Judge: Monica Bachner, Case: 21STCV36045, Date: 2022-12-19 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV36045    Hearing Date: December 19, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Susan Devall’s and Modern Design House, Inc.’s demurrer to first amended complaint of Plaintiff Carla Barboza is sustained with leave to amend within 20 days as to the 5th and 6th causes of action.

          Defendants Susan Devall (“Devall”) and Modern Design House, Inc. (“Modern Design”) (collectively, “Defendants”) demur to the 5th (fraudulent representation under Civil Code §1710(1)) and 6th (fraud- suppression of fact under Civil Code §1710(3)) causes of action in the first amended complaint (“FAC”) of Plaintiff Carla Barboza (“Barboza”) (“Plaintiff”).  Defendants demur on the grounds that the fifth and sixth causes of action fail to allege sufficient facts to constitute causes of action.  (Notice of Demurrer, pg. 1; C.C.P. §430.10(e).)

On September 30, 2021, Plaintiff filed her initial complaint in the instant action.  On May 9, 2022, Plaintiff filed her FAC against Defendants and non-moving Defendants alleging ten causes of action: (1) conversion, (2) breach of contract, (3) negligence, (4) negligent construction, (5) fraud under Civil Code §1710(1), (6) fraud under Civil Code §1710(3), (7) violation of Business and Professional Code §7160, (8) unfair business practices under Business and Professional Code §17200 et seq., (9) claim on contractor’s license bond, and (10) Business and Professional Code §7028.  (See FAC.)  Plaintiff alleges she is the owner of the Property who hired a contractor, which resulted in the alleged negligent construction of a swimming pool at the Property.  (FAC ¶¶1, 29, 36.) 

Plaintiff alleges Defendant Devall is an interior designer/decorator who submits invoices with the name and address of Modern Design House.  (FAC ¶4.)  Plaintiff alleges she hired Defendant Devall to perform interior design and decorating services at her home and office since 2003.  (FAC ¶15.)   Plaintiff alleges on October 14, 2020, she texted Defendant Devall that she wanted to install a swimming pool at her home.  (FAC ¶15.)  Plaintiff alleges on November 7, 2020, Defendant Devall introduced Plaintiff to a general contractor, Non-moving Defendant H&E Builders Services and its owner Non-moving Defendant Henry Garcia (collectively, “H&E”).  (FAC ¶¶16-17.)  Plaintiff alleges the parties and a pool contractor met at the home and discussed the pool project, and Defendant Devall and Defendant Garcia assured Plaintiff a pool contractor would lead the construction of the pool.  (FAC ¶17.)  Plaintiff alleges approximately a month later, Defendant Devall sent Plaintiff an Excel spreadsheet containing an estimate for the project of $96,907.  (FAC ¶18.)  Plaintiff alleges that based on their prior work together, Plaintiff did not expect to receive a formal written contract and no formal written contract was signed.  (FAC ¶18.)  Plaintiff alleges the parties entered into a part written and part oral contract for the pool project and Plaintiff sent Defendant Devall an initial payment of $50,000 for the project.  (FAC ¶¶18-19, 21.) 

Plaintiff alleges H&E began construction and on January 19, 2021, Plaintiff texted Defendant Devall that she was not confident that H&E was performing the work for the pool project competently, to which Defendant Devall replied she was doing very large projects with H&E and the inspector on the last project said it was some of the cleanest work done, and assured Plaintiff that H&E’s work on the other projects had been excellent.  (FAC ¶26.)  Plaintiff alleges she asked Defendant Devall on January 19, 2021, if the pool equipment, including a heater and filter, had been purchased, to which Defendant Devall replied that it had been purchased, which Plaintiff alleges was not true.  (FAC ¶27.)  Plaintiff alleges on January 25, 2021, Defendant Devall emailed Plaintiff an updated excel spreadsheet and requested an additional $25,000 payment, which included $7,800 for a concrete deck between the pool and the front porch.  (FAC ¶¶25, 28.)  Plaintiff alleges she was unsatisfied with the quality of work performed by H&E and texted Defendant Devall on January 26, 2021, that H&E was getting worse, not better.  (FAC ¶29.)  Plaintiff alleges on January 27, 2021, she ceased all communication with Defendant Garcia because he continued to misrepresent the content of those conversations to Defendant Devall.  (FAC ¶ 30.) Plaintiff alleges on February 2, 2021, Defendant Devall sent Plaintiff a text message stating, “I know you don’t want to give [Defendant Garcia] any more money but I have paid for all the labor to date and the pool equipment etc. and the materials so if you could send a progress payment that would be awesome.”  (FAC ¶31.)  Plaintiff alleges Defendant Devall’s statement was false and Defendant Devall had not yet purchased the pool equipment or paid for all the labor to date.  (FAC ¶31.)  Plaintiff alleges on February 3, 2021, she gave Defendant Devall a check for $25,000 as payment toward the pool project.  (FAC ¶32.)  Plaintiff alleges Defendant Devall purportedly purchased the pool equipment on February 12, 2021, and told Plaintiff Defendant Garcia had constructed the pool without a pool contractor, since the pool contractor who was initially hired had passed away and a series of other pool contractors had not worked out.  (FAC ¶33.)  

Plaintiff alleges she was able to enter the pool after it was filled with water in early March 2021, and noticed deficiencies with the pool and tile and immediately informed Defendant Devall.  (FAC ¶36.)  Plaintiff alleges on March 24, 2021, Defendant Devall acknowledged Defendant Garcia’s poor workmanship and did not defend the quality of his work.  (FAC ¶37.)  Plaintiff alleges on March 26, 2021, Plaintiff told Defendant Devall she did not want H&E to return to the property, and Defendant Devall said she accepted Plaintiff’s decision and offered assurances the pool would be completed within the original budget provided, which Plaintiff alleges were false assurances.  (FAC ¶38.)  Plaintiff alleges in April 2021 Defendant Devall convinced Plaintiff to allow stucco workers to try to make repairs to stucco that had been installed by H&E on the outer walls of the pool; Defendant Devall assured Plaintiff the workers who would repair the stucco were not from H&E’s crew, which was false.  (FAC ¶39.)  Plaintiff alleges on April 20, 2021, the stucco crew that arrived to perform repairs were part of H&E’s crew.  (FAC ¶40.)  Plaintiff alleges the stucco crew admitted to Plaintiff that they could not repair the stucco, and their efforts made the stucco look worse than before the repairs were attempted.  (FAC ¶40.)  Plaintiff alleges on April 30, 2021, Defendant Devall asked Plaintiff for a “partial payment,” and when Plaintiff asked Defendant Devall by text to show Defendant Devall’s out of pocket costs, Defendant Devall replied she had paid “everything labor and materials except for just under $8,000,” which Plaintiff alleges was a false statement.  (FAC ¶42.)  Plaintiff alleges she was surprised to hear that Defendant Devall paid Defendant Garcia after Plaintiff told Defendant Devall not to pay Defendant Garcia until the work was properly done and asked Defendant Devall if she had paid Defendant Garcia all the money he was owed, to which Defendant Devall said no, which was false.  (FAC ¶43.)  Plaintiff alleges that at a May 17, 2021, meeting, Defendant Devall led Plaintiff to believe she would assist in finding appropriate solutions to the problems that had occurred and repeatedly promised Plaintiff would not have to pay beyond what was in the estimate to complete the pool, which Plaintiff alleges was false.  (FAC ¶51.)  At the May 17, 2021, meeting, Defendant Devall represented to Plaintiff that she would withhold some of H&E’s money on another, larger project that they were working on and use those monies to pay for some of the repairs to H&E’s work, and based on Defendant Devall’s assurances, which Plaintiff later learned were false, Plaintiff asked her former contractor to provide estimates on what it would cost to fix H&E’s work and what it would cost to finish the pool.  (FAC ¶52.) 

Plaintiff alleges on May 21, 2021, she informed Defendant Devall about a possible heater malfunction that might have caused stains in the pool and asked Defendant Devall to send the receipts or invoices that she had for the pool equipment, which Defendant Devall refused to provide, and instead replied that Adams of Showtime Pools had purchased and installed the equipment and told Plaintiff to call Adams.  (FAC ¶53.)  Plaintiff alleges she asked Defendant Devall to send a receipt for Defendant Devall’s purported purchase of the pool equipment because Defendant Devall admitted that she had paid for the pool equipment, for which Defendant Devall replied, “I just wrote the check.”  (FAC ¶54.)  Plaintiff alleges she asked Defendant Devall to send a copy of the check because Plaintiff wanted to explore getting the heater, which was under warranty, repaired, and Defendant Devall refused Plaintiff’s requests for proof of payment for the pool equipment and installation and never provided any proof of payment for the pool equipment and installation.  (FAC ¶54.)  Plaintiff alleges she met with Defendant Devall on June 22, 2021, at 9:00 AM on a Zoom video call and stated she wanted $34,000 to cover the cost of redoing H&E’s work, to which Defendant Devall stated she withheld $32,000 from H&E on the other project and promised to speak to Defendant Garcia and get back to Plaintiff, which Plaintiff alleges was a false promise.  (FAC ¶58.)  Plaintiff alleges on June 30, 2021, Plaintiff asked Defendant Devall for an accounting on the $75,000 and replied that she was out of town.  (FAC ¶66.)  Plaintiff alleges on July 5, 2021, Plaintiff asked Defendant Devall to send the accounting, to which Defendant Devall did not respond and has not communicated with Plaintiff since June 30, 2021.  (FAC ¶66.)

On June 9, 2022, Defendant filed the instant demurrer. Plaintiff filed her opposition on December 6, 2022.  Defendants filed their reply on December 12, 2022.

Summary of Demurrer

In support of their demurrer to Plaintiff’s fifth and sixth causes of action, Defendants argue Plaintiff’s causes of action for fraud fail because it is improper for a plaintiff to plead a breach of contract claim as an intentional tort when there is no alleged breach of an independent duty.  (Demurrer, pgs. 5-8.) 

Failure to State a Claim

Fraudulent Representation under Civil Code §1710(1) & Fraud- Suppression of Fact under Civil Code §1710(3) (5th & 6th COAs)

“The elements of fraud that will give rise to a 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.’ [Citation.]”  (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, citation omitted.)

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been 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 must have sustained damage.”  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)  “In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.”  (Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.)

Defendants argue Plaintiff fails to allege misrepresentations or concealments by Defendants outside of the course and scope of their performance of the contract, and fail to demonstrate any alleged violation of “an independent duty arising from principles of tort law” separate and distinct from Defendants’ obligations arising from their contractual relationship with Plaintiff.  (Brown v. California Pension Administrators & Consultants, Inc. (1996) 45 Cal.App.4th 333, 346, citing Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102.)

 As the Supreme Court recognized: “ ‘[C]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.’” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 989.)  Robinson Helicopter is limited to those circumstances when the tortious conduct is both separate from the breach of contract and caused damages independent of the contractual breach.  (Id. at pg. 991.)  Plaintiff has not alleged that defendants owed any duty to plaintiff other than to fulfill the contract promises.  Plaintiff’s fraud claims arise entirely from her contention that Defendants breached the duties they owed to her arising from their contractual relationship. (FAC ¶¶101, 102, 105, 112, 113.)  Accordingly, Defendants’ demurrer to the 5th and 6th causes of action is sustained with leave to amend within 20 days.

Dated:  December ____, 2022

Hon. Monica Bachner

Judge of the Superior Court