Judge: Michael Shultz, Case: 23CMCV01806, Date: 2024-01-04 Tentative Ruling

Case Number: 23CMCV01806    Hearing Date: February 27, 2024    Dept: A

Tuesday, February 27, 2024, at 8:30 a.m.

[TENTATIVE] ORDER SUSTAINING DEMURRER TO PLAINTIFF’S COMPLAINT

I.        BACKGROUND

      The complaint alleges that Plaintiff suffered injury on October 10, 2017, while employed with Defendant, Plentitude Transportation, Inc. Plaintiff continued to work until he was terminated as he was unaware of his rights as an injured worker. Plaintiff alleges claims for fraud, intentional tort, and emotional distress.

      Defendants, Oscar Flores and Plentitude Transportation, Inc. (collectively “Defendants”) argue that the complaint is defective as it is uncertain. Plaintiff failed to allege the claims with required specificity, and the claims are barred by the statute of limitations.

      Defendants timely served the demurrer on Plaintiff by mail. Plaintiff did not file an opposition.

II.      LEGAL STANDARDS

      The bases for demurrer are limited by statute and may be sustained for reasons including failure to state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10.) A demurrer “tests the sufficiency of a complaint as a matter of law and raises only questions of law.” (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)

      Defense counsel attempted to meet and confer in good faith with Plaintiff, who did not respond. (Matthew Huzanich decl.)

III.    DISCUSSION

A.      Demurrer to the first cause of action for fraudulent concealment is SUSTAINED with leave to amend.

      To establish that a claim is barred by the statute of limitations, “the defect must clearly and affirmatively appear on the face of the complaint. A demurrer will not lie where the action may be but is not necessarily barred.” (Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, 1117.) An action for relief based on fraud or mistake is three years, and "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." (Code Civ. Proc., § 338.)

      The complaint alleges that Defendants terminated Plaintiff in February 2019 and “immediately and fraudulently” closed the company, continuing to operate under a different name. (Complaint, ¶ 15.) Plaintiff alleges that Defendants intentionally suppressed from Plaintiff the true facts, to hide their unlawful scheme. (Complaint, ¶ 19.)

      As Plaintiff did not allege when he discovered the “true facts,” the complaint is not clearly barred by the statute of limitations. The claim, however, is not alleged with required specificity.

      A claim for fraudulent concealment must be supported by facts showing “(1) the defendant concealed or suppressed a material fact, (2) the defendant was under a duty to disclose the fact to the plaintiff, (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage.” Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310–311.)

      There are “four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Id. at 311.) If a fiduciary relationship does not exist, then the three other circumstances apply, however, the plaintiff must establish “the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.” (Id. at 311.)

      Plaintiff has not alleged what particular facts Defendants allegedly suppressed or that Defendants intended to defraud. The alleged “scheme” is not factually or specifically described. Plaintiff does not allege what he would have done differently had he known of the true facts. The only fraud referred to is the “fraudulent closing” of the company. Without more, the claim is fatally uncertain.

      Leave to amend is ordinarily granted where the complaint is capable of amendment, even if the plaintiff does not ask for leave to amend. (Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 689.)

B.      Demurrer to the second cause of action for intentional tort is SUSTAINED without leave to amend.

      This claim is based on the allegation that Defendants “maliciously and with intent, taunted him and belittled him in front of his coworkers on a daily basis.” (Complaint, ¶26.) The claim appears to state a claim for intentional infliction of emotional distress.

      Claims arising from personal injury, including mental suffering and emotional distress, must be filed within two years from the date of injury. (Code Civ. Proc., § 335.1; Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 853 ["A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.”

      The complaint alleges that Defendants terminated his employment in February 2019. (Complaint, ¶ 13.) The complaint implies that intentional conduct occurred during his employment. (Complaint, ¶ 14.) Therefore, the intentional tort accrued, at the latest, by February 2019. Plaintiff filed this action on November 9, 2023. Accordingly, this claim is barred by the two-year statute of limitations. The court may deny leave to amend where the claim is clearly barred. (Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 35; Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 689 ["Denial of leave to amend is appropriate only when it conclusively appears that there is no possibility of alleging facts under which recovery can be obtained."].)

C.      Demurrer to third cause of action for emotional distress is SUSTAINED with leave to amend to the extent it arises from the first cause of action for fraud.

      This claim is based on the first and second causes of action and because Defendants defrauded Plaintiff of “his loss of earnings and by not taking responsibility for his injuries and medical bills incurred and failure to pay money that is rightfully owed to Plaintiff. (Complaint, ¶ 29.)  To the degree this claim is derived from the first cause of action for fraudulent concealment, it is defective for the reasons previously stated. Insofar as this claim arises from the second cause of action for intentional infliction of emotional distress, it is barred by the statute of limitations.  

IV.  CONCLUSION

      Based on the foregoing, the demurrer to the first cause of action is SUSTAINED with leave to amend. Where the third cause of action for emotional distress arises from the fraud claim, demurrer is SUSTAINED with leave to amend. Demurrer to the second cause of action is SUSTAINED WITHOUT leave to amend.

      Plaintiff has 10 days to file an amended pleading that cures the defects noted above.