Judge: Nick A. Dourbetas, Case: 23-01305601, Date: 2023-08-11 Tentative Ruling

Demurrer to Cross-Complaint

Cross-Defendants Premier Group International and Joseph Dalu’s Demurrer to Cross-Complainant Cesar Quintana’s Cross-Complaint is SUSTAINED, with thirty (30) days leave to amend, as to the 1st, 3rd, and 4th causes of action and OVERRULED as to the 2nd cause of action.

Cross-Defendants Premier Group International (“PGI”) and Joseph Dalu (collectively “Cross-Defendants”) demur to Cross-Complainant Cesar Quintana’s (“Cross-Complainant” or “QUINTANA”) Cross-Complaint, the 1st through 4th causes of action.

Special Demurrer for Uncertainty

A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.  (People v. Lim (1941) 18 Cal.2d 872, 883.)  A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant’s knowledge.  (Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300.)

Cross-Defendants contend that the Cross-Complaint is uncertain because a copy of the alleged written contract upon which the causes of action are based is not attached; the Complaint alleges the contract at issue was oral, not written; that PGI maintains there is no written contract between the parties; and the lack of a meaningful written contract subjects the Cross-Complaint to a demurrer for uncertainty. The Cross-Complaint is not so unintelligible that Cross-Defendants cannot reasonably respond.  Any ambiguities can be clarified through discovery.  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.)  Accordingly, the special demurrer for uncertainty is OVERRULED.

1st cause of action for intentional misrepresentation.

Cross-Defendants demur to the intentional misrepresentation cause of action on the grounds it is conclusory and lacks the specificity required to plead fraud; that intent not to perform is not alleged; that the facts demonstrating justifiable reliance is not pled; and that the Cross-Complaint does not allege that PGI did not intend or did not actually perform the investigative services.

Cross-Complainant, in Opposition, contends the intentional misrepresentation claim is sufficiently pled in paragraphs 10 through 13.

The “elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation i.e., scienter; (3) intent to reduce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages.” (Cadlo v. Ownes-Illinois, Inc. (2005) 125 Cal.App.4th 513. Facts supporting each element must be pleaded with particularity sufficient to show how, when, where, to whom, and by what means the representations were tendered.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  General and conclusory allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74.)  Every element of fraud must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904.)

Here, the Cross-Complaint alleges that Cross-Defendants represented that they would diligently perform the services in locating and effectuating the return of Cross-Complainant’s young child; that they made contracts and operatives in London and Ukraine that could help find his child; that Cross-Defendants misrepresented their abilities, skills, and contracts to recover Cross-Complainant’s child; that the statements were untrue and made with the intent to fraudulently induce Cross-Complainant to give them money and enter into the contact; and that Cross-Complainant has been damaged by the false misrepresentations;  (See Cross-Complainant, ¶¶ 8, 10, 11, 19-20.)

The Cross-Complaint, however, fails to allege intent to reduce reliance or Cross-Complainant’s justifiable reliance on the misrepresentations as required. Accordingly, the demurrer is SUSTAINED with leave to amend.

2nd causes of action for fraud – entering contract without intent to honor it.

Cross-Defendants demur to the fraud-entering contract without intent to honor it on the grounds it is duplicative of the first cause of action for intentional misrepresentation; that framing the cause of action as Cross-Defendants never intending to fulfill their obligations is the same as alleging that they made statements with the intent to fraudulently induce Cross-Complainant.

Cross-Complainant, in Opposition, contends the Cross-Complaint alleges that DALU personally authorized bogus billings and illegal activities; that their claim that they had contacts in Ukraine and the requisite skills and contracts to effectuate the contract were untrue; that Cross-Defendants never had any intention of honoring the contract; and that all of their actions were a scheme to submit bogus billings which they did.

“‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations omitted.] An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. [Citation omitted.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

Here, the Cross-Complaint alleges that Cross-Defendants never intended to fulfill their obligations under the contract. (See Cross-Complaint, ¶ 23.) As such, a cause of action for promissory fraud is sufficiently pled and the demurrer is OVERRULED.

3rd cause of action for unjust enrichment.

Cross-Defendants demur to the unjust enrichment cause of action on the grounds no cause of action is stated because the Cross-Complainant alleges he “placed moneys with the Cross-Defendants” induced by means of fraud and fraudulent misrepresentations and this simply restates the 1st cause of action for fraud. Cross-Defendants further contend unjust enrichment is simply a remedy and because fraud has not been properly alleged, there is no basis for the unjust enrichment claim.

“[A]n action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter.’ [Citation omitted.] However, ‘restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason.’ [Citation omitted.] Thus, a party to an express contract can assert a claim for restitution based on unjust enrichment by ‘alleging in that cause of action that the express contract is void or was rescinded.’ [Citation omitted.] A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement. [Citation omitted.]” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.)

Here, the Cross-Complaint alleges the existence of a contract but does not allege that the contract is void or rescindable as part of the unjust enrichment cause of action. As such, Cross-Complainant cannot allege a cause of action for unjust enrichment. The demurrer is SUSTAINED with leave to amend.

4th cause of action for breach of contract.

Cross-Defendants demur to the breach of contract cause of action on the grounds Cross-Complaint alleges the contract was written but fails to attach a copy of the contract or allege the terms verbatim in the body of the complaint as required.

“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Id.)

Here, the Cross-Complaint alleges that the parties entered into a written contract in paragraph 8, but fails to attach a copy of the contract or set forth the terms “verbatim in the body of the complaint” as required. (See supra.) Accordingly, the demurrer is SUSTAINED, with leave to amend.

Moving Party shall give notice.