Judge Lee W. Tsao, Case Number: 22NWCV01772, Date: 2023-09-14 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01772, Date: 2023-09-14 Tentative Ruling

Case Number: 22NWCV01772 Hearing Date: September 14, 2023 Dept: C

MORENO v. CAMPOS

CASE NO.: 22NWCV01772

HEARING: 09/14/23

Defendant CHRISTINE CAMPOS’s unopposed Demurrer to Plaintiffs’ Complaint is SUSTAINED in part and OVERRULED in part.

Moving Party to give notice.

No Opposition filed as of September 11, 2023. Due by August 31, 2023. (CCP §1005(b).)

This breach of contract action was filed by Plaintiffs IGNACIO MORENO and CARLA ANN MORENO (“Plaintiffs”) against Defendants C&C MORTGAGE PROCESSING COMPANY; CHRISTINE CAMPOS; and JOSE LOZANO (collectively “Defendants”) on December 30, 2022.

Plaintiffs allege that “Plaintiffs and Defendants entered into an agreement to perform a home improvement renovation project at Plaintiff’s Property located at 9330 Mines Avenue, Pico Rivera, CA 90660 (‘Property’) on or about February of 2021, based on a verbal communications and representations about work to be performed. (‘Contract’).” (Complaint ¶16.) “Defendants materially breached the Contract by abandoning construction and performing work in a substandard manner that will require extensive repair and remediation. Defendants did not complete the required scope of work and the work they did complete was also installed in a substandard and deficient manner. Defendants did not timely complete their work.” (Complaint ¶21.)

Plaintiffs’ Complaint assert the following causes of action:

1. Breach of Contract;

2. Recovery of Compensation Paid to Unlicensed Contractor;

3. Fraud; and

4. Elder Abuse

Defendant CHRISTINE CAMPOS (“Defendant”) specially and generally demurs to each cause of action.

Uncertainty

A demurrer on grounds of uncertainty will not be sustained unless the pleading is so bad that the defendant cannot reasonably respond (Koury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) The Court does not find that the Complaint is so uncertain that Defendant cannot reasonably respond. The demurrer is not sustained on the basis of uncertainty.

First Cause of Action – Breach of Contract

Whether it is written, oral, or implied, the elements of a cause of action for breach of contract are as follows: (1) the existence of a contract; (2) Plaintiff’s performance or excused non-performance; (3) Defendants’ breach; and (4) resulting damage to Plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) “If an action is based on a breach of written contract, the terms must be set forth verbatim in the body of the complaint or a copy of the contract must be attached and incorporated by reference.” (Id. at 459.) Alternatively, if the claim is based on a written contract, then “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co., (2002) 29 Cal.4th 189, 198-199.) Terms of an oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640.)

Plaintiff’s allegations are insufficient to plead the existence of an oral contract— Plaintiff fails to allege any terms of the alleged contract between Plaintiff and Defendants, including obligations the alleged contract imposed upon the parties. The nature of the alleged contract and the parties’ rights and responsibilities thereunder are not alleged.

The demurrer to the first cause of action is SUSTAINED with 20 days leave to amend.

Second Cause of Action – Recovery of Compensation Paid to Unlicensed Contractor

“[A] person who utilizes the services of an unlicensed contractor may bring and action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” (Cal. Bus. & Prof. Code §7031(b).)

Plaintiff alleges that “Defendants C&C and Campos did not have a valid Contractor’s License at the time they accepted the payments from Plaintiff. Nor did they have a valid Contractor’s License during the period of time in which they performed any of the construction work, including the demolition and renovation of the kitchen at Property mentioned above.” (Complaint ¶29.)

Plaintiff’s allegations are sufficient to withstand demurrer at this time. Plaintiff is not obligated to proffer evidence at the pleading stage. The demurrer to the second cause of action is OVERRULED.

Third Cause of Action – Fraud

As argued by Defendant, a claim for Fraud is listed on the first page of Plaintiff’s Complaint, but there are no corresponding allegations pertaining to Fraud within the body of the pleading.

The demurrer to the third cause of action is SUSTAINED with 20 days leave to amend.

Fourth Cause of Action – Financial Elder Abuse

Financial elder abuse is defined by Welf. & Inst. Code §15610.60(a) as follows: “(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.” In order to state a claim for financial elder abuse, Plaintiffs must plead and prove the following: (1) the plaintiff was “elderly” within the meaning of the Elder Abuse Act, i.e., 65 years of age or older; (2) the defendant took or retained Plaintiffs’ property with the intent to defraud the plaintiff, for a wrongful use, or by undue influence; (3) the Plaintiffs were harmed; and (4) the Defendant’s conduct was a substantial factor in causing the Plaintiffs’ harm. (Knox v. Dean (2012) 205 Cal.App.4th 417.) A cause of action under the Elder Abuse Act must be alleged with particularity. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve "intentional," "willful," or "conscious" wrongdoing of a "despicable" or "injurious" nature.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)

The Complaint fails to allege facts that would give rise to direct liability against Defendant Campos for financial elder abuse. The Complaint contains no factual

allegations that Campos took, secreted, obtained, or retained Plaintiff’s property with an intent to defraud. Elder abuse is an intentional tort. Therefore, even if an alleged agent of Campos committed wrongdoing—Campos as a purported principal might only be liable for negligence—not the intentional tort of financial elder abuse.

The unopposed demurrer to the fourth cause of action is SUSTAINED with 20 days leave to amend.