Judge Mark C. Kim, Case 21LBCV00257 2023-03-21 Tentative Ruling

Judge: Mark C. Kim, Case: 21LBCV00257, Date: 2023-03-21 Tentative Ruling

Case Number: 21LBCV00257 Hearing Date: March 21, 2023 Dept: S27

1. Background Facts

Plaintiff, Juan Carlos Sanchez filed this action against Defendants, Lucy E. Ramirez, Luz Elena Ramirez and Vision One Mortgage, Inc. on 5/06/21. The Court sustained demurrers to the original complaint on the ground that they were uncertain and numerous pages were missing from the complaint. Plaintiff filed his First Amended Complaint on 12/14/21. The Court sustained a demurrer to the FAC on the ground that it was uncertain on 5/24/22. Plaintiff filed his operative SAC on 6/13/22. The SAC includes causes of action for quiet title, partition of real property, breach of contract, and fraud.

2. Demurrer to Second Amended Complaint

a. History of Dispute

The Court was originally scheduled to hear this demurrer on 12/20/22. Prior to the hearing, the Court issued a tentative ruling finding the parties had not adequately met and conferred in connection with the demurrer, providing guidance, and continuing the hearing on the demurrer. The Court adopted its tentative ruling as its final ruling. The parties failed to file timely briefs in connection with the continued hearing date, but appeared and sought a further continuance of the hearing on the demurrer.

b. Meet and Confer Declaration

Plaintiff submitted a meet and confer declaration one week prior to the continued (current) hearing date. Plaintiff’s attorney declares all issues have been resolved with the exception of the issue of whether fraud has been adequately pled. In connection with the original hearing, the Court provided the following guidance on this issue:

Second, Plaintiff contends his misrepresentation allegations, found at ¶56 of his SAC, are sufficiently pled. ¶56 alleges, “Plaintiff alleges that he and Defendant Luz Elena Ramirez made an agreement that he would be a 50% owner of the property located at 1094 Lime Ave., Long Beach, CA 90813 beginning in 2004.” Plaintiff argues Defendant knows all of the specific information about this agreement, so he need not plead it. He also argues the information was given to him during Defendant’s deposition. The parties must meet and confer concerning what information is in Plaintiff’s possession regarding where, when, and how that agreement was made.

It does not appear Defendant is arguing the other elements of fraud (beyond the misrepresentation itself) have not been pled with specificity. If she is, her demurrer is not clear in this regard. If she so contends, the parties must discuss those allegations as well.

The Court has reviewed the SAC and finds ¶56 is not sufficiently specific to support a claim for fraud. The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Civil Code §1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.)

Since allegations of fraud involve a serious attack on character, fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Accordingly the rule is everywhere followed that fraud must be specifically pleaded, such that: (a) General pleading of the legal conclusion of “fraud” is insufficient; the facts constituting the fraud must be alleged; and (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Id.)

“Consistent with the rule requiring specificity in pleading fraud, a complaint must state ultimate facts showing that the defendant intended or had reason to expect reliance by the plaintiff or the class of persons of which he is a member.” (Geernaert v. Mitchell (1995) 31 Cal. App. 4th 601, 608.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Plaintiff, in opposition to the demurrer, relied on Committee, supra at 217, to support his position that less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of controversy. The ruling in Committee was that, where the defendant entity had information that the plaintiff could not possibly obtain except through discovery, the plaintiff was permitted to plead fraud with less specificity. That rules does not apply in a case like this one, where the only two people who would have been involved in the conversations at issue were the plaintiff and the defendant. The defendant does not necessarily have information the plaintiff lacks; on the contrary, the plaintiff has all of the information the defendant has, as the two were both involved in all communications relating to the subject fraud.

The demurrer is therefore sustained. Because Plaintiff has amended twice previously, because trial is scheduled to go forward in less than a month, and because Plaintiff has not stated how he would amend if given leave to do so, leave to amend is denied. Defendant is ordered to file an answer to the SAC, with the cause of action for fraud deemed stricken, within five days.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.