making the promise did not perform; (6) the party to whom the promise was made was injured. (Regus v. Schartkoff (1957) 156 Cal.App.2d 382, 389.)

Here, the court finds that the allegations are pleaded with sufficient particularity to state a cause of action for fraud. Plaintiff specifically pleads the identity of the speaker (De Passe), what was said (see FAC, ¶ 27), to whom (Sanchez), and when at least one of the statements were made (see FAC, ¶ 27(d)). Plaintiff further alleges that De Passe “made these representations with the intent to defraud Plaintiff and induce Plaintiff to act by continuing to perform gardening services on Defendant’s promise that she would pay the outstanding balance. At the time Plaintiff acted, Plaintiff did not know the representations were false and believed they were true. Plaintiff acted in justifiable reliance upon the truth of the representations.” (FAC, ¶ 30.) Plaintiff relied on De Passe’s conduct and suffered damages in an amount of not less than $36,000. (FAC, ¶ 31.) Each element for a fraud claim has been sufficiently pleaded.

Plaintiff alleges that De Passe “became indebted to Plaintiff within the last four (4) years for work, labor, services, and materials rendered at the special instance and request of Defendant and for which Defendant promised to pay Plaintiff in the sum of $ 36,000.00.” (FAC, ¶ 33.)

Defendant argues that the Third Cause of Action lacks specific information on when the debt was incurred or when the payments were due. Thus, Defendant contends it is impossible to determine the appropriate limitations period.

A cause of action for services rendered must state that (1) Defendant requested, by words or conduct, that Plaintiff perform services for the benefit of Defendant, (2) Plaintiff performed the services as requested, (3) Defendant has not paid Plaintiff for the services, and (4) the reasonable value of the services that were provided. (CACI No. 371.)

Here, the Third Cause of Action fails. “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) The Third Cause of Action is based upon the same facts as the First Cause of Action and seeks to recover the same sum of money. As discussed above, the court has found that the breach of written contract claim fails for lack of certainty. Because the First Cause of Action is demurrable, the Third Cause of Action is demurrable on the same grounds.

Plaintiff alleges that he is owed payment from Defendant in the amount of not less than $36,000 and requests an accounting for all accounts owed by Defendant. (FAC, ¶ 37.)

“An action for an accounting has two elements: (1) that a relationship exists between the plaintiff and defendant that requires an accounting and (2) that some balance is due the plaintiff that can only be ascertained by an accounting. (Sass v. Cohen (2020) 10 Cal.5th 861, 869 (cleaned up).)

Plaintiff’s Fourth Cause of Action is deficient. “The action carries with it an inherent limitation; an accounting action is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” (Sass, at p. 869.) Here, Plaintiff seeks to recover a sum certain: $36,000. Plaintiff’s Fourth Cause of Action is barred.

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.”¿ (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, [cleaned up].) A demurrer to a declaratory relief cause of action may lie where it is wholly derivative of a claim that is invalid as a matter of law. (See Ball v. FleetBoston Fin. Corp. (2008) 164 Cal.App.4th 794, 800 [sustaining demurrer to declaratory relief claim which was wholly derivative of a statutory claim].)

Here, Plaintiff alleges, without more, that “[a]n actual controversy exists between Plaintiff and Defendant” which requires a judicial determination of the issues as alleged in the preceding paragraphs. (FAC, ¶¶ 38-40) As alleged, the Fifth Cause of Action is wholly derivative of the breach of contract and fraud claims. Moreover, there is no actual controversy as the allegations of the FAC make clear that past conduct is at issue. The Fifth Cause of Action is deficient.

Defendant seeks to strike the request for attorney fees and punitive damages from the FAC. She argues that the attorney fees are not supported by a statute or by contract and that there are insufficient allegations to support a claim for punitive damages. The court agrees. Plaintiff, having not filed an opposition to the Motion to Strike, does not offer any argument or authority to the contrary.[1]

The Demurrer to the First, Third, Fourth, and Fifth Causes of Action is SUSTAINED.

Plaintiff Santiago Sanches is to file and serve the Second Amended Complaint within 20 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)