Judge: Lee W. Tsao, Case: 23NWCV01381, Date: 2023-09-13 Tentative Ruling
Case Number: 23NWCV01381 Hearing Date: September 13, 2023 Dept: C
Winson international v. linares, et al.
CASE NO.: 23NWCV01381
HEARING: 9/13/23 @ 10:30 AM
#12
Defendants’
Demurrer as to the Sixth and Seventh Causes of Action of the Complaint is
SUSTAINED with leave to amend. Defendants’ Motion to Strike is GRANTED with
leave to amend.
Moving Party to give NOTICE.
Defendants EXP Realty of California, Inc. and
Leticia Dooley (Defendants) demur to Plaintiff Winson International, Inc.
(Plaintiff)’s Sixth, Seventh, and Ninth Causes of Action and move to strike
Plaintiff’s claims for punitive damages and attorney’s fees. Plaintiff has agreed to dismiss the Ninth
Cause of Action.
Plaintiff
hired Defendants to represent it to sell real property commonly known as 14411
Pontlavoy Avenue, Norwalk, California (the Property). Plaintiff alleges that
Defendants negligently and fraudulently represented Plaintiff as its real
estate agents in the sale of the Property to Defendants Humberto Linares,
Gabriela Castillo (Buyer Defendants). Plaintiff alleges that Defendant Ticor Title
Company of California (Ticor) negligently recorded the title.
Legal
Standard
The party against whom
a complaint has been filed may object to the pleading, by demurrer, on several
grounds, including the ground that the pleading does not state facts sufficient
to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an
entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)
Motions
to strike are used to reach defects or objections to pleadings which are not
challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (CCP
§§ 435, 436 & 437.) A motion to strike lies only where the pleading has
irrelevant, false or improper matter, or has not been drawn or filed in
conformity with laws. (C.C.P. § 436.) The grounds for moving to strike must
appear on the face of the pleading or by way of judicial notice. (C.C.P. §
437.)
Discussion
Here, Defendants demur to Plaintiff’s Sixth and
Seventh Causes of Action for Fraud on the basis that both fail to plead
sufficient facts with particularity and to Plaintiff’s Ninth Cause of Action
for Cancellation of Written Instrument. Plaintiff has agreed to dismiss the
Ninth Cause of Action. Defendants move to strike Plaintiff’s punitive damages
request on the grounds that Plaintiff failed to properly plead ultimate facts
with particularity. Defendants move to strike Plaintiff’s request for
attorney’s fees on the grounds that Defendants were not a party to the contract
that Plaintiff relies upon to support its claim for attorney’s fees.
Plaintiff’s Sixth and Seventh Causes of Action
for Fraud fail to plead sufficient facts with particularity because Plaintiff
fails to allege when and by what means the fraudulent representations were
tendered. The particularity requirement in pleading fraud " ‘necessitates
pleading facts which show how, when, where, to whom, and by what means the
representations were tendered.’ [Citation.]" (Lazar v. Superior Court
(1996) 12 Cal.4th 631, 645.) Plaintiffs allege “Defendant Letty promised
Defendants Linares and Castillo that if they used her husband, as the
contractor for any repairs, including the repair of the HVAC unit and
performing landscaping work, on the 8032 Property, Defendant Letty would ensure
that their offer for the purchase of the 8032 Property gets accepted. Thus,
said offer was the only one presented to Plaintiff.” (Complaint, ¶19.) However, Plaintiff has not alleged when or by
what means the alleged representations were made as to both the Sixth and
Seventh Causes of Action. Therefore, Plaintiff’s Sixth and Seventh Causes of
Action fail to plead sufficient facts with particularity to support a fraud
cause of action. Thus, Defendants’ demurrer to the Sixth and Seventh Causes of
Action is sustained.
Plaintiff has failed to plead ultimate facts to
support a claim for punitive damages. Plaintiff seeks punitive damages pursuant
to its Third, Firth, Sixth, and Seventh Causes of Action. “In order to survive
a motion to strike an allegation of punitive damages, the ultimate facts
showing an entitlement to such relief must be pled by a plaintiff.” (Clauson
v. Sup. Ct..(1998) 67 Cal. App. 4th 1253, 1255.) As discussed above,
Plaintiff has failed to properly allege its fraud causes of action.
Additionally, Plaintiff’s conclusory allegations that “Defendants’ conduct was
despicable, constitutes oppression, fraud and malice within the definition of
California Civil Code section 3294, and was done with willful and
conscious disregard for Plaintiff’s rights” are not sufficient ultimate facts
to support a claim for punitive damages. Thus, Defendants’ Motion to Strike
Plaintiff’s Claims for Punitive Damages is granted.
Plaintiff has pled sufficient facts to support
a claim for attorney’s fees as to the Buyer Defendants only. The contract
attached to the Complaint is between Plaintiff and the Buyer Defendants. Thus,
the alleged attorney’s fees provision is not enforceable against Defendants.
Thus, Defendants’ Motion to Strike Plaintiff’s Prayer for Attorney’s Fees as to
All Causes of Action is granted.
This is the first demurrer and motion to strike
in this action, thus, leave to amend is granted.
Accordingly, Defendants’
Demurrer as to the Sixth and Seventh Causes of Action is SUSTAINED with leave
to amend. Defendants’ Motion to Strike is GRANTED with leave to amend as to the
following:
·
Page 9, lines 20 to 21: “By reason of such
conduct, Plaintiff is entitled to recover exemplary and punitive damages to the
maximum extent allowed by law.”
·
Page 11, lines 8 to 9: “By reason of such
conduct, Plaintiff is entitled to recover exemplary and punitive damages to the
maximum extent allowed by law.”
·
Page 12, lines 10 to 11: “By reason of such
conduct, Plaintiff is entitled to recover exemplary and punitive damages to the
maximum extent allowed by law.”
·
Page 13, lines 22 to 23: “By reason of such
conduct, Plaintiff is entitled to recover exemplary and punitive damages to the
maximum extent allowed by law.”
·
Page 16, lines 23 to 24: “Punitive damages in
an amount appropriate to punish defendants and deter others from engaging in
similar conduct.”
·
Page 17, line 15: “For attorneys’ fees….”