Judge: Robert B. Broadbelt, Case: 20STCV30191, Date: 2022-10-27 Tentative Ruling

Case Number: 20STCV30191    Hearing Date: October 27, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant David Singer

RESPONDING PARTIES:    Plaintiffs Eva Johnson and David Johnson

Demurrer to Complaint

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

BACKGROUND

Plaintiffs Eva Johnson and David Johnson (“Plaintiffs”) filed this action against defendant David Singer (“Defendant”) on August 11, 2020, alleging two causes of action for (1) accounting, and (2) fraud requiring an accounting.

Defendant moves the court for an order sustaining his demurrer to the first and second causes of action without leave to amend.  The court notes that Defendant demurs to the second cause of action before addressing the first cause of action.  However, the court rules on the demurrer to Plaintiff’s causes of action in numerical order.

DEMURRER

The court overrules Defendant’s demurrer to Plaintiff’s first cause of action for an accounting on the ground of the bar of the statute of limitations because it does not “appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred” since (1) Plaintiff’s cause of action appears to be alleged as a general equity claim governed by the four-year statute of limitations in Code of Civil Procedure section 343, and (2) even if this cause of action is based on fraud, Plaintiffs have alleged that they did not discover the fraud until April 9, 2018, bringing it within the statute of limitations provided by section 338, subdivision (d).  (Code Civ. Proc., § 430.10, subd. (e); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

The court overrules Defendant’s demurrer to Plaintiff’s second cause of action for fraud requiring an accounting on the ground of the bar of the statute of limitations because it does not “appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred” since Plaintiffs allege that they discovered the fraud requiring an accounting on or about April 9, 2018 (Compl., ¶ 31) and filed their Complaint on August 11, 2020, within three years of their discovery as required by Code of Civil Procedure section 338, subdivision (d).  (Code Civ. Proc., § 430.10, subd. (e); Lockley, supra, 91 Cal.App.4th at p. 881.)

The court overrules Defendant’s demurrer to Plaintiff’s second cause of action for fraud requiring an accounting because it states facts sufficient to constitute a cause of action since Plaintiffs allege fraud with sufficient specificity, including the dates on which Defendant made the fraudulent representations to Plaintiffs, the content of those representations, their falsity, Defendant’s intent to defraud, and Plaintiffs’ reliance on Defendant’s statements (Compl., ¶¶ 8, 25-28, 30).  (Code Civ. Proc., § 430.10, subd. (e); see Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 242 [“courts should not … seek to absolve the defendant from liability on highly technical requirements of form in pleading.  Pleading facts in ordinary and concise language is as permissible in fraud cases as in any others”].)

The court overrules Defendant’s demurrer to Plaintiff’s second cause of action for fraud requiring an accounting on the ground that the Complaint does not state whether the parties’ contract was written, oral, or implied by conduct, since Plaintiff’s cause of action is not one “founded upon a contract” but is instead based on Defendant’s alleged fraudulent conduct.  (Code Civ. Proc., § 430.10, subd. (g).)

ORDER

            The court overrules defendant David Singer’s demurrer to plaintiffs Eva Johnson and David Johnson’s Complaint.  (Code Civ. Proc., § 430.10, subd. (e), (g).)

The court orders defendant David Singer to file an answer to the Complaint within 10 days of the date of this order.

The court orders plaintiffs Eva Johnson and David Johnson to give notice of this order.

IT IS SO ORDERED.

DATED:  October 27, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court