Judge: Melvin D. Sandvig, Case: 24CHCV00482, Date: 2024-09-09 Tentative Ruling

Case Number: 24CHCV00482    Hearing Date: September 9, 2024    Dept: F47

Dept. F47

Date: 9/9/24

Case #24CHCV00482

 

DEMURRER TO THE FIRST AMENDED COMPLAINT

 

Demurrer filed on 8/7/24.

 

MOVING PARTY: Defendants Armen Bahadourian; Park Place Cali Electro-Motors and Dan Hoogenraad

RESPONDING PARTY: Plaintiffs Feliks Zibelberg and City Wide Printing, Inc.

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Contract

            2.  Intentional Misrepresentation/Fraud

            3.  Negligent Misrepresentation

 

RULING: The demurrer is sustained with 30 days leave to amend. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of an agreement to purchase two golf carts.  Plaintiff alleges that on or about 12/16/22, Defendant Armen Bahadourian (Bahadourian), who is alleged to be the owner and operator of Defendant Park Place Cali-Electro Motors (Park Place), offered to sell two golf carts to Plaintiffs Feliks Zibelberg and City Wide Printing, Inc. (collectively, Plaintiffs; Plaintiff, singular, refers to Zibelberg) for a total price of $72,700.00.  (FAC ¶¶3-4, 12).  Plaintiffs allege that during the negotiations it was discussed that the golf carts would be delivered within 10-14 weeks and Bahadourian represented that he and Defendant Dan Hoogenraad (Hoogenraad) “had spoken and agreed and would assemble and deliver the carts to Plaintiff.”  (FAC ¶12).  The First Amended Complaint alleges that Plaintiff Zibelberg accepted “Defendant’s,” singular, offer to sell the golf carts in writing.  (FAC ¶13).

 

Plaintiff alleges that on 1/3/23, Bahadourian provided Plaintiff with two separate “Price Sheets,” that Plaintiff alleges had been provided to Bahadourian by Hoogenraad and his business which Plaintiff signed and returned.  (FAC ¶14, Ex.1, 2).  The “Price Sheets” make no reference to Hoogenraad or his alleged business.  (See FAC ¶¶5-6, Ex.1-2).  Plaintiff alleges that the “Price Sheets” represent the agreement/written contract between the parties.  (FAC ¶¶14, 32).   Thereafter, on 1/9/23, “Plaintiff paid the one half required deposits to Park Place.”  (FAC ¶15, Ex.3, 4).    

 

Plaintiff alleges that Defendants, plural, failed to deliver the carts by March 2023 as agreed.  (FAC ¶16).  When the carts were still not delivered as of 1/5/24, Plaintiff alleges that Hoogenraad communicated with Plaintiff stating that the carts were in the process of being built, but he did not have a specific delivery date and the deposits were considered earnest money and non-refundable.  (FAC ¶19).  Plaintiffs allege that Bahadourian and Hoogenraad offered a $5,000.00 discount on each cart with a prospective February 2024 delivery date which Plaintiff rejected.  (FAC ¶20).

 

Thereafter, on 2/15/24, Plaintiff filed this action against Bahadourian, Park Place, Hoogenraad and So Cal Custom Dan for: (1) Breach of Contract, (2) Intentional Misrepresentation/Fraud and (3) Negligent Misrepresentation.  On 4/2/24, Bahadourian and Park Place filed an answer to the complaint.  On 4/29/24, Hoogenraad filed a demurrer to the complaint which was scheduled for hearing on 6/25/24.  On 6/10/24, Plaintiffs filed the subject First Amended Complaint alleging the same 3 causes of action.

 

After meet and confer efforts failed to resolve the issues Bahadourian, Park Place and Hoogenraad had with the  First Amended Complaint, on 8/7/24, these three defendants filed and served the instant demurrer to the entire First Amended Complaint.  Despite the fact that Bahadourian and Park Place answered the original complaint, they can demur to the First Amended Complaint.  See Hawthorne (1891) 88 Cal. 159; Bristol Convalescent Hospital (1968) 258 CA2d 848; Ogier (1955) 132 CA2d 496; Cohen (1966) 244 CA2d 650; CCP 586(a)(1).  Plaintiff has opposed the demurrer.  No reply to the opposition has been filed. 

 

ANALYSIS

 

Meet-and-Confer

 

Contrary to the assertion in the opposition, the demurrer is accompanied by the declaration of attorney Adam Apollo who states: “I was able to meet with Plaintiff’s counsel by phone in real time, and he indicated neither dismissal nor amendment would be forthcoming to address my issues, thus necessitating this demur [sic].”  (See Opposition, p.3:11-p.4:3; Apollo Decl. ¶3 attached to the Demurrer at p.10; CCP 430.41(a)(3)).

 

1st cause of action – Breach of Contract

 

In order to state a claim for breach of contract, a plaintiff must allege: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach and (4) resulting damage to plaintiff.  See Richman (2014) 224 CA4th 1182, 1186.  If facts appearing in exhibits to the complaint contradict those alleged, the facts in the exhibits take precedence.  Holland (2001) 86 CA4th 1443, 1446.  Additionally, a demurrer admits the truth of all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  See Serrano (1971) 5 C3d 584, 591; Division (EAT), LLC (2022) 86 CA5th 439, 452; Travelers Indemnity Co. of Connecticut (2021) 70 CA5th 341, 358-359.

 

Plaintiffs have failed to adequately allege the contract at issue (i.e., the parties and terms).  The allegations within the breach of contract cause of action allege that “Plaintiff [singular] and Defendant [singular] entered into a written contract.”  (FAC ¶32).  However, at other points, the First Amended Complaint alleges that “Plaintiffs,” plural, paid “Defendants,” plural, and “Defendants,” plural, breached the contract.  (See FAC ¶¶33-36).  The documents attached to the First Amended Complaint, which Plaintiffs allege to be the agreement and evidence of deposit payments, refer only to Park Place and Plaintiffs.  (See FAC ¶¶14, 24-25, Ex.1-4). 

Plaintiffs fail to plead facts, as opposed to conclusions, to establish that any of the other Defendants are parties to the alleged written contract.  (See FAC ¶¶5, 10).  Additionally, Plaintiffs allege that Defendants breached the contract(s) by failing to deliver the carts in or about March of 2023.  (See FAC ¶¶16-17, 35, Ex.1, 2).  However, a delivery date for the carts is not included in the writings attached to the First Amended Complaint, which Plaintiffs contend form the written agreement between the parties.  (FAC ¶¶14, 24, Ex.1, 2).  Rather, Plaintiffs allege that the delivery date was discussed during the negotiation process.  (FAC ¶22). 

 

Because the contract and its terms are not adequately alleged, Plaintiffs have also failed to adequately allege Defendants’ breach thereunder.    

 

2nd cause of action – Intentional Misrepresentation and Fraud & 3rd cause of action – Negligent Misrepresentation

 

The elements of a fraud cause of action are: (1) a misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance on the misrepresentation and (5) resulting damage.   Stansfield (1990) 220 CA3d 59, 73.  The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance.  Cadlo (2004) 125 CA4th 513, 519.  Each element of a fraud and/or negligent misrepresentation cause of action must be pled with factual specificity.  Stansfield, supra; Cadlo, supra. 

 

In support of their fraud cause of action, Plaintiffs allege:   

 

“Defendant Bahadourian and Hoogenraad, along with their respective businesses, represented to Plaintiff that they would deliver the golf carts on tine [sic] if Plaintiff pays the requested funds to which Plaintiff complied in full.”

 

(See FAC ¶38).

 

Plaintiffs go on to allege that although they performed under the written agreement, “Defendants Bahadourian and Hoogenraad refused, and has continued to refuse, to deliver the requested golf carts to Plaintiff Zibelberg.”  (FAC ¶39).  However, the other allegations in the First Amended Complaint indicate in or around December of 2023 and/or January of 2024, Bahadourian and Hoogenraad agreed to discount each cart with a prospective delivery date of February 2024, which Plaintiff rejected.  (FAC ¶20).  Such allegations directly contradict Plaintiffs claim that Defendants have refused and continue to refuse to deliver the golf carts and knew any representation was false when made.      

 

With regard to the negligent misrepresentation cause of action, Plaintiffs allege that:

 

“46. Defendants Bahadourian and Hoogenraad represented to Plaintiff that they would deliver the golf carts to Plaintiff within a timer [sic] after Plaintiff made the required payment. Plaintiff did make the payments.

 

47. Defendants, and each of them, and more specifically Defendants Bahadourian and Hoogenraad made the representations to Plaintiff Zibelberg that they could and would protect Plaintiffs' rights by delivering the golf carts in a timely fashion being fully aware of the obligations of Plaintiffs to its ordering customers.”   

 

The allegations in paragraph 47 are so ambiguous that it cannot be determined what was purportedly represented.  Also, without any supporting facts, Plaintiffs go on to conclude that Bahadourian and Hoogenraad had no reasonable ground to believe their representations to Plaintiff were true.  (FAC ¶48). 

 

Further, Plaintiffs have failed to specifically allege which of the Defendants made what specific misrepresentation, when they were made and/or how.  As noted above, the contract does not include a completion/delivery date.

 

CONCLUSION

 

The demurrer is sustained.  Due to the liberal policy of allowing leave to amend and because this is only the First Amended Complaint and the first time the pleading is before the Court, Plaintiffs are given the opportunity to try to cure the defects in their pleading. 

 

A Second Amended Complaint is due to be filed and served within 30 days.