Judge: Theodore R. Howard, Case: 22-1244256, Date: 2022-12-08 Tentative Ruling

Before the Court are three motions.

The Motion to Quash service of summons filed by GCRE/TX Frisco Master, LLC as to the First Amended Complaint filed by Plaintiff HKS Architects, Inc. based on lack of personal jurisdiction is GRANTED.

The Demurrer to the Sixth Cause of Action for Fraud in the First Amended Complaint filed by Defendants Joe Goveia, Goveia Commercial Real Estate, GCRE/TX Frisco Master, LLC is SUSTAINED with 20 days leave to amend.

The Motion to Strike filed by Defendants Joe Goveia, Goveia Commercial Real Estate, GCRE/TX Frisco Master, LLC as to portions of the First Amended Complaint is GRANTED in part and MOOT in part.

Motion to Quash

GCRE/TX moves to quash asserting that the Court lacks personal jurisdiction over Defendant.

CCP §418.10 states in pertinent part: (a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”

Although defendant is the moving party, the burden of proof is on the plaintiff and until such time as the plaintiff makes a prima facie showing of sufficient contacts with the State of California, the defendant may remain mute.  (Floveyor Internat., Ltd., v. Superior Court (1997) 59 Cal.App.4th 789, 794.)  “When a nonresident defendant challenges personal jurisdiction the burden shifts to the plaintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met.” (Ziller Electronics Lab GmbH v. Sup.Ct. (1988) 206 CA3d 1222, 1232-1233)  The plaintiff's burden “to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met ... must be met by competent evidence in affidavits and authenticated documentary evidence.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233–1234.)

GCRE/TX challenges the Court’s personal jurisdiction over it based on lack of minimum contacts.   The plaintiff has submitted only a written opposition with no supporting affidavits.  Plaintiff’s opposition is devoid of any evidence that GCRE/TX had any contacts with the State of California.  Accordingly, plaintiff has not met its burden.  The Motion to Quash service of summons is GRANTED.

Demurrer to Fraud Cause of Action

The elements of a fraud cause of action 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. [Citation.]” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, internal quotation marks omitted.)  “Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity. [Citation.] General and conclusory allegations are insufficient. [Citation.] The particularity requirement demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.]” (Cansino v. Bank of Am. (2014) 224 Cal.App.4th 1462, 1469.)  “The requirement of specificity in a fraud action against a corporation requires the plaintiff to 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.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 157.)

The First Amended Complaint alleges generally that “Defendants represented to Plaintiff that Defendants were possessed of sufficient funds to pay Plaintiff for Plaintiff’s services” but fails to plead the specific facts required under the law.  Accordingly, the Demurrer is SUSTAINED with 20 days leave to amend.

Motion to Strike

Defendants seek an order striking the following:   (1) Page 8, lines 14-16: “and Plaintiff is therefore entitled to punitive and exemplary damages against the above-named Defendants, and each of them, in the amount subject to proof at trial.”; (2) Page 9, line 13: “G. For punitive damages according to proof.”; (3) Page 9, line 14: “and reasonable attorneys’ fees.”

Defendants move to strike the request for attorney’s fees on the grounds that such are only allowed when provided for by statute or contract.  (CCP §1021)    Plaintiff did not oppose the motion.  Further, the Breach of Contract cause of action does not allege that the contract contains an attorney’s fee provision. 

Accordingly, the Motion to Strike is GRANTED as to Item 3 and MOOT as to Items 1 and 2, in light of the ruling on the Demurrer.

The Court orders moving party to give notice of this ruling.