Judge: Michelle Williams Court, Case: 21STCV42861, Date: 2022-08-18 Tentative Ruling
Case Number: 21STCV42861 Hearing Date: August 18, 2022 Dept: 74
21STCV42861 HTTM
ENTERPRISES, INC. vs CALASIA CONSTRUCTION, INC
Demurrer of Workshop Kitchen & Bar LLC to Complaint
of HTTM Enterprises, Inc. dba Hi Tech Tile & Marble
TENTATIVE RULING:
The demurrer is SUSTAINED with 10 days leave to amend.
Background
On November 19, 2021, Plaintiff HTTM Enterprises, Inc. dba Hi Tech Tile
& Marble filed this action against Defendants Calasia Construction, Inc.,
CPF District Owner, LLC, American States Insurance Company, John Christopher
Murawski, Myrna Gonzales Murawski, Workshop Kitchen & Bar, LLC, Madison
Maquette, Good Times, LLC, and Jamison Properties. Plaintiff alleges it
performed work on two properties pursuant to contracts with general contractors
Calasia Construction, Inc., John Christopher Murawski, and Myrna Gonzales
Murawski. The complaint asserts causes of action for: (1) breach of contract;
(2) services rendered; (3) unjust enrichment; (4) quantum meruit; (5) open book
account; (6) foreclosure of mechanic’s lien; (7) claims on license bond; (8)
intentional misrepresentation; and (9) negligent misrepresentation.
On
June 28, 2022, the Court entered an Order of Dismissal dismissing Good Times,
LLC without prejudice pursuant to Plaintiff’s request. The Court’s order also
provided: “Pursuant to the representation of counsel that the case may settle
as to the remaining defendants, an Order to Show Cause Re: Dismissal Following
Settlement is scheduled for 08/30/2022 at 08:30 AM in Department 74 at Stanley
Mosk Courthouse.”
On
July 12, 2022, the took Defendant’s demurrer off calendar due to defective
service.
Demurrer
On
July 13, 2022, Defendant Workshop Kitchen & Bar LLC re-filed and properly
served its demurrer to the ninth cause of action for negligent
misrepresentation the grounds that the complaint fails to state facts
sufficient to constitute that cause of action.
The demurrer is unopposed. (Code Civ. Proc. §
1005(c).)
Meet and Confer
Defendant submitted the declaration of Christopher L. Mass, which satisfies
the requirements of Code of Civil
Procedure section 430.41.
Discussion
Standard
A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. In a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ.
Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege
ultimate facts sufficient to apprise the defendant of the factual basis for the
claim against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts
noting plaintiff’s proof. (C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A
“demurrer does not, however, admit contentions, deductions or conclusions of
fact or law alleged in the pleading, or the construction of instruments
pleaded, or facts impossible in law.” (S.
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
A
special demurrer to a complaint is appropriate when the grounds of the pleading
are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f);
Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor
demurrers based on uncertainty, which the court strictly construes even when
the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 616.)
Negligent Misrepresentation – Ninth
Cause of Action
The
elements of fraud, which give rise to the tort action for deceit, are (a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 638.) Fraud must be pled with particularity which “necessitates
pleading facts which 'show how, when, where, to whom, and by what means the
representations were tendered.” (Id.
at 645.) The burden of pleading fraud against a corporate entity is even
greater as the plaintiff must allege the names of the persons who made the
allegedly fraudulent representations, their authority to speak, to whom they
spoke, what they said or wrote, and when it was said or written. (Ibid.) “The same elements comprise a
cause of action for negligent misrepresentation, except there is no requirement
of intent to induce reliance.” (Cadlo v. Owens-Illinois, Inc. (2004) 125
Cal.App.4th 513, 519.) “Each element in a cause of action for fraud or
negligent misrepresentation must be factually and specifically alleged.” (Ibid.)
As
argued by Defendant, the ninth cause of action lacks the required specificity
to properly allege a negligent misrepresentation claim against an entity such
as Defendant Workshop Kitchen & Bar LLC. The Complaint alleges summary
representations without identifying any of the specific information required as
it pertains to Workshop Kitchen & Bar. (Lazar, supra, 12 Cal.4th at
638.) The complaint does not allege where, by whom, and to whom, the alleged
statements were made or the authority of any individual to make representations
on behalf of Defendant. The demurrer is SUSTAINED.
While
Plaintiff did not oppose the demurrer, this is the first pleading challenge and
the Court shall provide 10 days leave to amend.