Judge: Maurice A. Leiter, Case: 23STCV00608, Date: 2023-05-11 Tentative Ruling

Case Number: 23STCV00608    Hearing Date: December 1, 2023    Dept: 54

Hearing Date: December 1, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendants David Notowitz; Michael Masarof; Matthew Gabler; National Center for Audio and Video Forensics, Inc.

Responding Party: Plaintiff Roy Penuela

T/R:      DEFENDANTS’ DEMURRER IS TO THE FIRST THROUGH THIRD, SIXTH AND SEVENTH CAUSES OF ACTION IS SUSTAINED WITH LEAVE TO AMEND. THE DEMURRER TO THE FOURTH CAUSE OF ACTION IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANTS TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

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 August 28, 2023, Roy Penuela filed the operative first amended complaint against Defendants David Notowitz; Michael Masarof; Matthew Gabler; National Center for Audio and Video Forensics, Inc., asserting causes for (1) promissory fraud; (2) fraud and deceit; (3) negligent misrepresentation; (4) professional negligence; (5) indemnity; (6) unfair competition; and (7) declaratory and injunctive relief. Plaintiff alleges Defendants, who advertise as audiovisual experts, misrepresented their ability to enhance audio and visual recordings to induce Plaintiff to disclose confidential information to Defendants.

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.)

A. 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.)

Defendants assert Plaintiff’s causes of action for fraud fail on the ground that they are not pleaded with the requisite specificity. Plaintiff alleges Defendants, who advertise as audiovisual experts, misrepresented their ability to enhance audio and visual recordings to induce Plaintiff to disclose confidential information to Defendants. Plaintiff alleges this occurred during a phone call on August 21, 2022. Plaintiff alleges Defendants represented they “would truthfully inform the plaintiff of ‘what is possible—and what is not possible’ and do an ‘assessment of the evidence and determine what we can and can’t do to enhance and give you the results you need’ of video and audio recordings submitted to the defendants for their enhancement.” Finally, Plaintiff complains that Defendant misrepresented the results of the assessment, which showed the video could not be adequately enhanced for Plaintiff’s "legal matters.”

Plaintiff has failed to allege fraud. The statements cited by Plaintiff in the complaint show Defendants represented that they would assess the recordings to determine if they could be enhanced. Though the FAC alleges Defendants also misrepresented their ability to enhance the recordings, there are no statements showing Defendants promised they would enhance the recordings. Additionally, Plaintiff’s damages are unclear, stating “the plaintiff became potentially liable for payment for the defendants’ claimed enhancement.”

Defendants’ demurrer to the first through third causes of action is SUSTAINED.

B. Professional Negligence

Defendants demur to the cause of action for professional negligence on the ground that it is duplicative of the other claims and because Defendants did not owe Plaintiff an “increased duty of care.” These are not grounds for demurrer. Plaintiff may allege alternative theories of liability and Defendants’ conclusion that they did not owe Plaintiff a duty of care does not defeat the cause of action.

The demurrer to the fourth cause of action is OVERRULED.

C. UCL Violations and Declaratory Relief

Plaintiff’s causes of action for UCL violations and declaratory relief are derivative of Plaintiff’s fraud claims. As discussed, Plaintiff has failed to allege fraud.

The demurrer is SUSTAINED.

D. Motion to Strike

Defendants move to strike Plaintiff’s prayers for punitive damages and attorney’s fees. As the Court sustained the demurrer to the fraud claims, the motion to strike punitive damages is moot. The Court declines to strike the prayer for attorney fees as a basis for them may appear later in the action.

The motion to strike is DENIED.