Judge: Nathan R. Scott, Case: Sneary vs. Gauntlet Holdings LLC, Date: 2022-10-07 Tentative Ruling

Defendant Charlie Stein’s demurrer is overruled. (See Code Civ. Proc. § 430.10, subd. (e).)

Defendant shall file and serve his answer, if at all, within 10 days.

Timeliness.  The court exercises its discretion to hear the demurrer despite it being filed late.  (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)  Plaintiff was able to prepare a full opposition on the merits.

2nd cause of action, intentional fraud.  The SAC states facts sufficient to constitute this cause of action against defendant. 

As the opposition notes:  “Whether or not Stein individually spoke with either of the plaintiffs makes no difference to Stein’s liability . . . .  Stein, as a co-conspirator, is responsible for the actions, misrepresentations, false promises, etc. of each and every co-conspirator in pursuit of the alleged fraud.”  (Opp. at p. 8; accord IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652 [conspiracy is “a form of vicarious liability by which one defendant can be held liable for the acts of another”].) 

The SAC adequately alleges the underlying fraud and defendant’s vicarious liability as a conspirator.  (See AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 [conspiracy elements]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 645 [fraud elements]; see also SAC ¶¶ 15-32, 51-62.) 

Defendant’s cited cases involve the evidence needed to prove conspiracy at trial, not the allegations needed to survive demurrer.  (See Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333-335; Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581-1583.)  While a conspiracy may be difficult to prove at trial, for pleading purposes it remains relatively “easy to allege.”  (Choate, at p. 333.) 

Defendant shall give notice.