Judge: Maurice A. Leiter, Case: 22STCV08701, Date: 2023-01-05 Tentative Ruling

Case Number: 22STCV08701    Hearing Date: January 5, 2023    Dept: 54

Hearing Date: January 5, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Cross-Complaint and Motion to Strike

Moving Party: Cross-Defendants Moonlight Construction, Inc., Ben Nino Hunter and Moran Elkarif

Responding Party: Cross-Complainant Rufus G. Thayer, III, individually and as Trustee of the Rufus G. Thayer, III, Living Trust, Dated March 5, 2010

T/R:     CROSS-DEFENDANTS’ DEMURRER IS SUSTAINED WITH LEAVE TO AMEND. THE MOTION TO STRIKE IS MOOT.

CROSS-COMPLAINANT TO FILE AND SERVE A FIRST AMENDED CROSS-COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. CROSS-DEFENDANTS TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

CROSS-DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On March 10, 2022, Plaintiff Moonlight Construction Inc. sued Defendant Rufus G. Thayer, III, individually and as Trustee of the Rufus G. Thayer, III, Living Trust, Dated March 5, 2010, asserting causes of action for (1) breach of contract; (2) common counts – services rendered; (3) quantum meruit; and (4) foreclosure of mechanic’s lien. Moonlight alleges Thayer failed to pay Moonlight for construction and remodeling services for real property.

On May 26, 2022, Thayer filed a cross-complaint against Moonlight, Ben Nino Hunter and Moran Elkarif, asserting causes of action for (1) negligence; (2) fraud; (3) breach of contract; (4) restitution; and (5) accounting. Thayer alleges Moonlight’s work was substandard and Moonlight billed Thayer for work that was never done.

REQUEST FOR JUDICIAL NOTICE

            Cross-Defendants’ request for judicial notice is GRANTED under Evid. Code § 452.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Cross-Defendants demur to the second cause of action for fraud.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, 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.) 

Cross-Defendants assert that Cross-Complainant has failed to state a cause of action for fraud with the requisite specificity. Cross-Complainant alleges Cross-Defendants made false representations in their invoices, charging Cross-Complainant for costs for materials and labor that were not actually incurred. Cross-Complaint cites to the invoices as evidence of Cross-Defendants’ misrepresentations. Plaintiff must plead specific facts showing a misrepresentation, for example, that Cross-Defendants charged Cross-Complainant for a specific service that was not performed. Broad allegations that Cross-Complainants were charged for work that was not performed are insufficient to support a fraud claim.

Cross-Defendants’ demurrer is SUSTAINED with leave to amend. The motion to strike is MOOT.