Judge: Marcella O. Mclaughlin, Case: 37-2023-00036244-CU-FR-CTL, Date: 2023-11-30 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 29, 2023

11/30/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Fraud Demurrer / Motion to Strike 37-2023-00036244-CU-FR-CTL DOCTOR'S SIGNATURE SALES AND MARKETING INTERNATIONAL CORP VS TORRES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/19/2023

The demurrer to the complaint by defendants Monica Arvizu and Joel Torres is SUSTAINED with leave to amend.

A. The demurrer to count 1 is sustained with leave to amend.

'The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).' Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517 fn. 14.

Here, insufficient facts have been pled showing the existence of a fiduciary or confidential relationship between plaintiffs and the moving defendants. In the absence of such facts, defendants cannot be held liable for conspiracy to commit constructive fraud. See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 ('By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.'); see also Everest Investors 8 v. Whitehall Real Estate Limited Partnership XI (2002) 100 Cal.App.4th 1102, 1108 ('[O]nly a fiduciary can be liable for constructive fraud[.]').

B. The demurrer to count 3 is sustained with leave to amend. '[T]here is no cause of action in California for unjust enrichment.' Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793. Plaintiffs may amend their prayer to add a request for restitution against the moving defendants, to the extent permitted by law, in connection with another validly pled cause of action.

C. Having resolved the demurrer on the foregoing grounds, the court declines to address defendants' additional arguments. Plaintiffs are granted leave to amend counts 1 and 3 against defendants Monica Arvizu and Joel Torres as set forth above. See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ('Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.'). Plaintiffs must file and serve the first amended complaint by December 11, 2023.

D. Judicial notice is taken as requested. Evid. Code § 452(c).

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