Judge: Stephen P. Pfahler, Case: 22CHCV00620, Date: 2023-01-18 Tentative Ruling

Case Number: 22CHCV00620    Hearing Date: January 18, 2023    Dept: F49

Dept. F-49

Date: 1-18-23

Case #22CHCV00620

Trial Date: Not Set

DEMURRER

MOVING PARTY:                Defendant, Sam Hattar dba Xtreme Autosports SCV, pro per

RESPONDING PARTY:       Unopposed/Plaintiff, Sherry Wright, pro per

RELIEF REQUESTED

Demurrer to the Complaint for Fraud

SUMMARY OF ACTION

Plaintiff Sherry Wright alleges taking her vehicle to Defendant Sam Hattar dba Xtreme Autosports SCV for certain repairs on an unspecified date. According to Plaintiff, no written estimate was furnished, and some or all of the alleged repairs were not performed. Defendant demanded payment of $5,500.

On June 2, 2021, Plaintiff, in pro per, filed a complaint for Fraud

RULING: Overruled.

Sam Hattar dba Xtreme Autosports SCV, pro per submits the subject demurer to the complaint for fraud on grounds of failure to submit a claim against these specific defendants and uncertainty. Defendant specifically challenges the lack of any alleged factual basis on grounds that the attached estimate shows all documented work and Plaintiff’s initials, thereby constituting an acceptance of the work. Plaintiff therefore could not have reasonably relied on any open- ended estimate. Defendant also challenges the lack of ruled and numbered pleading paper.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

The complaint includes a narrative statement and attached a judicial council fraud form. The court finds the lack of numbered pleading paper in no way prejudices Defendant from responding and the court can complete its review of the pleading.

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “‘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.” (Ibid.) “‘Active concealment or suppression of facts by a nonfiduciary “is the equivalent of a false representation, i.e., actual fraud.” [Citation.] (Citation).)’ A fraud claim based upon the suppression or concealment of a material fact must involve a defendant who had a legal duty to disclose the fact. (Civ.Code, § 1710, subd. (3) [a deceit includes “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact”]; Citation.)” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186.)

Plaintiff alleges both the completion of the estimate outside the presence of Plaintiff (after the placement of initials), and represented work not performed. Both allegations support claims for fraud. The court declines to consider any and all extrinsic inference and representation that the estimate was properly completed and accepted by Plaintiff, and that all work was completed by Defendant.

The demurrer is overruled. Defendant is ordered to answer within 10 days of this order.

The court sets an OSC re: Reclassification of the Action to Limited Jurisdiction Court. A limited jurisdiction case is one in which the amount in controversy does not exceed $25,000.00. (See Code Civ. Proc., § 85, subd. (a); Ytuarte v. Sup.Ct. (Kashani) (2005) 129 Cal.App.4th 266, 279.) The vehicle repair charges total $5,500, and Plaintiff otherwise only offers a conclusive statement regarding the propriety of jurisdiction in this unlimited department. The court therefore sets the OSC on the same date at the Case Management Conference on March 16, 2023. The parties may submit supplemental briefs of no more than five (5) pages nine (9) court days before the hearing—Friday March 3, 2023. Any brief is optional and not required, but the court will issue a written ruling regarding potential reclassification.

Defendant to give notice.