Judge: Thomas D. Long, Case: 22STCV05295, Date: 2022-08-03 Tentative Ruling

Case Number: 22STCV05295    Hearing Date: August 3, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 27, 2022, Plaintiff TL Veterans Construction, Inc. filed a second amended complaint (“SAC”) against Defendants Eun Hee Song, Restoration Unlimited Group, Inc., JNH Roofing, Inc. (“JNH”), Sean Soon Wook Lee, and Jay Hahm, alleging (1) breach of contract, (2) express indemnify, (3) fraud: intentional misrepresentation, (4) negligent misrepresentation, (5) negligence, (6) intentional misrepresentation, (7) bad faith breach of contract, (8) negligence, and (9) contribution.

On July 6, 2022, Sean Soon Wook Lee (“Defendant”) filed a demurrer to the sixth and ninth causes of action.

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

A.        Requests for Judicial Notice

Defendant’s request for judicial notice of the Complaint, FAC, SAC, and Plaintiff’s verified discovery responses is granted.  (See Evid. Code, § 452, subd. (d); Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 [“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.”].)

Plaintiff’s request for judicial notice of Exhibit 1 (the application for replacing the qualifying individual to Defendant, produced by CSLB in response to a subpoena), Exhibit 5 (the application for original contractor license submitted by Defendant for Lee Builders, Inc., produced by CSLB in response to a subpoena), and Exhibit 6 (the application for original contractor license submitted by Defendant for SW Roofing, produced by CSLB in response to a subpoena) is denied.  Plaintiff cites no authority for taking judicial notice of applications submitted by others to the Contractors State License Board, and it is not clear that they are not reasonably subject to dispute and are capable of immediate and accurate determination.  (See Evid. Code, §§ 451, 452, 453, subd. (b).)

Plaintiff’s request for judicial notice of Exhibits 2, 3, and 4 (portions of Defendant’s verified responses to interrogatories, requests for admission, and requests for production) is granted.  (See Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.)

B.        Sixth Cause of Action – Intentional Misrepresentation

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.”  (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.)  Fraud must be pleaded with specificity.  (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

Defendant argues the SAC does not allege fraud with specificity.  (Demurrer at pp. 5-7.)  Defendant contends the SAC does not adequately allege that he made the representation, that Plaintiff justifiably relied on it, and that the misrepresentation was the proximate cause of Plaintiff’s harm.

In the sixth cause of action, Plaintiff alleges that all defendants falsely represented that Lee was the responsible managing officer of JNH.  (SAC ¶¶ 61-62.)  But he also alleges, “The subcontractor [JNH] further represented that Defendant LEE is the Responsible Managing Officer (‘RMO’”) for JNH, and that JNH was licensed through LEE as its RMO.”  (SAC ¶ 15; see id. at ¶ 13.)  Plaintiff further alleges, “At all times relevant, LEE knew that he was not legally the RMO of JNH, but that JNH was representing him as the RMO for JNH.”  (Id. at ¶ 15.)   Thus, Plaintiff is alleging that JNH is the party who made the representations to him, and there is no specific allegation of a misrepresentation made by Defendant.  To the extent that Plaintiff is alleging a conspiracy to defraud (see SAC ¶ 63), this also lacks specificity.

In opposition, Plaintiff identifies the misrepresentation as Defendant making “false statements to the CSLB that facilitated the false representations” by allowing JNH to use Defendant’s license number.  (Opposition at p. 3.)  This is not the representation alleged in the SAC, and even if it were, it is not a misrepresentation directed at Plaintiff.

Plaintiff also alleges that he “relied on the representation that LEE was the proper RMO of JNH” and “was harmed,” with the misrepresentations being the proximate cause of the harm.  (SAC ¶¶ 65-67.)  This lacks the required specificity.  To the extent Plaintiff alleges he relied on JNH being properly insured and was harmed by the lack of insurance (see, e.g., id. at ¶¶ 28(1), 39(1), 48(1), 57(1)), he still does not allege how he relied on any statement by Defendant.

The demurrer is sustained.

C.        Ninth Cause of Action – Contribution

“[E]quitable contribution is the right to recover from a co-obligor that shares liability with the party seeking contribution.”  (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1067; see Civ. Code, § 1432.)

Defendant argues that because Plaintiff does not properly state a cause of action against Defendant, then there is no basis for Defendant’s liability as a co-obligor for any tort action.  (Demurrer at p. 7.)  The ninth cause of action alleges that if the project owner, with whom Plaintiff entered into a construction contract, incurred any damages or injuries, those damages or injuries were caused by all defendants.  (SAC ¶ 84; see id. at ¶ 12.)  Defendant’s liability, if any, is based on the harm suffered by the project owner, not Plaintiff.  This proportional liability is not dependent upon the success of Plaintiff’s claim for intentional misrepresentation.

The demurrer is overruled.

D.        Conclusion

The demurrer is SUSTAINED IN PART and OVERRULED IN PART.

The demurrer to the sixth cause of action is sustained.  Because Plaintiff has not shown how he can remedy the deficiencies, no leave to amend is granted.

The demurrer to the ninth cause of action is overruled.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 3rd day of August 2022