Judge: Nick A. Dourbetas, Case: 2021-01179846, Date: 2022-12-20 Tentative Ruling
1. Demurrer to Amended Complaint
2. Demurrer to Amended Complaint
3. Motion to Strike
4. Motion to Strike Portions Of Complaint
DEMURRERS:
Defendants Jolly Berry Law, Kevin Jolly, Leah Berry, Joseph John Nazarian, Nazarian Law Firm APC, and Accident Lawyers Firm’s demurrers to the 2nd through 5th causes of action of the Second Amended Complaint of Sayedeh Sahba Amjadi are SUSTAINED in their entirety with 10 days leave to amend.
2nd Cause of Action: Fraud
The Court finds that this cause of action has not been alleged with the required specificity. The effect of the rule that fraud must be specifically pleaded is twofold:
1. A general pleading of the legal conclusion of fraud is insufficient since the facts constituting the fraud must be alleged; and
2. Every element of the cause of action for fraud must be alleged factually and specifically since the policy of liberal construction of pleadings will not ordinarily be invoked to sustain a defective pleading of fraud. Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898.
This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal.App.4th 301.
Further, “the requirement of specificity in a fraud action against a corporation (here Jolly Berry APC and Nazarian Law Firm) requires the plaintiff to 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.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 C.A.4th 153, 157 [complaint was insufficient].)
The above allegations are devoid of the required specific allegations to constitute this fraud cause of action.
Additionally, there are no specific allegations that plaintiff relied on certain representations when she entered into the retainer agreement. (An element of this cause of action require allegations the plaintiff reasonably relied on the representation. Manderville v. PCG & S Group, Inc., (2007) 146 Cal. App. 4th 1486, review denied.
There is a mention of reliance in the cited paragraph 13. That section states “AMJADI relied on this lie in retaining the JOLLY BERRY LAW firm.” Third Amended Complaint, paragraph 13, lines 9-10. But that’s the only mention of reliance in connection with this fraud cause of action. And it’s conclusory.
In connection with a fraud claim, justifiable reliance is the same as causation, thus, actual reliance occurs when a misrepresentation is an immediate cause of a plaintiff's conduct, which alters his or her legal relations, and when, absent such representation, the plaintiff would not, in all reasonable probability, have entered into the contract or other transaction. Hall v. Time Inc., (2008) 158 Cal. App. 4th 847.
3rd Cause of Action: Intentional Misrepresentation
This cause of action seems to allege both an affirmative misrepresentation and a breach of fiduciary duty claim. To the extent it intends to be one for intentional misrepresentation, the Court sustains the demurrer based on failure to allege the fraud with the required specificity. The claim lacks the details to support the fraud claim. (See discussion on demurrer to the second cause of action). To the extent is it attempting to assert a breach of fiduciary duty claim, it is duplicative of the sixth cause of action for breach of fiduciary duty.
Further, this claim lacks allegations that plaintiff justifiably relied on the representations when she entered into the retainer agreement. As discussed in connection with the 2nd cause of action, there are no allegations she “justifiably relied” on the alleged conduct.
4th Cause of Action: Negligent Misrepresentation
The elements of a negligent misrepresentation cause of action are the same as the ones for fraud except for the requirement of scienter. Bains v. Moores (2009)172 Cal. App. 4th 445, 454. In a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true. Id.
Negligent misrepresentation must be alleged with the same particularity required to plead fraud. Small v. Fritz Cos Inc. (2003) 30 Cal.4th 167, 184. The pleading must allege how, when, where, to whom and by what means the representations were tendered. Id. at 184.
As with the other causes of action, this claim lacks specificity, as well as allegations that plaintiff reasonable relied on the alleged representations.
5th Cause of Action: Intentional Infliction of Emotional Distress
To properly plead “extreme and outrageous conduct,” the alleged conduct must be pled with reasonable particularity. Hughes, supra, 46 Cal.4th at 1051; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516. Whether conduct is ‘outrageous’ is usually a question of fact. So v. Shin (2013) 212 Cal.App.4th 652, 671-672.
Plaintiff has not alleged actions or resulting emotional distress of such substantial quality or enduring quality that are so outrageous no reasonable person in civilized society should be expected to endure it.
Further, while recovery may be allowed for emotional distress alone, without resulting physical disability, the mere existence of emotional distress is not sufficient to support a cause of action for IIED; the emotional distress must be severe, that is, of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it. (Jackson v. Mayweather, (2017) 10 Cal. App. 5th 1240; The Kind & Compassionate v. City of Long Beach, (2016) 2 Cal. App. 5th 116.) In particular, shame, humiliation, embarrassment, or anger can constitute emotional distress, as required for a cause of action for IIED, but it must be severe and not trivial or transient. Bikkina v. Mahadevan, (2015) 241 Cal. App. 4th 70; Grenier v. Taylor, (2015) 234 Cal. App. 4th 471.
Motions to Strike
To the extent it is not moot, the motion to strike is DENIED as to the damages claimed in paragraph 47 and GRANTED with 10 days leave to amend, as to the remainder of the requested relief.
General damages, paragraph 47
Plaintiff has alleged facts to support her claim for general damages with regard to the first cause of action. General damages compensate a plaintiff “for harm or loss such as pain, suffering, emotional distress, and other forms of detriment that are sometimes characterized as subjective’ or not directly quantifiable.” Beeman v. Burling (1990) 216 Cal.App 3d 1586. Plaintiff has alleged in paragraph 46: “The conduct of Defendants JOLLY, BERRY, JOLLY BERRY LAW, NAZARIAN DEFEDANTS, and DOES 3 through 20, caused great and severe emotional distress and personal injuries to AMJADI, in a sum to be proven at the time of trial. Defendants also caused great emotional distress and monetary loss to AMJADI for their failure to sign the liens for the medical providers who turned her accounts over to collection.”
Punitive damages allegations and prayer
The prayer here is based on malice. Malice means “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code §3294(c)(1). Despicable conduct is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people [and] having the character of outrage frequently associated with crime.” Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716. Stated another way, “punitive damages are appropriate if the defendant's acts are reprehensible … [and which] could be described as evil, criminal, recklessly indifferent to the rights of the [plaintiff], or with a vexatious intention to injure.” Food Pro International, Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 994-995.
To establish conscious disregard, the operative pleading must include ultimate facts of defendant’s mindset, i.e.: that the wrong was committed willfully or with a design to injure (aka “intent to vex, injure or annoy”), as opposed to negligently or mistakenly. Spinks v. Equity Residential Brianwood Apartments (2009) 171 Cal.App.4th 1004, 1055; Lackner v. North (2006) 135 Cal.App.4th 1188, 1210. The plaintiff must show “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 61.
Since two of the defendants are business entities, plaintiff must plead facts showing that an officer, director or managing agent; (1) had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others; (2) authorized the bad act; (3) ratified the bad act; or (4) was personally (i.e., through controlling members) guilty of fraud, oppression or malice. Civil Code §3294(b); Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1148-1149. Moreover, as the employer, the entity defendants can only be held to answer for torts committed by employees: (1) in the course and scope of employment, (2) if there exists a reasonable relationship between the duties of employment and the conduct causing injury, and (3) the injury was reasonably foreseeable in light of the employer’s business or employee’s job responsibilities. See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298.
The only punitive damages allegations and prayer left standing are the allegations in the sixth cause of action. Those conclusory facts are insufficient to meet the criteria above. Therefore, the Court GRANTS the motion to strike, to the extent it is not moot.
Moving Party Kevin Jolly to give notice of all the above.