Judge: Upinder S. Kalra, Case: 22STCV30787, Date: 2023-02-02 Tentative Ruling
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Case Number: 22STCV30787 Hearing Date: February 2, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: February
2, 2023
CASE NAME: Shunnu Jin v. Amy’s House, Inc., et al.
CASE NO.: 22STCV30787
DEMURRER
WITHOUT MOTION TO STRIKE
MOVING PARTY: Defendant Ben Park
RESPONDING PARTY(S): Plaintiff Shunnu Jin
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to all five causes of action of the complaint
TENTATIVE RULING:
1. Demurrer
is OVERRULED as to the 1st, 2nd, 3rd, and 4th
causes of action
2. Demurrer
is SUSTAINED, with leave to amend, as to the 5th cause of action
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On September 20, 2022, Plaintiff Shunnu Jin (“Plaintiff”)
filed a complaint against Defendants Amy’s House, Inc., dba L’Atiste, Ben Park,
and Amy Park (“Defendants.”) The complaint alleged five causes of action: (1)
Breach of a Written Agreement, (2) Goods Sold and Delivered, (3) Account
Stated, (4) Open Book Account, and (5) False Promises. The complaint alleges
that the parties entered into various purchase agreements for garment related
products. However, Defendants continuously failed to make payments, and has a
resulting balance due of $1,037,362.20.
On November 4, 2022, Defendant Amy’s House filed an Answer
and Cross-Complaint.
On November 4, 2022, Defendants Amy Park and Ben Park each
filed a Demurrer without a Motion to Strike. Plaintiff’s Opposition was filed
on January 18, 2023. Defendants’ Replies were filed on January 25, 2023.
On December 1, 2022, Cross-Defendant Jin filed an Answer.
LEGAL STANDARD
Demurrer
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. In a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. …. The only issue involved in a demurrer hearing is whether
the complaint, as it stands, unconnected with extraneous matters, states a
cause of action.” (Hahn 147
Cal.App.4th at 747.)
Meet and Confer:
Prior to filing a demurrer, the
demurring party is required to satisfy their meet and confer obligations
pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied
their meet and confer obligation by submitting a declaration pursuant to Code
of Civ. Proc. §430.41(a)(2) & (3). The Declaration of
Eric Kuzdenyi filed concurrently with the Demurrer indicates that the parties
exchanged various emails about the complaint but were unable to reach an
agreement.
ANALYSIS:
Defendant Ben Park demurs on the
grounds that all five causes of action fail to state sufficient facts to
support the causes of action and are uncertain.
Uncertainty:
“[D]emurrers for uncertainty are
disfavored, and are granted only if the pleading is so incomprehensible that a
defendant cannot reasonably respond.” (Morris
v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292 [293
Cal.Rptr.3d 417, 439, 78 Cal.App.5th 279, 292].
Defendant argues that the causes of
action are uncertain. However, the Court finds this argument unavailing. The
complaint alleges enough facts that it is not so incomprehensible as to make it
impossible to respond. The Court can glean from the complaint that this matter
involves a breach of contract based on alleged false promises. Thus, the
complaint is not uncertain.
Demurrer on the grounds that the
Complaint is uncertain is OVERRULED.
1.
Breach
of Written Agreement
Defendant argues that the first
cause of action for breach of written agreement fails because the complaint and
exhibits attached to it confirm that “Defendant L’Atiste is the contracting
party,” not Defendant Ben Park. (Demurrer 6: 28 – 7: 5.)
Plaintiff argues that the
Complaint sufficiently alleges that Defendants Ben and Amy Park were alter egos
of Defendant L’Atiste, whereby Defendants Park were using the assets of the
corporate entity for their own personal gain. (Opp. 7: 24 – 8: 11.)
The Court finds that the Complaint
sufficiently alleges alter ego liability. “To recover on an alter ego theory, a
plaintiff need not use the words “alter ego,” but must allege sufficient facts
to show a unity of interest and ownership, and an unjust result if the corporation
is treated as the sole actor. [citation omitted] An allegation that a person
owns all of the corporate stock and makes all of the management decisions is
insufficient to cause the court to disregard the corporate entity.” (Leek v. Cooper (2011) 194 Cal.App.4th
399, 415.) “The
two general requirements for alter ego liability are: “(1) that there be such
unity of interest and ownership that the separate personalities of the
corporation and the individual no longer exist and (2) that, if the acts are treated
as those of the corporation alone, an inequitable result will follow.” (Mesler v. Bragg Mgmt. Co. (1985) 39
Cal.3d 290, 300 (Mesler).)
Here, the complaint alleges that Defendant
Ben Park is the owner of L’Atiste, and run the day-to-day business, make
decisions regarding “purchasing, importing, selling the clothing products, and
making payments for the clothing products.” (Comp. ¶ 6.) Additionally, the
complaint alleges that Defendant Ben Park uses L’Atiste’s funds for personal
expenses, and that Defendant Ben Park “completely control, dominate, manage,
and operate the corporation Defendant L’Atiste, and intermingle the assets of
Defendant L’Atiste.” (Comp. ¶¶ 7-8.) The allegations in the complaint are
sufficient to establish a “unity of interest.” In Advanced Vendor, the Court of
Appeal provided examples of factors courts use to determine if an alter ego has
sufficiently been pleaded. These include, but are not limited to, “commingling
of funds and other assets, failure to segregate funds of the separate entities,
and the unauthorized diversion of corporate funds or assets to other than
corporate uses, and the treatment by an individual of the assets of the
corporation as his own…” (Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838.) As stated above, the
Complaint has sufficiently alleged some of the factors, like the comingling of
assets. Thus, Defendant’s argument about failing to plead the correct
contracting party fails.
Additionally, “to establish a cause of
action for breach of contract, the plaintiff must plead and prove (1) the
existence of the contract, (2) the plaintiff’s performance or excuse for
nonperformance, (3) the defendant’s breach, and (4) resulting damages to the
plaintiff. [Citation.]” (Maxwell
v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)
A review of
the Complaint indicates that the first cause of action has been sufficiently
pleaded. There was a contract: Defendant L’Atiste issues purchase orders to
Nalin, and Nalin manufactured and supplied the products to Defendant L’Atiste
and payment was 15 days from the date of delivery. (Comp. ¶¶ 18-19.) Plaintiff
supplied the products based on the purchase orders submitted by Defendants
(Comp. ¶¶ 21, 23, 28.) Defendants breached this contract when it failed to make
payments on time. (Comp. ¶¶ 24-28.) As a result of the breach, Plaintiff has
been damaged and an outstanding balance of $1,037,362.20 remains. (Comp. ¶ 28.)
The
Demurrer as to the First Cause of Action is OVERRULED.
2.
Second,
Third, and Fourth Causes of Action: Goods Sold and Delivered, Account Stated,
and Open Book Account
Defendant argues that the second,
third, and fourth causes of action fail because all are based entirely on the
allegations contained in the first cause of action. Thus, because the first
cause of action should be sustained, so should the second, third, and fourth.
Plaintiff argues that common
counts are not subject to demurrer “unless a prior non-common cause is clearly
based on deficient facts.” (Opp. 9: 8-9, citing to Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 792-793.) Thus, because
Plaintiff has sufficiently alleged a cause of action for breach of contract,
these causes of action are sufficient.
“The only essential allegations of a
common count are ‘(1) the statement of indebtedness in a certain sum, (2) the
consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’” (Farmers Insurance Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 (citing 4 Witkin, Cal. Procedure (3d ed. 1985)
Pleading, § 508, p. 543).). “To recover on a claim for the reasonable value of
services under a quantum meruit theory, a plaintiff must establish both that he
or she was acting pursuant to either an express or implied request for services
from the defendant and that the services rendered were intended to and did
benefit the defendant.” (Ochs
v.PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d
734],internal citation omitted.)
“The essential elements of an
account stated are: (1) previous transactions between the parties establishing
the relationship of debtor and creditor; (2) an agreement between the parties,
express or implied, on the amount due from the debtor to the creditor; (3) a
promise by the debtor, express or implied, to pay the amount due.” (Leighton v. Forster (2017) 8 Cal.App.5th
467, 491.)
The elements of an open book account cause
of action are: “1. That [plaintiff] and [defendant] had financial transactions ...
; [¶] 2. That [plaintiff] ... kept [an] account of the debits and credits
involved in the transactions; [¶] 3. That [defendant] owes [plaintiff] money on
the account; and [¶] 4. The amount of money that [defendant] owes [plaintiff].”
(State Compensation Insurance Fund v.
ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449.)
“The only essential allegations of a
common count are “(1) the statement of indebtedness in a certain sum, (2) the
consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchange v. Zerin (1997) 53
Cal.App.4th 445, 460.)
The second cause of action sufficiently
alleges a cause of action for goods sold and delivered. Plaintiff sold and
delivered goods to Defendants, and have yet to pay a total sum of
$1,037,362.20. (Comp. ¶ 30-32.)
The third cause of action for
account stated is sufficiently alleged. The complaint indicates that there were
previous transactions between the parties, (Comp. ¶¶ 18, 21-25,) the amount was
indicated in writing to Defendants that a balance of $1,037,362.20 remains, and
there are previous emails and correspondence whereby Defendant agreed to pay
the past balance. (Comp. ¶ 34-35, Exhibit C pg. 114.)
The fourth cause of action has been
sufficient alleged. The Complaint indicates that Defendants owe $1,037,362.20,
Plaintiff delivered the goods to Defendants, but has yet to be paid. (Comp. ¶¶
37-38.)
Demurrer as to the 2nd,
3rd, 4th causes of action is OVERRULED.
3. Fifth Cause of Action: False Promise
Defendant argues that this cause of action
fails for two reasons. First, the statute of frauds bars this cause of action
as the complaint alleges that Defendant Park was responsible for the debt of
Defendant L’Atiste, and such a claim – the guaranty of the debt of another – must
be in writing. Second, Plaintiff did not plead sufficient facts for promissory
fraud, as the complaint lacks the required specificity, such as what the representations
were, when they were made, who made them, what means, etc. (Demurrer 12:
17-28.)
Plaintiff argues that the Complaint is
sufficient because it states that Defendant Park promised to pay Plaintiff, but
intended “not to keep the promises but only to induce Plaintiff to continue to
supply the goods.” (Opp. 9: 25 – 10: 2, citing to Comp. ¶¶ 40-46.)
“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.) “Thus, in a promissory fraud action, to sufficiently alleges
defendant made a misrepresentation, the complaint must allege (1) the defendant
made a representation of intent to perform some future action, i.e., the
defendant made a promise, and (2) the defendant did not really have that intent
at the time that the promise was made, i.e., the promise was false.” (Id.).
“In California, fraud must be pled specifically; general and
conclusory allegations do not suffice…this particularity requirements
necessitates pleading facts which
show how, when, where, to whom, and by what means the representations were
tenders.” (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.)“[W]hen averments of fraud are made, the circumstances
constituting the alleged fraud must be specific enough to give defendants
notice of the particular misconduct so that they can defend against the charge
and not just deny that they have done anything wrong.” (Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003)
(internal quotations and citations omitted).
After a review of the compliant, the
Court finds that the Plaintiff did not sufficiently allege a cause of action
for promissory fraud. The complaint does not contain the required specificity.
There are no specific facts as to what specific representations were made, who
made them, to whom they were made, when they were made and where they were
made. As stated above, fraud requires specific facts. The allegations contained
in this complaint do not contain the specificity required for a fraud cause of
action. The complaint contains conclusory allegations of fraud.
Demurrer as to the Fifth Cause of
Action is SUSTAINED, with leave to amend.
Leave to Amend:
Leave to amend should
be liberally granted if there is a reasonable possibility an amendment could
cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
The Plaintiff has the
burden of demonstrating that leave to amend should be granted, and that the
defects can be cured by amendment. (“Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.” Goodman v. Kennedy (1976)
18 Cal.3d 335, 349.) It is likely that Plaintiff can amend the complaint to
allege more specific facts, as required for the fifth cause of action, rather
than conclusory allegations.
Leave to Amend is GRANTED.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer is OVERRULED, as to the 1st,
2nd, 3rd, and 4th causes of action.
Demurrer is SUSTAINED, with leave
to amend, as to the 5th cause of action.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February
2, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court
DEMURRER
WITHOUT MOTION TO STRIKE
MOVING PARTY: Defendant Amy Park
RESPONDING PARTY(S): Plaintiff Shunnu Jin
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to all five causes of action of the complaint
TENTATIVE RULING:
1. Demurrer
is OVERRULED as to the 1st, 2nd, 3rd, and 4th
causes of action
2. Demurrer
is SUSTAINED, with leave to amend, as to the 5th cause of action
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On September 20, 2022, Plaintiff Shunnu Jin (“Plaintiff”)
filed a complaint against Defendants Amy’s House, Inc., dba L’Atiste, Ben Park,
and Amy Park (“Defendants.”) The complaint alleged five causes of action: (1)
Breach of a Written Agreement, (2) Goods Sold and Delivered, (3) Account
Stated, (4) Open Book Account, and (5) False Promises. The complaint alleges
that the parties entered into various purchase agreements for garment related
products. However, Defendants continuously failed to make payments, and has a
resulting balance due of $1,037,362.20.
On November 4, 2022, Defendant Amy’s House filed an Answer
and Cross-Complaint.
On November 4, 2022, Defendants Amy Park and Ben Park each
filed a Demurrer without a Motion to Strike. Plaintiff’s Opposition was filed
on January 18, 2023. Defendants’ Replies were filed on January 25, 2023.
On December 1, 2022, Cross-Defendant Jin filed an Answer.
LEGAL STANDARD
Demurrer
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. In
a demurrer proceeding, the defects must be apparent on the face of the pleading
or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer
tests the pleadings alone and not the evidence or other extrinsic matters. ….
The only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action.” (Hahn 147 Cal.App.4th at 747.)
Meet and Confer:
Prior to filing a demurrer, the demurring
party is required to satisfy their meet and confer obligations pursuant to Code
of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and
confer obligation by submitting a declaration pursuant to Code of Civ. Proc.
§430.41(a)(2) & (3). The Declaration of Eric Kuzdenyi
filed concurrently with the Demurrer indicates that the parties exchanged
various emails about the complaint but were unable to reach an agreement.
ANALYSIS:
Defendant Amy Park demurs on the
grounds that all five causes of action fail to state sufficient facts to
support the causes of action and are uncertain.
Uncertainty:
“[D]emurrers for uncertainty are
disfavored, and are granted only if the pleading is so incomprehensible that a
defendant cannot reasonably respond.” (Morris
v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292 [293
Cal.Rptr.3d 417, 439, 78 Cal.App.5th 279, 292].
Defendant argues that the causes of
action are uncertain. However, the Court finds this argument unavailing. The
complaint alleges enough facts that it is not so incomprehensible as to make it
impossible to respond. The Court can glean from the complaint that this matter
involves a breach of contract based on alleged false promises. Thus, the
complaint is not uncertain.
Demurrer on the grounds that the
Complaint is uncertain is OVERRULED.
1.
Breach
of Written Agreement
Defendant argues that the first
cause of action for breach of written agreement fails because the complaint and
exhibits attached to it confirm that “Defendant L’Atiste is the contracting
party,” not Defendant Amy Park. (Demurrer 6: 28 – 7: 5.)
Plaintiff argues that the
Complaint sufficiently alleges that Defendants Ben and Amy Park were alter egos
of Defendant L’Atiste, whereby Defendants Park were using the assets of the
corporate entity for their own personal gain. (Opp. 7: 24 – 8: 11.)
The Court finds that the Complaint
sufficiently alleges alter ego liability. “To recover on an alter ego theory, a
plaintiff need not use the words “alter ego,” but must allege sufficient facts
to show a unity of interest and ownership, and an unjust result if the corporation
is treated as the sole actor. [citation omitted] An allegation that a person
owns all of the corporate stock and makes all of the management decisions is
insufficient to cause the court to disregard the corporate entity.” (Leek v. Cooper (2011) 194 Cal.App.4th
399, 415.) “The
two general requirements for alter ego liability are: “(1) that there be such
unity of interest and ownership that the separate personalities of the
corporation and the individual no longer exist and (2) that, if the acts are treated
as those of the corporation alone, an inequitable result will follow.” (Mesler v. Bragg Mgmt. Co. (1985) 39
Cal.3d 290, 300 (Mesler).)
Here, the complaint alleges that Defendant
Amy Park is the owner of L’Atiste, and run the day-to-day business, make
decisions regarding “purchasing, importing, selling the clothing products, and
making payments for the clothing products.” (Comp. ¶ 6.) Additionally, the
complaint alleges that Defendant Amy Park uses L’Atiste’s funds for personal
expenses, and that Defendant Amy Park “completely control, dominate, manage,
and operate the corporation Defendant L’Atiste, and intermingle the assets of
Defendant L’Atiste.” (Comp. ¶¶ 7-8.) The allegations in the complaint are
sufficient to establish a “unity of interest.” In Advanced Vendor, the Court of
Appeal provided examples of factors courts use to determine if an alter ego has
sufficiently been pleaded. These include, but are not limited to, “commingling
of funds and other assets, failure to segregate funds of the separate entities,
and the unauthorized diversion of corporate funds or assets to other than
corporate uses, and the treatment by an individual of the assets of the
corporation as his own…” (Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838.) As stated above, the
Complaint has sufficiently alleged some of the factors, like the comingling of
assets. Thus, Defendant’s argument about failing to plead the correct
contracting party fails.
Additionally, “to establish a cause of
action for breach of contract, the plaintiff must plead and prove (1) the
existence of the contract, (2) the plaintiff’s performance or excuse for
nonperformance, (3) the defendant’s breach, and (4) resulting damages to the
plaintiff. [Citation.]” (Maxwell
v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)
A review of
the Complaint indicates that the first cause of action has been sufficiently
pleaded. There was a contract: Defendant L’Atiste issues purchase orders to
Nalin, and Nalin manufactured and supplied the products to Defendant L’Atiste
and payment was 15 days from the date of delivery. (Comp. ¶¶ 18-19.) Plaintiff
supplied the products based on the purchase orders submitted by Defendants
(Comp. ¶¶ 21, 23, 28.) Defendants breached this contract when it failed to make
payments on time. (Comp. ¶¶ 24-28.) As a result of the breach, Plaintiff has
been damaged and an outstanding balance of $1,037,362.20 remains. (Comp. ¶ 28.)
The
Demurrer as to the First Cause of Action is OVERRULED.
2.
Second,
Third, and Fourth Causes of Action: Goods Sold and Delivered, Account Stated,
and Open Book Account
Defendant argues that the second,
third, and fourth causes of action fail because all are based entirely on the
allegations contained in the first cause of action. Thus, because the first
cause of action should be sustained, so should the second, third, and fourth.
Plaintiff argues that common
counts are not subject to demurrer “unless a prior non-common cause is clearly
based on deficient facts.” (Opp. 9: 8-9, citing to Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 792-793.) Thus, because
Plaintiff has sufficiently alleged a cause of action for breach of contract,
these causes of action are sufficient.
“The only essential allegations of a
common count are ‘(1) the statement of indebtedness in a certain sum, (2) the
consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’” (Farmers Insurance Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 (citing 4 Witkin, Cal. Procedure (3d ed. 1985)
Pleading, § 508, p. 543).). “To recover on a claim for the reasonable value of
services under a quantum meruit theory, a plaintiff must establish both that he
or she was acting pursuant to either an express or implied request for services
from the defendant and that the services rendered were intended to and did
benefit the defendant.” (Ochs
v.PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d
734],internal citation omitted.)
“The essential elements of an
account stated are: (1) previous transactions between the parties establishing
the relationship of debtor and creditor; (2) an agreement between the parties,
express or implied, on the amount due from the debtor to the creditor; (3) a
promise by the debtor, express or implied, to pay the amount due.” (Leighton v. Forster (2017) 8 Cal.App.5th
467, 491.)
The elements of an open book account cause
of action are: “1. That [plaintiff] and [defendant] had financial transactions
... ; [¶] 2. That [plaintiff] ... kept [an] account of the debits and credits
involved in the transactions; [¶] 3. That [defendant] owes [plaintiff] money on
the account; and [¶] 4. The amount of money that [defendant] owes [plaintiff].”
(State Compensation Insurance Fund v.
ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449.)
“The only essential allegations of a
common count are “(1) the statement of indebtedness in a certain sum, (2) the
consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchange v. Zerin (1997) 53
Cal.App.4th 445, 460.)
The second cause of action sufficiently
alleges a cause of action for goods sold and delivered. Plaintiff sold and
delivered goods to Defendants, and have yet to pay a total sum of
$1,037,362.20. (Comp. ¶ 30-32.)
The third cause of action for
account stated is sufficiently alleged. The complaint indicates that there were
previous transactions between the parties, (Comp. ¶¶ 18, 21-25,) the amount was
indicated in writing to Defendants that a balance of $1,037,362.20 remains, and
there are previous emails and correspondence whereby Defendant agreed to pay
the past balance. (Comp. ¶ 34-35, Exhibit C pg. 114.)
The fourth cause of action has been
sufficient alleged. The Complaint indicates that Defendants owe $1,037,362.20,
Plaintiff delivered the goods to Defendants, but has yet to be paid. (Comp. ¶¶
37-38.)
Demurrer as to the 2nd,
3rd, 4th causes of action is OVERRULED.
3. Fifth Cause of Action: False Promise
Defendant argues that this cause of action
fails for two reasons. First, the statute of frauds bars this cause of action
as the complaint alleges that Defendant Park was responsible for the debt of
Defendant L’Atiste, and such a claim – the guaranty of the debt of another –
must be in writing. Second, Plaintiff did not plead sufficient facts for
promissory fraud, as the complaint lacks the required specificity, such as what
the representations were, when they were made, who made them, what means, etc.
(Demurrer 12: 17-28.)
Plaintiff argues that the Complaint is
sufficient because it states that Defendant Park promised to pay Plaintiff, but
intended “not to keep the promises but only to induce Plaintiff to continue to
supply the goods.” (Opp. 9: 25 – 10: 2, citing to Comp. ¶¶ 40-46.)
“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.) “Thus, in a promissory fraud action, to sufficiently alleges
defendant made a misrepresentation, the complaint must allege (1) the defendant
made a representation of intent to perform some future action, i.e., the
defendant made a promise, and (2) the defendant did not really have that intent
at the time that the promise was made, i.e., the promise was false.” (Id.).
“In California, fraud must be pled specifically; general and
conclusory allegations do not suffice…this particularity requirements
necessitates pleading facts which
show how, when, where, to whom, and by what means the representations were
tenders.” (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.)“[W]hen averments of fraud are made, the circumstances
constituting the alleged fraud must be specific enough to give defendants
notice of the particular misconduct so that they can defend against the charge
and not just deny that they have done anything wrong.” (Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003)
(internal quotations and citations omitted).
After a review of the compliant, the
Court finds that the Plaintiff did not sufficiently allege a cause of action
for promissory fraud. The complaint does not contain the required specificity.
There are no specific facts as to what specific representations were made, who
made them, to whom they were made, when they were made and where they were
made. As stated above, fraud requires specific facts. The allegations contained
in this complaint do not contain the specificity required for a fraud cause of
action. The complaint contains conclusory allegations of fraud.
Demurrer as to the Fifth Cause of
Action is SUSTAINED, with leave to amend.
Leave to Amend:
Leave to amend should
be liberally granted if there is a reasonable possibility an amendment could
cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
The Plaintiff has the
burden of demonstrating that leave to amend should be granted, and that the
defects can be cured by amendment. (“Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.” Goodman v. Kennedy (1976)
18 Cal.3d 335, 349.) It is likely that Plaintiff can amend the complaint to
allege more specific facts, as required for the fifth cause of action, rather
than conclusory allegations.
Leave to Amend is GRANTED.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer is OVERRULED, as to the 1st,
2nd, 3rd, and 4th causes of action.
Demurrer is SUSTAINED, with leave
to amend, as to the 5th cause of action.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February
2, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court