Judge: Mark E. Windham, Case: 24STLC03607, Date: 2024-07-31 Tentative Ruling

Case Number: 24STLC03607    Hearing Date: July 31, 2024    Dept: 26

Wimberley v. Green, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant David Green’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

ANALYSIS:

On May 17, 2024, Plaintiff Fred Martin Wimberley (“Plaintiff”), in propria persona, filed the Complaint in this action against Defendant David Green (“Defendant”). On June 28, 2024, Defendant filed the instant Demurrer to the Complaint. No opposition to the Demurrer has been filed to date. Defendant filed a reply/notice of non-opposition on July 24, 2024.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Engst Decl., ¶2.) Defendant demurs on the grounds that the Complaint fails to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) The Complaint alleges causes of action for (1) conflict of interest; (2) double dipping; and (3) fraud. These claims are based on the allegation that Defendant, as president of SEIU Local 721, is union president for both county workers and city workers. (Compl., pp. 1-3.) Plaintiff alleges that by acting as union president for both county workers and city employees, Defendant is paid twice, and this amounts to fraud. (Ibid.)

As the Demurrer points out, the Complaint does not identify any cause of action called “conflict of interest” or “double dipping.” Nor is there any such known cause of action in California. A fraud cause of action must allege (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage. (Conroy v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) The Complaint does not allege any statement made by Defendant, let alone a statement made with knowledge of its falsity. (Compl., pp. 1-4.)

The Complaint also appears to indicate fraud by concealment, which must allege Defendant concealed or suppressed a material fact they were under a duty to disclose. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) Even if the Complaint could be read to allege that Defendant concealed that they were union president for county employees and city workers at the same time, there are no allegations of a duty to disclose this fact, that Plaintiff was unaware of this fact, or that Plaintiff would have acted differently if they were aware of this fact. (See ibid.) The Complaint, therefore, does not allege facts sufficient to state a cause of action for fraud and the Demurrer is sustained.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment and 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.) As Plaintiff has not filed any opposition to the Demurrer, leave to amend is denied.

Conclusion

Defendant David Green’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.