Judge: Mark A. Young, Case: 21SMCV01001, Date: 2023-02-08 Tentative Ruling
Case Number: 21SMCV01001 Hearing Date: February 8, 2023 Dept: M
CASE NO.: 21SMCV01001
MOTION: Motion
for Judgment on the Pleadings
HEARING DATE: 2/8/2023
Legal
Standard
A
defendant’s motion for judgment on the pleadings may be made after the time to
demur has expired and an answer has been filed. (CCP § 438(f).) A motion by a
defendant may be made on the grounds that (1) the court “lacks jurisdiction of
the subject of one or more of the causes of action alleged” or (2) the
complaint or cross-complaint “does not state facts sufficient to constitute a
cause of action against that defendant.” (CCP § 438(c).)
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. Except as provided by statute,
the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999.) “A motion for judgment on the pleadings is
akin to a general demurrer; it tests the sufficiency of the complaint to state
a cause of action. The court must assume the truth of all factual allegations
in the complaint, along with matters subject to judicial notice.” (Wise v.
Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738, citations
omitted.) Further, like a general demurrer, a motion for judgment on the
pleadings “does not lie as to a portion of a cause of action, and if any part
of a cause of action is properly pleaded, the [motion] will be overruled.” (Fire
Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)
MEET AND CONFER
Before filing a statutory motion for judgment
on the pleadings, a moving party's counsel must meet and confer, in person or
by telephone, with counsel for the party who filed the pleading subject to the
judgment on the pleadings motion “for the purpose of determining if an
agreement can be reached that resolves the claims to be raised in the motion for
judgment on the pleadings.” (CCP § 439(a).) Defendant submits a sufficient meet
and confer declaration.
Analysis
Defendant moves for judgment on the
pleadings as to the fraud-based causes of action – the third cause of action for
fraud, and the fifth cause of action for negligent misrepresentation. To
establish a fraud cause of action, a plaintiff must allege (1)
misrepresentation, (2) knowledge of falsity, (3) intent to defraud or to induce
reliance, (4) justifiable reliance, and (5) resulting damage. (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Fraud,
including negligent misrepresentation, must be pled with specificity. (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity
demands that a plaintiff plead facts which show how, when, where, to whom, and
by what means the representations were tendered.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469.) Negligent misrepresentation
requires the same elements as fraud, except that the defendant need only make false
statements believing them to be true, without reasonable ground for such
belief. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,
407.)
Defendant argues that these causes of
action merely restate the first cause of action for breach of contract and attempt
to convert a contract claim into a tort claim. Defendant further asserts that
the fraud claims do not meet the specificity standard required for pleading
fraud.
The Court concurs that Plaintiff
does not plead the fraud claims with the requisite specificity. In the first
amended complaint (FAC), Plaintiff adds allegations regarding Borison’s
relationship with Gutsue and the specific items that she entrusted to Gutsue. (See
FAC ¶ 41.) Plaintiff, however, does not allege the specific misrepresentations,
or the how-when-where of the misrepresentations. The FAC alleges that prior to
entering the power of attorney (POA) agreement, Gutsue “represented to
Plaintiff that he will take care and preserve of all her personal property,”
that Gutsue “was to” transport Plaintiff’s dog to a new home that Plaintiff
arranged, and that Gutuse “communicated” that he would perform. (FAC ¶ 43.) At
best, Borison alleges that she handed Gutsue a “typed list of things
which both [parties] previously discussed in July about [the POA] agreement,
containing a list of things which [Defendant] was to do pursuant to the
agreement[.]” (See FAC ¶ 46(1)-(9).) These allegations do not state any
specific misrepresentations by Defendant. Each only generally states
that Gustue “represented” the above, that Gutsue “was to” do certain things,
and that the parties “previously discussed” the issues in July 2015.
Defendant also observes that,
according to Exhibit A, he did not enter into the POA on July 9, 2015, as
alleged. (FAC, ¶¶ 43-44.) The POA shows that Gutsue supposedly signed it on
September 4, 2015—after Plaintiff had been incarcerated. (Ex. A.) Gutsue
reasons that he couldn’t have made any misrepresentations to Plaintiff when she
was already in prison. Be that as it may, it would not be impossible for
Plaintiff to allege misrepresentations prior to entering the POA. This would
not depend on whether Plaintiff was incarcerated.
Accordingly, Defendant’s motion is
GRANTED with 10 days leave to amend.
The Court notes that strictly
speaking, a demurrer is the more appropriate vehicle for a challenge to the
pleadings prior to filing an answer. While there is no functional difference
between a demurrer and MJOP, Defendant should keep this in mind for future
challenges to the pleadings.