Judge: Upinder S. Kalra, Case: 23STCV08505, Date: 2025-01-07 Tentative Ruling
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Case Number: 23STCV08505 Hearing Date: January 7, 2025 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: January
7, 2025
CASE NAME: Denise
McMillan v. Louis Darwin Pizzo, et al.
CASE NO.: 23STCV08505
DEMURRER
TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE
MOVING PARTY: Defendant
Home Depot U.S.A., Inc.
RESPONDING PARTY(S): None as of December 31, 2024
REQUESTED RELIEF:
1. Demurrer
to the First, Second, Third, Sixth, Seventh, Eighth, Ninth, Eleventh, and
Twelfth causes of action;
2. Motion
to Strike portions of the FAC pertaining to punitive damages, injunctive
relief, and attorneys’ fees.
TENTATIVE RULING:
1. Demurrer
is SUSTAINED in its entirety with leave to amend;
2. Motion
to Strike is DENIED, without prejudice, as moot.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On April 17, 2023, Plaintiff Denise McMillan (Plaintiff)
filed a Complaint against Defendants Louis Darwin Pizzo and Home Depot USA,
Inc. (Defendants) with causes of action for: (1) Breach of Contract, (2) Fraud,
(3) Violations of the Unfair Business Practices Act, (4) Violations of the
California Consumer Legal Remedies Act CCP § 1750, (5) Strict Liability, (6)
Intentional Infliction of Emotional Distress, (7) Negligent Infliction of
Emotional Distress, (8) Negligence, (9) Negligence Per Se, (10) Financial Elder
Abuse, (11) Conversion, and (12) Civil Liability Pursuant to Penal Code §
496(c).
On August 7, 2024, Plaintiff filed a First Amended Complaint
(FAC) with the same causes of action.
According to the FAC, Plaintiff relied on Defendant Home
Depot’s contractor referral network to engage Defendant Pizzo as a contractor
to remodel her kitchen. Plaintiff further alleges that Defendant Pizzo was not
a licensed contractor, destroyed her kitchen, stole from her, and abandoned the
project. Plaintiff also alleges that Defendant Pizzo caused third parties to
harass her and damage other property in retaliation for reporting him to the
Contractor Licensing Board.
On September 10, 2024, Defendant Home Depot U.S.A., Inc.
erroneously sued as Home Depot USA, Inc. (Home Depot) filed the instant
Demurrer with Motion to Strike.
Oppositions were due on or before December 23, 2024. As of
December 31, 2024, the court has not received an opposition. However, the court
did receive an Ex Parte Application to continue the hearing in order for
Plaintiff to file an opposition.
LEGAL STANDARD:
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 meet and confer requirement also applies to
motions to strike. (CCP § 435.5.)¿Counsel details extensive meet and confer
efforts concerning the original Complaint and an additional letters and emails
pertaining to the FAC beginning on March 13, 2024. (Declaration of Jennifer
Ferrentino ¶¶ 6-17; Declaration of Gabrielle Szlachta-McGinn ¶¶ 4-8.) Plaintiff’s
counsel repeatedly did not respond. (Szlachta-McGinn Decl. ¶ 7.) Eventually,
plaintiff added two new paragraphs in the first amended complaint that did not address
the substantive flaws set forth in the original demurrer. (Szlachta-McGinn
Decl. ¶ 16.) Thereafter, Defense counsel again attempted to meet and confer
with Plaintiff’s counsel to no avail. (Szlachta-McGinn Decl. ¶ 17.) Thereafter,
Defense counsel proceeded to file essentially their original demurrer. Therefore, the meet and confer requirement were
met.
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.)¿¿
Motion to Strike
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. (CCP § 436(a).) The court may also
strike all or any part of any pleading not drawn or filed in conformity with
the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Id.¿§¿437.)¿“When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend.” (Vaccaro v. Kaiman¿(1998)
63 Cal.App.4th 761, 768.)¿¿¿
ANALYSIS:
Demurrer
Factual Inaccuracy
Home Depot contends the entire FAC is permeated by factually
inaccuracies. Plaintiff did not file an opposition. The court declines to
address this argument as improperly challenging truth of the alleged facts at
the demurrer stage.
First Cause of
Action – Breach of Contract
Home Depot contends this claim fails because Plaintiff
failed to sufficiently allege a contract with Home Depot. Plaintiff did not
file an opposition.
“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 written contract may be pleaded either by its terms
– set out verbatim in the complaint or a copy of the contract attached to the
complaint and incorporated therein by reference – or by its legal effect.
[Citation.] In order to plead a contract by its legal effect, plaintiff must
‘allege the substance of its relevant terms.’” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th
972, 993.)¿¿
Upon reviewing the FAC, Plaintiff insufficiently alleged a
claim for breach of contract. Notably, Plaintiff insufficiently alleged a
contract exists with Home Depot.
Accordingly, the court SUSTAINS the demurrer to the First
Cause of Action with leave to amend.
Second Cause of
Action – Fraud
Home Depot contends this claim fails because Plaintiff
failed to allege facts with heightened particularity against a corporate entity.
Plaintiff did not file an opposition.
“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.)¿¿
“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; Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469; Perlas v. GMAC Mort., LLC (2010) 187 Cal.App.4th 429, 434
[requiring plaintiffs who claim fraud against a corporation to allege the names
of the persons who made the misrepresentations, their authority to speak for
the corporation, to whom they spoke, what they said or wrote, and when it was
said or written.]) Fraud allegations need not be liberally construed, general
pleading of the legal conclusion of fraud is insufficient, and every element of
the cause of action for fraud must be alleged fully, factually and
specifically. (Wilhelm v. Pray, Price,
Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331.)¿
Upon reviewing the FAC, Plaintiff insufficiently alleged a
claim for fraud. Plaintiff did not allege facts supporting this claim.
Accordingly, the court SUSTAINS the demurrer to the
Second Cause of Action.
Third Cause of
Action – Violations of the Unfair Business Practices Act
Home Depot contends that this claim fails because Plaintiff failed
to allege which statute Home Depot violated or facts supporting violation. Home
Depot further contends Plaintiff failed to allege facts that they are likely to
deceive the public. Plaintiff did not file an opposition.
California Business and Professions Code section 17200
prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus.
& Prof. Code § 17200; see Clark v.
Superior Court (2010) 50 Cal.4th 605, 610.) A business practice is unfair
when it offends an established public policy or when the practice is immoral,
unethical, oppressive, unscrupulous, or substantially injurious to
consumers." (Community Assisting
Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4th 886, 894.)
A business practice is unlawful if it violates another law. (Berryman v. Merit Property Management, Inc.
(2007) 152 Cal.App.4th 1544, 1554.) A business practice is fraudulent if
“members of the public are likely to be deceived." (See Wang v. Massey Chevrolet (2002) 97 Cal. App. 4th 856, 871.) “A
plaintiff alleging unfair business practices . . . must state with reasonable
particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc.
(1993) 14 Cal.App.4th 612, 619.)¿
Upon reviewing the FAC, Plaintiff insufficiently alleged a
claim for Unfair Business Practices. Notably, the FAC does not allege injury to
the public or violation of a statute.
Accordingly, the court SUSTAINS the demurrer to the Third
Cause of Action.
Sixth Cause of
Action – Intentional Infliction of Emotional Distress
Home Depot contends that this claim fails because Plaintiff
failed to allege extreme and outrageous conduct. Plaintiff did not file an
opposition.
The elements of an intentional infliction of emotional
distress (IIED) cause of action are: (1) extreme and outrageous conduct by the
defendant; (2) intention to cause or reckless disregard of the probability of
causing emotional distress; (3) severe emotional suffering; and (4) actual and
proximate causation of the emotional distress.¿ (See¿Moncada¿v. West Coast Quartz Corp.¿(2013) 221 Cal.App.4th 768,
780.)¿ To satisfy the element of extreme and outrageous conduct,¿defendant’s
conduct “‘must be so extreme as to exceed all bounds of that usually tolerated
in a civilized society.’”¿ (Ibid.)
(internal citations omitted.)¿¿¿¿¿
¿
While there is no bright-line as to what constitutes
outrageous conduct and thus this involves a case-by-case analysis, courts can
determine whether conduct was sufficiently outrageous at the demurrer stage. (Cochran v. Cochran¿(1998) 65 Cal.App.4th
488, 494.)¿¿Recovery for emotional distress caused by injury to property is
permitted in IIED claims. (Ragland v.
U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203-04.) (internal
citations omitted.)
Upon reviewing the FAC, Plaintiff insufficiently alleged a
claim for IIED against Home Depot. Notably, there are no allegations of
“extreme and outrageous” conduct by Home Depot.
Accordingly, the court SUSTAINS the demurrer to the Sixth
Cause of Action.
Seventh Cause of
Action – Negligent Infliction of Emotional Distress
Home Depot contends that this claim fails because it is
duplicative of the negligence claim and failed to allege facts showing duty and
breach of that duty. Plaintiff did not file an opposition.
A claim for negligent infliction of emotional distress
(NIED) requires: (1) a legal duty to use due care (direct victim or bystander),
(2) breach of such legal duty, (3) damage or injury (serious emotional
distress), and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California,
Inc. (1993) 6 Cal.4th 124, 129.)
Upon reviewing the FAC, Plaintiff insufficiently alleged a
claim for NIED. Notably, Plaintiff failed to allege facts showing duty.
Accordingly, the court SUSTAINS the demurrer to the
Seventh Cause of Action.
Eighth Cause of
Action – Negligence
Home Depot contends that this claim fails because Plaintiff
failed to allege facts showing duty. Plaintiff did not file an opposition.
A claim for negligence requires: (1) a legal duty owed to
plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4)
damages. (County of Santa Clara v.
Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)
For the reasons articulated in the Seventh Cause of
Action, the court SUSTAINS the demurrer to the Eighth Cause of Action.
Ninth Cause of
Action – Negligence Per Se
Home Depot contends, as above, that Plaintiff failed to
allege facts showing duty and this claim is also not an independent cause of
action. Plaintiff did not file an opposition.
“The doctrine of negligence per se does not establish tort
liability. Rather, it merely codifies the rule that a presumption of
negligence arises from the violation of a statute which was enacted to protect
a class of persons of which the plaintiff is a member against the type of harm
that the plaintiff suffered as a result of the violation. [Citation]” (Quiroz v. Seventh Ave. Center (2006)
140¿Cal.App.4th 1256, 1285.) “Accordingly, to apply negligence per se is
not to state an independent cause of action. The doctrine does not
provide a private right of action for violation of a statute.
[Citation.] Instead, it operates to establish a presumption of negligence
for which the statute serves the subsidiary function of providing evidence of
an element of a preexisting common law cause of action.” (Ibid.)
For the reasons articulated in the Seventh Cause of
Action, the court SUSTAINS the demurrer to the Eighth Cause of Action.
Eleventh Cause of
Action – Conversion
Home Depot contends that Plaintiff failed to allege facts
showing the elements for conversion. Plaintiff did not file an opposition.
The elements for a claim of conversion are: “(1) the
plaintiff’s ownership or right to possession of the property; (2) the
defendant’s conversion by a wrongful act or disposition of property right; and
(3) damages.” (IIG Wireless, Inc. v. Yi
(2018) 22 Cal.App.5th 630, 650; Berry v.
Frazier (2023) 90 Cal.App.5th 1258, 1271.) The defendant must assert
dominion or control over the property, interfering in a way inconsistent with
the plaintiff’s rights. (Simonian v.
Patterson (1994) 27 Cal.App.4th 773, 781-782.) The only intent required is
the intent to do the act constituting the conversion. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395,
1405.)
Upon reviewing the FAC, Plaintiff failed to sufficiently
allege a claim for conversion. Notably, Plaintiff failed to allege facts
showing Home Depot’s wrongful act or disposition of property belonging to
Plaintiff.
Accordingly, the court SUSTAINS the demurrer to the
Eleventh Cause of Action.
Twelfth Cause of
Action – Civil Liability (Penal Code § 496(c))
Home Depot provides the same argument here as for the
Eleventh Cause of Action. Plaintiff did not file an opposition.
Penal Code § 496 concerns knowingly buying or receiving property
“that has been stolen or that has been obtained in any manner constituting
theft or extortion.” (Penal Code § 496(a)-(b).) Subdivision (c) of that section
allows “[a]ny person who has been injured by a violation of subdivision (a) or
(b)” to “bring an action for three times the amount of actual damages . . .
costs of suit, and reasonable attorney’s fees.” (Penal Code § 496(c).)
For the same reasons articulated for the Eleventh Cause
of Action, the court SUSTAINS the demurrer to the Twelfth Cause of Action.
Motion to Strike
Home Depot seeks to strike the following from the FAC:
1. Page
11, Line 3: “For punitive damages in an amount to be determined at trial.”
2. Page
11, Lines 4-6: “For an injunction prohibiting Defendants from continuing to
offer contracting services to the public until the Defendants have paid for
Plaintiff’s Repairs and otherwise complied with the demands in the CLRA
letter.”
3. Page
11, Line 7: “For costs and attorneys fees.”
In light of the above ruling on the demurrer, the Motion to
Strike is DENIED, without prejudice, as moot.
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). Here, Plaintiffs did not file an opposition and did not
request leave to amend. Nonetheless, there is a reasonable possibility that
Plaintiff can cure the defects identified above.
Accordingly, the court will GRANT leave to amend.
CONCLUSION:
For
the foregoing reasons, the court decides the pending motion as follows:
1. Demurrer
is SUSTAINED in its entirety with 20 days leave to amend;
2. Motion
to Strike is DENIED, without prejudice, as moot.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: January 7, 2025 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court