Judge: Mark E. Windham, Case: 22STLC05127, Date: 2023-03-16 Tentative Ruling
Case Number: 22STLC05127 Hearing Date: March 16, 2023 Dept: 26
DEMURRER;
MOTION TO STRIKE
(CCP §§ 430.31,
et seq., 435, et seq.)
TENTATIVE RULING:
Cross-Defendant
Final Touch Construction & Design’s Demurrer to the Cross-Complaint is
OVERRULED AS TO THE SECOND CAUSE OF ACTION FOR NEGLIGENCE AND SUSTAINED WITHOUT
LEAVE TO AMEND AS TO THE THIRD CAUSE OF ACTION FOR FRAUD.
Cross-Defendant
Final Touch Construction & Design’s Motion to Strike Portions of the
Cross-Complaint is PLACED OFF CALENDAR AS MOOT.
ANALYSIS:
Plaintiff Final
Touch Construction & Design (“Cross-Defendant”) filed the instant action for
breach of contract and quantum meruit against Defendant Celine Esquivel (“Cross-Complainant”)
on August 4, 2022. Cross-Complainant filed a cross-complaint for breach of
contract, negligence, and fraud against Cross-Defendant, on December 16, 2022.
Cross-Defendant
filed the instant Demurrer to, and Motion to Strike Portions of, the Cross-Complaint
on February 1, 2023. Cross-Complainant filed oppositions on March 3, 2023 and
Cross-Defendant replied on March 9, 2023.
Discussion
Allegations in the Cross-Complaint
The Cross-Complaint alleges that in June 2021 Cross-Complainant resided at 218
Danecroft Avenue, San Dimas, California (“the Property”) and entered into an
agreement whereby Cross-Defendant agreed to provide contractor services for
replacement of windows and installation of an exterior French door at the
Property. (Cross-Compl., ¶¶2-3 and Exh. A.) Cross-Complainant agreed to pay
$5,328.00 for the work. (Id. at ¶3 and A.) A change order was issued for
Cross-Defendant to provide the French door, increasing the contract price to
$6,208.00. (Id. at ¶4 and Exh. B.) The work performed by Cross-Defendant
was not completed in a good and workmanlike manner and fell below industry
standards. (Id. at ¶5.) Specifically, the French door was an interior
door and not suitable for installation as an exterior door; the installation
damaged the carpet; the installation of the windows and French door did not
comply with the requirements of Title 24 of the California Electrical Code,
meaning none of the windows and French doors were to code; the windows were not
installed to industry standards; and some areas of installation were left
damages and/or unfinished. (Id. at ¶¶5-6.) To repair the improper
installation, Cross-Complainant hired American Window Company and was quoted a
price of $17,100.00. (Id. at ¶7 and Exh. C.) Cross-Complainant suffered
damages in excess of $20,000.00, subject to proof at trial. (Id. at ¶8.)
Demurrer to Complaint
The Demurrer is accompanied by a meet and confer declaration as required
by Code of Civil Procedure section 430.41. (Demurrer, Dang Decl., ¶¶6-7 and
Exh. B.) Cross-Defendant demurs to the second and third causes of action,
negligence and fraud, respectively, for failure to allege sufficient facts
under Code of Civil Procedure section 430.10, subdivision (e).
1. Second Cause of Action for Negligence
The elements of a
cause of action for negligence are duty, breach, causation and damages. (County
of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292,
318.) Cross-Defendant argues that the Cross-Complaint fails to allege a duty
separate from those required by the parties’ contract such that there is no
separate tort duty, nor breach of a tort duty, to support the negligence cause
of action. “[C]onduct amounting to a breach of contract becomes tortious only
when it also violates a duty independent of the contract arising from
principles of tort law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) In
opposition, Cross-Complaint points to the allegation that Cross-Defendant was
obligated to comply with Title 24 of the California Electrical Code yet failed
to do so. The Demurrer offers no analysis regarding Cross-Defendant’s
obligation to comply with Title 24 and whether that was a duty separate from the
terms of the parties’ agreement. In fact, on reply, Cross-Complainant drops the
argument regarding the negligence cause of action entirely. (Reply, pp.
2:5-3:23.)
Therefore, the Demurrer to the first cause of action for
negligence is overruled.
2. Third Cause of Action for Fraud
Cross-Defendant also demurs to the third cause of action for fraud as
simply reiterating the breach of contract claim. The elements of fraud are (1) misrepresentation;
(2) knowledge of falsity (or "scienter"); (3) intent to defraud
(induce reliance); (4) justifiable reliance; and (5) resulting damage. (Conroy
v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) It is also
black letter law that fraud must be alleged with specificity, meaning that the pleadings
must allege facts as to “‘how, when, where, to whom, and by what means the
representations were tendered.” Stansfield
v. Starkey (1990) 220 Cal. App. 3d 59, 73. Here, the Cross-Complaint
alleges that Cross-Defendant “represented itself as a highly experienced and
competent construction contractor which would perform the work up to code and
industry standards.” (Cross-Compl., ¶13.) However, there are no allegations as
to who made the statements, where and when the statements were made, nor in
what manner. (Id. at ¶¶13-15.)
Also, to allege contractual fraud, it is insufficient to show an
unkept but honest promise, or mere subsequent failure of performance under a
contract to allege contractual fraud. (Tenzer v. Superscope, Inc. (1985)
39 Cal.3d 18, 29.) “‘[S]omething more than nonperformance is required to prove
the defendant’s intent not to perform his promise.’” (Ibid.) For
example, the defendant’s intent not to perform may be shown by circumstantial
evidence, such as a pattern of making representations that were never
performed. (See id. at 30-31.) Here, no allegations suggest
Cross-Defendant’s did not intend to perform when the contract was formed.
The Demurrer to the third cause
of action for fraud, therefore, is sustained.
Motion to Strike Portions of Cross-Complaint
Cross-Defendant demurs to the allegations in support of, and
the request for, punitive damages. The allegations in relation to the request
for punitive damages are only set forth with the third cause of action for
fraud. The Court having sustained Cross-Defendant’s Demurrer to the third cause
of action, the Motion to Strike is moot.
Leave to Amend
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment, however, the
burden is on the complainant to show the Court that a pleading can be amended
successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Cross-Complainant’s
opposition does not address what additional facts can be included to support
the fraud cause of action, and derivatively, the request for punitive damages.
(See Opps., filed 03/03/23.) Therefore, leave to amend is denied.
Conclusion
Cross-Defendant
Final Touch Construction & Design’s Demurrer to the Cross-Complaint is OVERRULED
AS TO THE SECOND CAUSE OF ACTION FOR NEGLIGENCE AND SUSTAINED WITHOUT LEAVE TO
AMEND AS TO THE THIRD CAUSE OF ACTION FOR FRAUD.
Cross-Defendant
Final Touch Construction & Design’s Motion to Strike Portions of the
Cross-Complaint is PLACED OFF CALENDAR AS MOOT.
Moving party to give notice.