Judge: Martha K. Gooding, Case: 2020-01168473, Date: 2022-10-31 Tentative Ruling

1) Demurrer to Amended Complaint


2) Motion to Strike Portions of Complaint




Before the Court is a demurrer by Defendant LAVA BVBA to the fifth cause of action for fraud in the First Amended Complaint (“FAC”) filed by Plaintiffs Instant Tuck USA, LLC and Instant Tuck, Inc. (collectively, “Plaintiffs”) and a Motion to Strike the punitive damages allegation in the FAC filed by the same Defendant.


The Court sustains the Demurrer with 10 days leave to amend; the Motion to Strike is therefore moot.


Legal Standard


“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [combining misrepresentation and scienter as a single element]; CACI 1900.)


Every element of fraud must be pleaded with specificity.  The plaintiff must plead facts that show how, when, where, to whom, and by what means the false representations were made; when the defendant is a corporation, the plaintiff must also allege the names of the persons who made the representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Kalnoki v First Am. Trustee Servicing Solutions, LLC, supra, 8 CA5th at 35; Wald v TruSpeed Motorcars, LLC (2010) 184 CA4th 378, 393–394.)




In the fifth cause of action, Plaintiffs allege:


“In or around November and December 2019 Lava BVBA and Lava USA represented to Plaintiffs that a yarn heavier than 160 grams would be used in production, and in particular, a yarn with a weight of 180 grams/meter would be used in production…

When in fact, that representation was false, and the heavier yarn with a weight of 180 grams/meter Plaintiffs requested was not used. Yarn with a weight of 160 grams/meter was intentionally used instead in an effort to defraud Plaintiffs.”


(FAC, ¶¶41, 42.)


This does not meet the specificity requirements.  It does not identify who made the alleged misrepresentations, to whom each misrepresentation was made, when each misrepresentation was made, whether each alleged misrepresentation was oral or written and, if the latter, what document contains each claimed misrepresentation.  Paragraph 14, included in the “background” portion of the FAC, does not supply the necessary specificity.


The Demurrer to the fifth cause of action is therefore sustained.



Motion to Strike


Based on the Court’s ruling, above, on the demurrer, the motion to strike is moot.


Plaintiff is ordered to give notice.