A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)
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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)
A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])
DISCUSSION
Meet and Confer
Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendant’s efforts to meet and confer insufficient, as there is no evidence counsel for Defendant attempted to meet and confer in person or telephonically. (Vallone Decl., ¶¶ 3-4.) Nevertheless, the Court may not overrule the demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will still consider the demurrer but admonishes Defendant to comply with these requirements going forward.
Analysis
To state a cause of action for fraudulent concealment, the plaintiff must allege: “(1) concealment or suppression of material fact, (2) duty to disclose the fact, (3) intent to conceal or suppress with intent to defraud, (4) plaintiff must have been unaware of the fact and would not have acted in such a manner had the plaintiff known of the concealment or suppression, and (5) resulting damage. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1198.) “[E]very element of the cause of action for fraud must be alleged in full, factually and specifically.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “Thus the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.] A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citation.]” (Lazar v. Superior Ct. (1996) 12 Cal.4th 631, 645, internal quotation marks omitted.)
Defendant contends the FAC fails to allege facts sufficient to support a cause of action for fraudulent concealment because it fails to allege facts with the requisite particularity. Defendant contends Plaintiff’s fraud claim is based on three main components, namely agent Lamb’s alleged representation that the subject policy would cover a loss that had not yet occurred and would not for six months, agent Lamb’s alleged concealment regarding coverage of the loss when Plaintiff reported it to agent Lamb, and Defendant’s alleged failure to tell Plaintiff the subject policy was cancelled. The Court agrees the FAC fails to allege facts sufficient to state a cause of action for fraudulent concealment against Defendant.
The FAC fails to allege facts which show how, where, and by what means the alleged representations were made. None of the allegations of the FAC indicate whether such representations were oral or written. (FAC, ¶ 63.) The FAC also fails to allege specific facts showing that Defendant had the intent to conceal or suppress with intent to defraud. It is not enough for Defendant merely to have failed to perform as promised. (See Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31.) While Plaintiff alleges Defendant did not intend to perform as promised, these allegations are conclusory and contain no factual support. (FAC, ¶ 63.) The FAC does not contain any allegations of facts showing that Defendant knew at the time the parties entered into the subject policy that Defendant did not intend to honor its obligations thereunder. (See Id.; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.)
Furthermore, the allegation regarding Plaintiff not receiving the notice of cancellation of the subject policy fails because Plaintiff alleges it occurred around December 15, 2021, which is well after the parties had already entered into the subject policy. (See Id.; FAC, ¶ 67.) This argument also suffers from the same problem noted above in that it is merely alleging a failure to perform as promised. It provides nothing to show that Defendant did not intend to perform as promised when the parties entered into the subject policy. (See Tarmann, 2 Cal.App.4th at p. 159.) Further, Plaintiff fails to allege facts showing he would have acted differently had he known of the cancellation, and that the concealment of the cancellation resulted in damage.
Based on the foregoing, the Court SUSTAINS the demurrer to the Third cause of action. Defendant requests that the demurrer be sustained without leave to amend. There is no opposition to this motion, so plaintiff has failed to explain how the complaint can be successfully amended to avoid the defects. Where a complaint is successfully challenged on demurrer, it is plaintiff's burden to demonstrate how the complaint might by amended to cure it of the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.) Where a plaintiff will be unable to correct the flaws in a pleading, leave to amend should be denied. (La Vista Cemetery Association v. American Savings & Loan Association (1970) 12 Cal.App.3d 365, 369.) The Court will sustain the demurrer to the Third cause of action without leave to amend, unless Plaintiff can demonstrate how the complaint can be amended to cure the defects.
CONCLUSION
The Court SUSTAINS the demurrer to the Third cause of action without leave to amend, unless Plaintiff can demonstrate how the complaint can be amended to cure the defects.
Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.
