TENTATIVE RULING

Defendant Jonathan Bolerjack’s Motion for Judgment on the Pleadings as to Plaintiff’s First Amended Complaint is DENIED.

Defendant Jonathan Bolerjack to give notice. 

REASONING

Defendant Jonathan Bolerjack (“Defendant”) moves for judgment on the pleadings as to Plaintiff Mac Anderson d/b/a Stan Lee Collectibles (“Plaintiff”)’s sole cause of action for fraud and deceit on the ground that the allegations are contradictory and negate the element of justifiable reliance, and Plaintiff has not pled the fraud claim with the requisite particularity.

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.” (Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi, supra, 218 Cal.App.4th at p. 1013.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

In the First Amended Complaint (“FAC”), Plaintiff alleges that Defendant made misrepresentations to him that if Plaintiff would cover Defendant’s costs and expenses and provide Defendant with free memorabilia, Defendant would provide Plaintiff with certain photography and videography services. (FAC ¶ 15.) Plaintiff provides a list of dates on which those misrepresentations were made. (Ibid.) Plaintiff also states that Defendant concealed material facts from Plaintiff, including his intention to provide Plaintiff with the promised photography and videography services. (FAC ¶ 16.) Plaintiff believed the representations to be true, but when he learned they were false, Defendant again assured Plaintiff that all property would be returned to Plaintiff. (FAC ¶ 19.)

Defendant argues that Plaintiff alleges that Defendant did not intend to follow through with his contractual obligations, but Plaintiff elsewhere alleges in the FAC that Defendant “provided the photography and videography services he had agreed to provide pursuant to the Contract.” (FAC ¶ 11.) Defendant argues that Plaintiff did not rely upon the promises of future conduct when he covered Defendant’s travel expenses; rather, he relied upon Defendant’s provision of photography and videography services, which Plaintiff expressly alleges Defendant provided. The Court finds this to be a matter for the trier of fact. Based on the allegations, it may be that Defendant stopped providing the required services, despite having provided them before, which constituted a breach of the parties’ agreement, and Defendant had provided the services with an intent to induce Plaintiff to believe he would continue providing such services. Moreover, Defendant argues that Plaintiff has not sufficiently alleged the fraudulent statements, but there is no requirement that fraud be stated verbatim, and Plaintiff alleges that Defendant promised to provide photography and videography services on many identified dates in exchange for covering Defendant’s costs and providing Defendant with memorabilia. This sufficiently states a claim for fraud. Accordingly, Defendant Jonathan Bolerjack’s Motion for Judgment on the Pleadings as to Plaintiff’s First Amended Complaint is DENIED.