Judge: Michael E. Whitaker, Case: 25SMCV00156, Date: 2025-05-20 Tentative Ruling

Case Number: 25SMCV00156    Hearing Date: May 20, 2025    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from allegations of financial embezzlement. 

On January 13, 2025, Plaintiff Tradewinds Mechanical Parent, LLC (“Plaintiff”) filed suit against Defendant Kapish Haldia (“Defendant”) alleging eight causes of action for (1) breach of fiduciary duty; (2) negligent misrepresentation; (3) fraud (intentional misrepresentation); (4) constructive fraud; (5) violation of California Penal Code, § 496; (6) unjust enrichment; (7) violation of the California Unfair Competition Law (Bus. & Prof. Code, §§ 17200); and (8) accounting.

Defendant now demurs to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action under Code of Civil Procedure, section 430.10, subdivision (e).  Defendant also moves to strike Plaintiff’s requests for treble damages, attorneys’ fees, and punitive damages.  Plaintiff opposes both motions and Defendant replies.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          First Cause of Action – Breach of Fiduciary Duty

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.”  (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.) 

Defendant demurs on the grounds that the Complaint does not allege Defendant was a member or officer, or other relationship giving rise to a fiduciary duty.  The Complaint alleges:

1. This is a civil action seeking to remedy alleged wrongdoing committed by Haldia—TMP’s former Mergers & Acquisitions Advisor—who mismanaged and embezzled investment and operating capital for his personal benefit causing hundreds of thousands of dollars—if not millions—in damages to TMP.

2. Specifically, Defendant Haldia engaged in a wide array of apparent misconduct, including but not limited to: (i) making false representations to TMP’s members and officers in his capacity as a trusted advisor to the company, (ii) actively preventing and concealing the legitimate disclosure of TMP’s business records to members and officers of TMP who expressly requested that information, (iii) forging the signature of TMP’s Managing Member (Steven Brayet) on a corporate credit card program application (thereby attempting to bind Mr. Brayet as a personal guarantor) without TMP’s knowledge, and (iv) engaging in a wide array of self-dealing actions which were aimed to enrich himself at the legitimate expense of TMP and the money invested into TMP by numerous good faith investors.

[…]

8. Defendant Kapish Haldia is, and at all relevant times was, an individual residing in Venice, California. Haldia is TMP’s former Mergers & Acquisitions Advisor who, as part of his role in bringing the company to market, had access to TMP’s bank and financial accounts (which included having a credit card for what were supposed to be legitimate business and M&A-related expenses).

[…]

12. As the Operative LLC Agreement makes clear, Calico and CSH are the only two entities with ownership interests in TMP. Defendant Haldia has no ownership interest in TMP.

[…]

17. Defendant Haldia owed TMP fiduciary obligations by virtue of his role as its former Mergers & Acquisitions Advisor (TMP treated Haldia as a highly-placed officer of the company, and gave him access to its financial and bank accounts). Through his fiduciary relationship with TMP, Defendant Haldia owed TMP the highest obligation of good faith, fair dealing, loyalty, and due care.

(Complaint ¶¶ 1-2, 8, 12, 17, emphases added.)

            Thus, while the Complaint alleges Defendant acted as Plaintiff’s “trusted advisor,” the Complaint does not actually allege any relationship giving rise to a fiduciary duty. 

            In opposition, Plaintiff cites to Vai v. Bank of America (1961) 56 Cal.2d 329, 338 (hereafter Vai) as standing for the proposition:  “The key factor in the existence of a fiduciary relationship lies in control by a person over the property of another.”  (Ibid.)  But in Vai, the fiduciary relationship between estranged husband and wife going through divorce proceedings arose by virtue of the community property system.  The Court held that the husband still owed a fiduciary duty to his soon-to-be ex-wife, by virtue of his continued control over their community property, notwithstanding that the confidential relationship of trust had dissolved.  Thus, Vai creates a very narrow rule, specific to marriage dissolutions and community property.  It does not stand for the proposition that a fiduciary duty is created whenever one obtains control over another’s finances. 

            Therefore, the Court sustains Defendant’s demurrer to the first cause of action.

                                                       ii.          Second and Third Causes of Action – Negligent and Intentional Misrepresentation

“In a promissory fraud action, to sufficiently alleges [sic] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.”  (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.)   

The elements for fraudulent misrepresentation are “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.”  (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605–606.) 

“The essential elements of a count for negligent misrepresentation are the same [as intentional misrepresentation] except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.”  (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231 (hereafter Chapman).)  Like intentional misrepresentation, causes of action for negligent misrepresentation sound in fraud, and must also, therefore, be pleaded with particularity.  (Ibid.) 

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”  (Ibid.) 

“One of the purposes of the specificity requirement is notice to the defendant, to furnish the defendant with certain definite charges which can be intelligently met.”  (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)  As such, less specificity is required “when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy[.]”  (Ibid.)  “Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.”  (Ibid.) 

Defendant demurs to the second and third causes of action on the grounds that they are conclusory and not pleaded with the requisite specificity.  The Complaint alleges:

2. Specifically, Defendant Haldia engaged in a wide array of apparent misconduct, including but not limited to: (i) making false representations to TMP’s members and officers in his capacity as a trusted advisor to the company, (ii) actively preventing and concealing the legitimate disclosure of TMP’s business records to members and officers of TMP who expressly requested that information, (iii) forging the signature of TMP’s Managing Member (Steven Brayet) on a corporate credit card program application (thereby attempting to bind Mr. Brayet as a personal guarantor) without TMP’s knowledge, and (iv) engaging in a wide array of self-dealing actions which were aimed to enrich himself at the legitimate expense of TMP and the money invested into TMP by numerous good faith investors.

[…]

13. Yet, beginning in the first week of January 2025, Haldia challenged the validity of TMP’s Operative LLC Agreement—despite knowing it to be genuine—and falsely claimed that he held an ownership interest in TMP (despite also knowing that to be false). On information and belief, Haldia made these claims in order to justify his own misappropriation of TMP’s funds, which he knew TMP would soon discover (TMP ultimately discovered Haldia’s embezzlement and fraud for the first time in early January 2025).

14. Although TMP’s investigation remains ongoing, it has so far uncovered that Defendant Haldia, without TMP’s approval, (i) paid for personal expenditures using TMP’s Zelle funds, (ii) incurred numerous credit card charges, again for personal expenditures using TMP’s funds, (iii) directed that $40,000 be transferred to him for “deal deposits” when, in reality, Haldia used those funds to make a deposit for a residential lease, and (iv) forged the signature of TMP’s Managing Member (Mr. Brayet) on a corporate credit card program application (thereby attempting to bind Mr. Brayet as a personal guarantor) without TMP’s knowledge. On information and belief, it appears Haldia embezzled at least $500,000 from TMP over a two-year period, which he used to enrich himself.

[…]

23. As described above, Defendant Haldia made numerous representations to TMP, including to its investors and members, in his capacity as TMP’s Mergers & Acquisitions Advisor, about the condition and financials of TMP and about the business operations of TMP, that were false and designed to induce continued investments and to assure investors, officers, and members of TMP that the company was doing fine, despite knowing that the representations were false when made (given that Haldia was siphoning company funds for his own gain). Or, at a minimum, Defendant Haldia made the representations recklessly and without regard for their truth, and intended TMP to rely on the representations as true, which TMP did, to its detriment. Defendant Haldia made these representations while he was engaged in further financial misconduct, as described in paragraph 14.

24. In each of these instances, even if Defendant Haldia believed the statements to be true, Defendant Haldia had no reasonable grounds to believe that his representations to Plaintiff were true when he made the statements to Plaintiff because Defendant Haldia’s statements were contradicted by the corporate records of TMP, by his knowledge of the operational history of TMP, and by other facts which he expressly knew about the investors and investments and business.

25. In each of these instances, Plaintiff reasonably relied on Defendant Haldia’s statements and continued to allow Defendant Haldia to remain as the trusted M&A advisor of TMP, believing that he was acting in the best interests of TMP. The reliance was particularly reasonable because Defendant Haldia attempted to control all information flow, appointing himself as a highly placed M&A advisor who, as part of his role in bringing the company to market, had access to TMP’s bank and financial accounts.

26. For the reasons set forth above, Plaintiff has suffered, as a direct and foreseeable result of the negligent misrepresentation by Defendant Haldia to Plaintiff, significant economic damages in an amount subject to proof at trial but in any event greater than the jurisdictional minimum of the Court.

[…]

28. As described above, Defendant Haldia intentionally made numerous incorrect and/or misleading representations to TMP, including to its investors and members, in his capacity as TMP’s Mergers & Acquisitions Advisor, about the condition and financials of TMP and about the business operations of TMP, that were false and designed to induce continued investments and to assure investors, officers, and members of TMP that the company was doing fine, despite knowing that the representations were false when made (given that Haldia was siphoning company funds for his own gain). Among other things, Haldia:

a) paid for personal expenditures using TMP’s Zelle funds (without TMP’s approval), yet misrepresented the nature and character of those charges;

b) incurred numerous credit card charges—again for personal expenditures using TMP’s funds, and without TMP’s approval—while misrepresenting the nature and character of those charges, too;

c) forged the signature of TMP’s Managing Member (Mr. Brayet) on a corporate credit card program application (thereby attempting to bind Mr. Brayet as a personal guarantor) without TMP’s knowledge; and

d) directed that $40,000 be transferred to him for “deal deposits” when, in reality, Haldia used those funds to make a deposit for his own residential lease. More specifically, on December 31, 2024, Haldia told Chris Armstrong—TMP’s Vice President of Corporate Controls—to wire $40,000 to him, which Haldia falsely represented was in furtherance of a new equity financing transaction for TMP. In reality, however, Haldia never intended to use those funds for the company, but instead, as a deposit for a residential lease for himself. Armstrong justifiably relied on Haldia’s representations, and wired $40,000 to Haldia from a TMP bank account (to an account provided by Haldia).

29. In each of these instances, Defendant Haldia knew that his representations to TMP were false when he made the statements to TMP, or he made these representations recklessly and without regard for their truth. Moreover, in each of these instances, Defendant Haldia intended that TMP rely on the representations he made to TMP. In each of these instances, TMP reasonably relied on Defendant Haldia’s statements and continued to allow Defendant Haldia to remain as a trusted advisor to TMP, believing that he was acting in the best interests of TMP. The reliance was particularly reasonable because Defendant Haldia attempted to control all information flow, appointing himself as a highly placed M&A advisor who, as part of his role in bringing the company to market, had access to TMP’s bank and financial accounts.

(Complaint ¶¶ 2, 13-14, 23-26, 28-29.)

            Plaintiff has not alleged the who, what, when, and how of each and every alleged misrepresentation, but has alleged some factual detail that Defendant made numerous misrepresentations in furtherance of effectuating and/or concealing his own self-dealing and embezzlement.  For example, Plaintiff alleges that on December 31, 2024, Haldia told Chris Armstrong to wire $40,000 to him in furtherance of a new equity financing transaction for TMP, when in fact it was for a personal residential lease.  (Complaint ¶ 28.)

            Moreover, the exact details and full extent of Plaintiff’s misrepresentations may be more within Plaintiff’s knowledge than Defendant’s.  The Court finds under the circumstances that Plaintiff is required to allege the who, what, when, and how of each and every misrepresentation Defendant allegedly made in furtherance of his scheme to embezzle $500,000 from Plaintiff. 

            Therefore, the Court sustains Defendant’s demurrer to the second and third causes of action.

                                                     iii.          Fourth Cause of Action – Constructive Fraud

“Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.”  (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.)  “Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.”  (Ibid.)  The “elements of constructive fraud cause of action are (1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).”  (Ibid.)

In addition to the allegations above, the Complaint alleges as to the fourth cause of action:

33. Defendant Haldia has engaged in constructive fraud applicable to a fiduciary or confidential relationship as existed here between TMP as a corporate entity, on the one hand, and Defendant Haldia as a trusted M&A advisor to TMP, on the other hand.

34. Plaintiff is informed and believes that a confidential or fiduciary relationship existed at all relevant times between Defendant Haldia, on the one hand, and Plaintiff, on the other hand, based on Defendant Haldia’s status as a trusted advisor to TMP, which carried with it the concomitant duties to faithfully account to TMP, to preserve the value of TMP, and to not willfully divert TMP’s assets to himself.

35. Plaintiff is further informed and believes that, despite being under a duty to faithfully account to TMP, Defendant Haldia concealed material facts from TMP, its members, and investors by, among other things: (i) failing to turn over requested information to TMP in spite of statutory and/or other legal obligations to account to TMP; and (ii) misappropriating TMP’s funds and assets for his own personal use and benefit.

(Complaint ¶¶ 33-35.)

As discussed above, because allegations that Defendant was “a trusted advisor” fail to allege a fiduciary relationship, the Court similarly sustains Defendant’s demurrer to the fourth cause of action.

                                                     iv.          Fifth Cause of Action – Violation of Penal Code § 496

Section 496 of the Penal Code applies to “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained” and provides, “Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” 

            Defendant demurs on the grounds that the Complaint fails to allege specific facts of theft or criminal intent, as opposed to mere nonperformance or falsity. The Court disagrees.  As discussed above, the Complaint alleges specific facts that Defendant intentionally and repeatedly embezzled company funds for personal use and lied to cover it up.  Whether those allegations ultimately prove to be true is an issue for later stages of the litigation, but for pleading purposes, Plaintiff adequately alleges theft for purposes of Penal Code section 496.

            Accordingly, the Court overrules Defendant's demur to the fifth cause of action.

                                                       v.          Sixth Cause of Action – Unjust Enrichment

Defendant demurs to the sixth cause of action for unjust enrichment on the grounds that there is no such cause of action.  The Court agrees.

[T]here is no cause of action in California for unjust enrichment. The phrase Unjust Enrichment does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.  Unjust enrichment is a general principle, underlying various legal doctrines and remedies, rather than a remedy itself. It is synonymous with restitution.

(Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [cleaned up]; accord Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 [unjust enrichment is not a cause of action].)   

            Therefore, the Court sustains Defendant’s demurrer to the sixth cause of action.

                                                     vi.          Seventh Cause of Action – Unfair Competition Law

Business and Professions Code section 17200, known as the Unfair Competition Law, or “UCL,” bars unfair competition, defined as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.  “An ‘unlawful’ business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.”  (Bernardo v. Planned Parenthood Federation of Am. (2004) 115 Cal.App.4th 322, 351.)  “By proscribing ‘any unlawful’ business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”  (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)  Moreover, “a practice may be deemed unfair even if not specifically proscribed by some other law.”  (Ibid.)

Defendant demurs to the seventh cause of action on the grounds that it fails to allege unfair, unlawful, or fraudulent business practice with requisite particularity, nor does it allege a predicate violation of law. 

The Court agrees.  As discussed above, Plaintiff fails to allege the fraud-based causes of action with the requisite particularity.  Therefore, the Court sustains Defendant’s demurrer to the seventh cause of action.

                                                    vii.          Eighth Cause of Action – Accounting

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.”  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.)  “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.”  (Ibid.)  “A plaintiff need not state facts that are peculiarly within the knowledge of the opposing party.”  (Ibid.)

Defendant demurs to the eighth cause of action on the grounds that no fiduciary relationship exists between Plaintiff and Defendant.  While the Court agrees that Plaintiff has not alleged a fiduciary relationship, a fiduciary relationship is not a prerequisite to an accounting.  Plaintiff merely must allege that a relationship existed and that due to that relationship, a balance is due that can only be ascertained by an accounting.

Here, as discussed above, Plaintiff alleges that Defendant was Plaintiff’s financial adviser, with access to Plaintiff’s finances, and that Defendant lied and covered up the theft.  As such, Plaintiff’s financial records cannot necessarily be trusted, and entries which appear legitimate on their face may in fact have gone to pay for Defendant’s personal expenses.  As such, Plaintiff requires an accounting from Defendant to ascertain the true amount that was embezzled.

Therefore, the Court overrules Defendant’s demurrer to the eighth cause of action.

2.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

Here, as discussed above, Plaintiff fails to adequately allege the fraud related causes of action.  Consequently, the Court finds that Plaintiff has not adequately alleged facts sufficient to support the claim for punitive damages. 

Further, Plaintiff adequately alleges a violation of Penal Code section 496.  As such, the Court will not strike Plaintiff’s request for treble damages or attorneys’ fees brought pursuant to that section.

3.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet this burden as it does not specify what facts could be added to the complaint to rectify the deficiencies identified above.    

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendant’s demurrer to the first, second, third, fourth, sixth and seventh causes of action, without leave to amend, and overrules Defendant’s demurrer to the fifth and eighth causes of action.

Further, the Court denies, in part, Defendant’s motion to strike as to the claims for treble damages and attorneys’ fees under Penal Code section 496, and grants, in part, Defendant’s motion to strike Plaintiff’s claim for punitive damages, without leave to amend.

Defendant shall file and serve an Answer to the Complaint on or before June 6, 2025. 

Defendant shall also provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  May 20, 2025                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court