Judge Ronald F. Frank, Case Number: 24TRCV02086, Date: 2024-12-03 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV02086, Date: 2024-12-03 Tentative Ruling

Case Number: 24TRCV02086 Hearing Date: December 3, 2024 Dept: 8

Tentative Ruling

HEARING DATE: December 3, 2024

CASE NUMBER: 24TRCV02086

CASE NAME: Kamran Harsini, et al. v. The Hill Community Association, et al.

MOVING PARTY: Defendants, The Hill Community Association, Classic Property Management Company, Steve Waltzman, Michael Hagerthy, Hitochi Morimoto, and Cyndi Puerto

RESPONDING PARTY: Plaintiff, Kamran Harsini

TRIAL DATE: Not Set.

MOTION: (1) Demurrer to the Fraud Cause of Action

(2) Motion to Strike

Tentative Rulings: (1) SUSTAINED with leave to amend.

(2) MOOTED.

I. BACKGROUND

A. Factual

On June 21, 2024, Plaintiff, Kamran Harsini, trustee of the Masoumeh Ziaee Harsini Trust Dated April 27, 2004 (“Plaintiff”) filed a complaint against Defendants, The Hill Community Association, Classic Property Management, Inc., Steve Waltzman, Michael Hagerthy, Hitochi Morimoto, Cyndi Puerto, and DOES 1 through 100. On October 16, 2024, Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) Breach of Contract; (2) Breach of Fiduciary Duty; (3) Gross Negligence and Willful Misconduct; (4) Nuisance; (5) Infringement of Rights of Others; (6) Fraud; (7) Failure to Respond to Written Request for Records; (8) Failure to Maintain Common Areas; (9) Trespass; (10) Conspiracy; (11) Injunctive Relief; and (12) Attorneys Fee and Costs.

Now, Defendants, The Hill Community Association, Classic Property Management Company, Steve Waltzman, Michael Hagerthy, Hitochi Morimoto, and Cyndi Puerto (collectively, “Defendants”) file a demurrer and motion to strike portions of the FAC.

B. Procedural

On October 29, 2024, Defendants filed their demurrer and motion to strike. On November 18, 2024, Plaintiff filed opposition briefs. On November 22, 2024, Defendants filed a reply brief.

II. ANALYSIS

A. Demurrer

i. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[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.)

ii. Discussion

Defendants demur to Plaintiff’s FAC on the grounds that they argue Plaintiff’s FAC does not state sufficient facts to constitute a cause of action for Fraud against a corporation. There is no demurrer to the other 11 causes of action alleged in the FAC.

1. Meet and Confer Requirement

The declaration of Christopher J. Weber, Esq. (“Weber”), is offered in support of counsel’s compliance with Code of Civil Procedure section 430.41. Weber declares that on October 24, 2024, Sydney Preston, an attorney in Weber’s office, attempted to meet and confer telephonically with Plaintiff’s counsel who was not available for a telephone conversation (Weber Decl., ¶ 5.) Preston then sent a follow up email correspondence to satisfy the meet and confer requirement. (Weber Decl., ¶ 5, Exhibit B.) . a substantive meet and confer letter outlining the grounds in which AHM intended to file a demurrer and motion to strike. However, Defense counsel contends Plaintiff’s counsel did not respond. (Weber Decl., ¶ 6.)

Because Defendant’s counsel has provided evidence of the meet and confer efforts along with the fact that Plaintiff has not raised any meet and confer issues in the opposition, the court finds that Defendants’ meet and confer efforts are sufficient.

2. Fraud

Defendants argue that Plaintiff’s fraud claim fails because Plaintiff did not assert the requirement of 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. The elements of a cause of action for fraudulent concealment are: (1) concealment of a material fact; (2) by a defendant with a duty to disclose; (3) the defendant intended to defraud by failing to disclose; (4) plaintiff was unaware of the fact and would not have acted as it did had it known the fact; and (5) damages.” (Butler America, LLC v. Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136, 144.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false 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 Cal.App.4th 153, 157.)

Specifically, Defendants argue that even though the FAC states: “On 2/26/24, CLASSIC PROPERTY MANAGEMENT, by and through CYNDI PUERTO, affirmed an election of Board officers, but the certification was filed with the Secretary of State with a time stamp of 4:23pm, which was more than an hour prior to the posting time to start the meeting for the election (of 5:30pm) that same day” (FAC, ¶ 74), the FAC is devoid of any facts which establish Cindy Puerto was authorized to speak on behalf of Classic, other than that she was acting secretary of the HOA. Defendants posit that serving as acting secretary of an HOA does not confer that inherent authority to act on behalf of Classic without explicit permission.

In opposition, Plaintiff contends that this specificity is pled as Cindy Puerto is an agent for Classic, by whom she is still employed. Plaintiff’s argue that this demonstrates she was acting on behalf of Classic because she had no other legal connection to the HOA as a homeowner of the HOA or its Board.

Although Defendants’ demurrer presents an argument that is technically true, the court does not overlook the fact that Defendants have brought a demurrer for a relatively minor and readily correctible reason. While Plaintiff has not directly pleaded that Cindy Puerto had authority to act on behalf of Classic in her role as the secretary of the HOA, the court takes this opportunity to acknowledge that the rest of Plaintiff’s fraud allegations are sufficiently plead. As such, based on a technicality alone, the court sustains Defendants’ demurrer, but grants Plaintiff twenty (20) days leave to amend.

B. Motion to Strike

i. Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

ii. Discussion

The Court notes that because Defendants’ Motion to Strike Portions of the FAC, is inherently intertwined with the demurrer, the motion to strike is MOOTED by the sustaining of demurrer above.

III. CONCLUSION

For the foregoing reasons, Defendants’ demurrer is SUSTAINED with twenty (20) days leave to amend. Defendants’ motion to strike is MOOTED.

Defendants are ordered to give notice.