Judge: Melvin D. Sandvig, Case: 22CHCV01442, Date: 2023-06-22 Tentative Ruling

Case Number: 22CHCV01442    Hearing Date: August 25, 2023    Dept: F47

Dept. F47

Date: 8/25/23

Case #22CHCV01442

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 5/8/23.

MOVING PARTY: Defendant Jesus Rodriguez

RESPONDING PARTY: Plaintiff Golden Pro Insurance Services Inc.

NOTICE: ok

Demurrer is to the entire complaint:

            1.  Breach of Contract

            2.  Fraud

            3.  Conversion

RULING: The demurrer is overruled.  Answer is due within 20 days. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an alleged written contract between Plaintiff Golden Pro Insurance Services Inc. (Plaintiff ) and Defendant Jesus Rodriguez (Defendant) whereby Defendant would be paid commissions on completed jobs.  (Complaint ¶6).  Plaintiff alleges that beginning in July 2021, Defendant began reporting that uncompleted jobs had been completed and as a result, Defendant was paid $12,024.42 in commissions by Plaintiff that Defendant did not earn.  (Id. ¶7).

As a result, on 12/20/22, Plaintiff filed this action against Defendant for: (1) Breach of Contract, (2) Fraud and (3) Conversion.  (The caption of the complaint also lists a 4^th cause of action for Intentional Interference With Economic Advantage and a 5^th cause of action for Injunctive Relief; however, those causes of action are not included in the body of the complaint.).  On 5/8/23, Defendant filed and served the instant demurrer to the entire complaint on the grounds that the complaint fails to allege sufficient facts to state a cause of action and/or is uncertain.  CCP 430.10(e), (f).  On 8/14/23, Plaintiff filed and served an opposition to the demurrer.  Defendant has not filed a reply to the opposition.   

ANALYSIS

To plead a claim for breach of contract, a plaintiff may allege the legal effect and substance of the contract’s legal terms.  Khoury (1993) 14 CA4th 612, 616.  Plaintiff has sufficiently met this requirement.  (See Complaint ¶¶6-9).  As such, contrary to Defendant’s assertion, the failure to attach the alleged written contract or plead its terms verbatim is not fatal to the breach of contract cause of action. 

The elements of fraud cause of action are: (1) the defendant made a representation, (2) the representation was false, (3) the defendant knew or should have known the representation was false, (4) the defendant made the false representation with the intent to deceive the plaintiff into acting to the plaintiff’s detriment, (5) the plaintiff relied on the misrepresentation and (6) the plaintiff suffered damages as a result.  Binning (1977) 74 CA3d 615; Cooper (1990) 219 CA3d 1252, 1262.  Additionally, a fraud claim must be pled with factual specificity.  Wilhelm (1986) 186 CA3d 1324, 1332.

The complaint alleges sufficient specific facts to satisfy the elements of  a fraud cause of action.  (See Complaint ¶¶6-8, 10-15).

The elements of a conversion cause of action are: (1) plaintiff’s ownership or right to possession of the personal property or an amount of money capable of being ascertained with certainty; (2) defendant’s intentional and substantial interference with that right; (3) plaintiff suffered damages and (4) defendant’s conduct was a substantial factor in causing those damages.  de Vries (1960) 53 C2d 643; Farmers Insurance Exchange (1997) 53 CA4th 445, 451.  The complaint sufficiently alleges facts to support a conversion claim against Plaintiff with regard to the alleged paid but unearned commissions in the amount of $12,024.42.  (See Complaint ¶¶6-9, 16-20).

CONCLUSION

The demurrer is overruled.  Answer is due within 20 days.