Judge: Michael Small, Case: 23STCV23854, Date: 2025-06-16 Tentative Ruling
Case Number: 23STCV23854 Hearing Date: June 16, 2025 Dept: 57
Pending before the Court is the demurrer of Defendants Margarita V. Shekhter, Alan Shekhter, Adam Shekhter, and Alexander Shekhter (collectively, “Moving Defendants”) to the claim against them for fraud that is asserted in the Third Amended Complaint ("the TAC") of Plaintiff Alex Nerush ("Nerush"). The Court is sustaining the demurrer without leave to amend.
As alleged in the TAC, Nerush's claim for fraud against the Moving Defendants is based on the proposition that they concealed material facts from him. In particular, Nerush alleges that the Moving Defendants were involved in meetings between Nerush and Defendant Naum Neil Shekhter (“Naum”) and that the Moving Defendants concealed Naum's financial condition and the misrepresntaitons that Naum made to Nerush. The Court previously overruled Naum's demurrer to the claim against him for fraud in Nerush's Second Amended Complaint.
In his opposition to the Moving Defendants' demurrer, Nerush contends that the heightened pleading standards for other types of fraud claims do not apply to fraud claims that are based on alleged concealment. Nerush is incorrect. the cases that Nerush cites do not stand for that proposition. To be sure, the requirement to plead how, when, where, to whom, and by what means misrepresentations were communicated do not apply to concealment. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 [“How does one show ‘how’ and ‘by what means' something didn't happen, or ‘when’ it never happened, or ‘where’ it never happened?”].) That said, a party alleging fraudulent concealment must plead with specificity "(1) the content of the omitted facts, (2) defendant's awareness of the materiality of those facts, (3) the inaccessibility of the facts to plaintiff, (4) the general point at which the omitted facts should or could have been revealed, and (5) justifiable and actual reliance, either through action or forbearance, based on the defendant's omission.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal. 5th 1, 43-44.) A defendant has a duty to disclose information that is not accessible to the plaintiff (Id. at p. 43-44.)
The TAC fails to allege a relationship between Moving Defendants and Nerush that requires disclosure, nor does it allege any specific information that was not disclosed. Though Nerush argues that he and Moving Defendants had a contractual relationship, (Opposition, p. 4), the TAC does not allege that Plaintiff and Moving Defendants entered any contracts together. The TAC generally alleges that Moving Defendants “were also involved in securing loans on the properties using false and fraudulent applications” (TAC, ¶ 60). But it does not specifically allege who the parties to these contracts were, the extent of the Moving Defendants' involvement, and what specific properties, loans, or applications were involved. In short, Nerush's fraud by concealment allegations against Moving Defendants lack the requisite specificity to support this claim.
The TAC also does not allege any fraud beyond the supposed concealment by Moving Defendants. It lacks allegations of specific false representations or false promises made by Moving Defendants. (Demurrer, p. 7.) Allegations for those types of fraud also require specific details, which are not pled here. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792-793.)All told, the TAC lacks the basic elements of a fraud by concealment claim, or any fraud claim, against the Moving Defendants. At this point, after multiple amendments to the initial complaint, the Court concludes that it does not appear reasonably possible that Nerush can amend the complaint to make out a fraud claim against the Moving Defendants. Accordingly, the Court is sustaining the Movin(g Defendants' demurrer without leave to amend. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)