Judge Lee W. Tsao, Case Number: 23NWCV00813, Date: 2023-09-05 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00813, Date: 2023-09-05 Tentative Ruling

Case Number: 23NWCV00813 Hearing Date: September 5, 2023 Dept: C

WILLIAM BROTHERS BUILDING & CONSTRUCTION v. ENG

CASE NO.: 23NWCV00813

HEARING: 9/5/23

TENTATIVE ORDER

Defendants Eng and McGrath’s demurrer to Plaintiff’s complaint is SUSTAINED with 10 days leave to amend.

Moving Parties to give NOTICE.

Defendants Eng and McGrath demurs to the 5^th cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain.

The Complaint alleges that on September 21, Plaintiff William Brothers Building & Construction entered into a home improvement contract with Defendant Eng. (Complaint, ¶ 8.) “Plaintiff referred ENG and her son, McGrath… to Plaintiff’s network of lenders to assist in financing the home improvement projects. Plaintiff was to receive $650,000 in payments in exchange for completion of the projects who agree to accept/carry the finance charges while the project was pending until Eng could refinance and/or the project passed final inspection and the ADU unit could have proof of occupancy.” (Id., ¶ 9.) “The Defendants have failed to pay the balance due under the contract, after due credits, in the amount of $200,000.” (Id., ¶ 12.) Based thereon, the Complaint asserts causes of action for:

1. Breach of Contract

2. Common Counts

3. Foreclosure of Mechanic’s Lien

4. Breach of Contract

5. Defamation

6. Intentional Interference with a Contractual Relationship

7. Intentional Interference with a Prospective Economic Relationship.

5^th CAUSE OF ACTION

DEFAMATION PER SE: The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or causes special damage. (CC §§ 45, 46; see Smith v. Maldonado (1999) 72 Cal. App. 4th 637, 645; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal. App. 4th 798, 809.) “In defamation cases California follows a similar pleading rule, under which “the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” (Glassdoor, Inc. v. Super. Ct. (2017) 9 Cal.App.5th 623, 635.)

¶ 32 alleges that “Plaintiff is informed and believes that Defendants made continuing disparaging and defamatory remarks imputing dishonesty and fraud in connection with its business practices in order to have Eng and/or McGrath reverse their loans with the various lenders who financed the work which had been completed by Plaintiff and for which Eng agreed to pay in accordance with the Settlement.” ¶ 33 alleges, “Plaintiff suffered injury from the defamatory remarks communicated to the lenders, Plaintiff’s staff, third parties, including but not limited to reversals of loans made to Plaintiff and cancellation of prospective contracts with other home improvement contracts which could no longer be financed and losses of financing agreements with the actual financing companies which were in place as part of Plaintiff’s network of lenders. Injury is presumed from the defamatory comments because it affects Plaintiff’s business reputation in the community.

The Complaint does not identify the substance of the disparaging or defamatory remarks. Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.