Judge: Melvin D. Sandvig, Case: 22CHCV00327, Date: 2022-10-17 Tentative Ruling

Case Number: 22CHCV00327    Hearing Date: October 17, 2022    Dept: F47

Dept. F47

Date: 10/17/22

Case #22CHCV00327

 

DEMURRER & MOTION TO STRIKE

TO THE FIRST AMENDED CROSS-COMPLAINT

 

Demurrer & Motion to Strike filed on 6/17/22.

 

MOVING PARTY: Cross-Defendants Braa Holdings, LLC; Areg Aghayants and Armik Aghayants

RESPONDING PARTY: Cross-Complainant William Vilches dba Prestige Builders

NOTICE: ok

 

Demurrer is to the entire First Amended Cross-Complaint:

            1.  Breach of Written Contract

            2.  Quantum Meruit

            3.  Foreclosure of Mechanic’s Lien

            4.  Breach of Civil Code 1719

            5.  Fraud

            6.  Negligent Misrepresentation

            7.  Open Book Account

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking various portions of the First Amended Cross-Complaint. 

 

RULING: The demurrer is sustained with 20 days leave to amend.  The motion to strike is placed off calendar as moot. 

 

This action arises out of an agreement allegedly entered between Cross-Complainant William Vilches dba Prestige Builders (Cross-Complainant) and Cross-Defendants Braa Holdings, LLC, Areg Aghayants and Armik Aghayants (Cross-Defendants) whereby Cross-Complainant was to construct a pool for Cross-Defendants.  Both Cross-Complainant and Cross-Defendants claim that the other breached the agreement.  As a result, on 5/12/22, Cross-Defendant Braa Holdings, LLC, as plaintiff, filed the underlying complaint against Cross-Complainant as defendant for: (1) Negligent Misrepresentation, (2) Fraudulent Concealment, (3) Breach of Contract, (4) Unfair Business Practices in Violation of Business & Professions Code 17200, et seq., (5) Breach of the Implied Covenant of Good Faith and Fair Dealing and (6) Intentional Infliction of Emotional Distress.  On 5/26/22, Defendant/Cross-Complainant filed his original Cross-Complaint, and, on 5/27/22, he filed his original Answer.  On 5/31/22, Defendant/Cross-Complainant filed an Amended Answer and, on 6/3/22, he filed a First Amended Cross-Complaint alleging causes of action for: (1) Breach of Written Contract, (2) Quantum Meruit, (3) Foreclosure of Mechanic’s Lien, (4) Breach of Civil Code 1719, (5) Fraud, (6) Negligent Misrepresentation and (7) Open Book Account.

 

 

After meet and confer efforts between counsel for the parties failed to resolve the issues Cross-Defendants had with the First Amended Cross-Complaint, on 6/17/22, Cross-Defendants filed and served the instant demurrer to the entire First Amended Cross-Complaint and motion to strike which seeks to strike various portions of the First Amended Cross-Complaint.  Cross-Complainant has opposed the demurrer and motion to strike. 

 

The Court notes that Cross-Defendants have improperly attached their motion to strike to the demurrer.  In the future, such documents must be separately filed. 

 

Cross-Defendants’ Request for Judicial Notice is denied.  Cross-Defendants fail to set forth any valid statutory basis for the request.  The request relies on Evidence Code 430, et seq.  (See RJN, p.2:2-3).  Evidence Code 430 does not exist.  Presumably, Cross-Defendants intended to rely on Evidence Code 450, et seq.  However, Cross-Defendants have failed to set forth the grounds under Evidence Code 451 and/or 452 on which judicial notice of the subject documents is requested.  Additionally, Cross-Defendants failed to bookmark the exhibits attached to the Request for Judicial Notice as is required.  See CRC 3.1110(f)(4)

 

The 1st cause of action for Breach of Written Contract is subject to demurrer because it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct.  See CCP 430.10(g).  In the First Amended Complaint, the 1st cause of action is titled as Breach of Written Contract.  (See FAXC p.1:12, p.3:17).  However, within the cause of action, Cross-Complainant alleges that the parties entered an “oral agreement.”  (FAXC ¶10).  Cross-Complainant reiterates the claim that the contract was oral in the opposition to the demurrer.  (See Opposition, p.4:22-23).  However, Cross-Complainant goes on to allege in the First Amended Cross-Complaint that he “provided an estimate [for] $68,050.00 for construction of the Pool based on the plans provided by Cross-Defendants before Cross-Complainant began work.”  (FAXC ¶11).  It is not clear if the estimate and plans were written and/or whether they were incorporated as part of the agreement.      

 

Cross-Defendants seem to conflate an argument regarding lack of legal capacity to sue with an argument regarding misjoinder of parties.  See  CCP 430.10(b), (d).  The authority cited by Cross-Defendants relates to a plaintiff’s standing to sue.  (See Demurrer, p.10:20-p.11:4).  However, the argument seems to be based on the claim that Areg Aghayants and Armik Aghayants are not proper cross-defendants because they are not parties to the alleged contract.  (See Demurrer, p.11:5-9). 

 

In addition to not being able to ascertain from the pleading whether the underlying contract is oral, written or implied, it cannot be ascertained who Cross-Complainant alleges are the parties to the contract.  Cross-Complainant alleges that he entered an oral contract with “Cross-Defendants.”  (FAXC ¶10).  However, it is not clear if both of the individual Cross-Defendants were present during the making of this oral contract, who on behalf of the entity Cross-Defendant entered the contract, etc.  (See FAXC ¶¶10-11). 

 

The foregoing allegations are incorporated into the remaining causes of action.  (FAXC ¶¶18, 21, 28, 35, 44, 47).  As such, it cannot be ascertained whether all of the Cross-Defendants are properly joined as defendants in any of the causes of action in the First Amended Cross-Complaint.  CCP 430.10(d).    

 

Additionally, the 5th cause of action for Fraud and the 6th cause of action for Negligent Misrepresentation fail to allege sufficient facts to constitute a cause of action.  CCP 430.10(e).    Fraud based causes of action must be pled specifically with facts showing how, when, where, to whom and by what means the representations were tendered.  Lazar (1996) 12 C4th 631, 645.  Additionally, when fraud-based claims are pled against an entity defendant, the plaintiff must allege the names of the person who allegedly made the misrepresentations, their authority to speak, to whom they spoke, what they said or wrote and when it was said or written.  Id. citing Tarmann (1991) 2 CA4th 153, 157.  Cross-Complainant has failed to plead these causes of action with the requisite factual specificity.  For example, it is not clear if one or both of the individual made the alleged misrepresentations, who on behalf of the entity defendant made misrepresentations, how the were made, where, etc. 

 

The remaining bases/arguments for the demurrer are overruled.  

 

Technically, the motion to strike is moot due to the sustaining of the demurrer to the entire First Amended Cross-Complaint.  However, the Court notes that Cross-Defendants have failed to establish that any of the portions of the First Amended Cross-Complaint sought to be stricken are irrelevant, false, improper and/or not drawn in conformity with the law, local rules or court order as claimed in the motion.