Judge: Robert B. Broadbelt, Case: 19STCV36611, Date: 2022-12-20 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV36611    Hearing Date: December 20, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Andrew P. Altholz

RESPONDING PARTY:       Plaintiff Jose Rubio

(1)   Demurrer to Second Amended Complaint

(2)   Motion to Strike Portions of Second Amended Complaint

The court considered the moving and opposition papers filed in connection with the demurrer and motion to strike.  No reply papers were filed.

BACKGROUND

Plaintiff Jose Rubio (“Plaintiff”) filed the operative Second Amended Complaint in this action against defendant Andrew Altholz on April 1, 2022, alleging four causes of action for (1) breach of contract, (2) fraud, (3) common count for money received, and (4) negligent misrepresentation.

Defendant Andrew P. Altholz (“Defendant”) moves the court for an order (1) sustaining the demurrer to each cause of action alleged by Plaintiff, and (2) striking from the Second Amended Complaint all four causes of action, various allegations in support of each cause of action, and Plaintiff’s prayers for attorney’s fees and punitive damages.

DEMURRER

The court overrules Defendant’s demurrer to Plaintiff’s first cause of action for breach of contract because it states facts sufficient to constitute a cause of action since (1) Plaintiff alleges that repayment of the loan has been demanded (SAC ¶ 13), and (2) the court already overruled Defendant’s demurrer to this cause of action on this ground in its March 17, 2022 order.  (Code Civ. Proc., § 430.10, subd. (e); March 17, 2022 Order, p. 2:9-13.)

The court sustains Defendant’s demurrer to Plaintiff’s second cause of action for fraud because it does not state facts sufficient to constitute a cause of action since Plaintiff fails to allege, with the requisite particularity, facts establishing either (1) a cause of action for intentional misrepresentation, since Plaintiff does not allege that Defendant made a false representation of fact that Defendant knew was false at the time it was made, or (2) a cause of action for false promise, since Plaintiff does not allege that Defendant did not intend to perform the promise at the time Defendant made the promise.  (Code Civ. Proc., § 430.10, subd. (e); West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792-793 [defendant’s knowledge that the representation was false at the time it was made is an element of fraud]; Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060 [promissory fraud requires a plaintiff to allege that the defendant did not intend to perform at the time the promise was made].)

The court overrules Defendant’s demurrer to Plaintiff’s third cause of action for common count for money received because it states facts sufficient to constitute a cause of action since (1) Plaintiff alleges that he demanded repayment of the loan (SAC ¶ 13); (2) the court has already overruled the demurrer to this cause of action; and (3) Plaintiff may plead this cause of action as an alternate theory of relief.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Defendant’s demurrer to Plaintiff’s fourth cause of action for negligent misrepresentation because it does not state facts sufficient to constitute a cause of action since Plaintiff does not allege that Defendant did not have reasonable grounds for believing the assertions of fact made by Defendant were true.  (Code Civ. Proc., § 430.10, subd. (e); SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 154 [“Negligent misrepresentation requires an assertion of fact, falsity of that assertion, and the tortfeasor’s lack of reasonable grounds for believing the assertion to be true”].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Plaintiff has not identified in what manner he can amend his pleading to render it sufficient as to the second and fourth causes of action.  The court therefore sustains the demurrer to those causes of action without leave to amend.

MOTION TO STRIKE

Defendant moves the court for an order striking from the Second Amended Complaint (1) all four causes of action; (2) paragraphs 1, 2, 5 through 14, 17, 18, 20, 22 through 33, 35 through 38, 41, 42, 45, 46 through 48, and 50 through 72; (3) Plaintiff’s prayer for attorney’s fees (Prayer B); and (4) Plaintiff’s prayer for punitive damages (Prayer E).

The court denies Defendant’s motion to strike all four causes of action alleged by Plaintiff in the Second Amended Complaint.

The court denies Defendant’s motion to strike paragraphs 1, 2, 5 through 14, 17, 45, and 46 through 48, because Defendant presents no argument establishing that the allegations are irrelevant, false, improper, or not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (Code Civ. Proc., § 436.)

The court denies as moot Defendant’s motion to strike paragraphs 18, 20, 22 through 33, 35 through 38, 41, 42, and 50 through 72, because the court has sustained the demurrer to Plaintiff’s second and fourth causes of action without leave to amend, and therefore the allegations made in support of those causes of action are removed from the complaint.

The court denies Defendant’s motion to strike Plaintiff’s prayer for attorney’s fees because Defendant presents no argument establishing that Plaintiff’s request for attorney’s fees is improper or not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (Code Civ. Proc., § 436.)

The court grants Defendant’s motion to strike Plaintiff’s prayer for punitive damages because the court has sustained the demurrer to Plaintiff’s second cause of action for fraud, which is the only cause of action that can support a request for punitive damages. 

ORDER

The court overrules defendant Andrew P. Altholz’s demurrer to plaintiff Jose Rubio’s first cause of action for breach of contract and third cause of action for common count for money received.

The court sustains defendant Andrew P. Altholz’s demurrer to plaintiff Jose Rubio’s second cause of action for fraud and fourth cause of action for negligent misrepresentation without leave to amend.

The court orders defendant Andrew P. Altholz to file an answer to plaintiff Jose Rubio’s Second Amended Complaint no later than 20 days from the date of this order.

The court orders defendant Andrew P. Altholz to give notice of this ruling.

DATED:  December 20, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court