TENTATIVE RULING

Defendant Samuel Luke Llaneras’ Demurrer to Complaint is SUSTAINED with twenty (20) days leave to amend as to the third cause of action.

Defendant Samuel Luke Llaneras’ Motion to Strike Portions of the Complaint is GRANTED with twenty (20) days leave to amend as to the claims for exemplary damages.

Plaintiff Alex Hakimfar may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Samuel Luke Llaneras to give notice. 

REASONING

Defendant Samuel Luke Llaneras (“Defendant”) demurs to the third cause of action for fraud in Plaintiff Alex Hakimfar (“Plaintiff”)’s complaint and moves to strike Plaintiff’s claims and prayer for punitive or exemplary damages. Plaintiff filed late oppositions to the motions. The Court has reviewed the oppositions and finds no responses are needed; thus, the Court opts to proceed with deciding the motions.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

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.)

Third Cause of Action: Fraud

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

In the third cause of action, Plaintiff alleges that Defendant represented that he would sell luxury watches to Plaintiff at a discount price so Plaintiff could resell the watches at a profit, Plaintiff advanced funds for the watches but Defendant failed to deliver the watches or return Plaintiff’s money, Defendant only intended to perform initially to induce Plaintiff to keep entering into these transactions, and Plaintiff  has been damaged by the amount of money that Plaintiff paid to Defendant without receiving the luxury watches in return and for the profits Plaintiff would have realized had Defendant fully performed as agreed. (Compl., pp. 5-6.) Such allegations do not sufficiently state a claim for fraud. Plaintiff fails to allege the specific nature of what was communicated to him by Defendant to induce him to pay Defendant and facts that would support a finding that such representations were false and that Defendant knew they were false. As stated, Plaintiff’s claim appears to be no more than a breach of contract claim. Plaintiff must allege specific facts as to each element of fraud for this claim to move forward. Thus, Defendant’s demurrer to the third cause of action is SUSTAINED with twenty (20) days leave to amend.

Motion to Strike

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

As stated above, Plaintiff has failed to sufficiently allege fraud by Defendant, and his prayer for exemplary damages is based on claims of fraud in the same manner. Plaintiff has not alleged any other facts showing malice or oppression by Defendant. Thus, Defendant’s motion to strike Plaintiff’s claims for exemplary damages is GRANTED with twenty (20) days leave to amend.