Judge: Maurice A. Leiter, Case: 23STCV00624, Date: 2023-12-01 Tentative Ruling

Case Number: 23STCV00624    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 Aleksandr Gruzman

T/R:      DEFENDANTS’ DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

DEFENDANTS TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

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 July 6, 2023, Aleksandr Gruzman 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) fraud by concealment; (2) promissory fraud; (3) negligent misrepresentation; (4) unfair competition; (5) declaratory and injunctive relief; (6) professional negligence; and (7) indemnity. Plaintiff alleges Defendants, who advertise as audiovisual experts, misrepresented their ability to enhance audio and visual recordings.

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 plead with the requisite specificity.

Plaintiff alleges Defendants, who advertise as audiovisual experts, misrepresented their ability to enhance audio and visual recordings. Plaintiff alleges Defendants were retained to enhance the recordings, charging $9,090.00 for their services, but those services were not competent or timely. Plaintiff alleges the results of Defendants’ work was grainy and blurry and a magnifying glass was better at enhancing the video than Defendants. Defendants also could not answer the question of what tools were used to enhance the video. Plaintiff alleges he was sued in small claims by Defendants because of their misrepresentations. This is sufficient to allege causes of action for fraud.

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

B. UCL Violations and Declaratory Relief

Plaintiff’s causes of action for UCL violations and declaratory relief are derivative of Plaintiff’s fraud claims. As stated, Plaintiff has sufficiently alleged fraud.

The demurrer to the fourth and fifth causes of action is OVERRULED.

C. 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 sixth cause of action is OVERRULED.

D. Motion to Strike

Defendants move to strike the prayers for punitive damages and attorney’s fees. As Plaintiff has stated causes of action for fraud, Plaintiff has alleged entitlement to punitive damages. 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.