Judge Upinder S. Kalra, Case Number: 24STCV21399, Date: 2025-03-04 Tentative Ruling

1. Demurrer to the Fifth Cause of Action for failure to state sufficient facts to constitute a cause of action;

2. Motion to strike portions of the Complaint pertaining to attorney’s fees and punitive damages.

2. Motion to Strike is GRANTED as to the Prayer for Relief pertaining to attorney’s fees;

4. Motion to Strike is DENIED as to ¶¶ 62, 68, 74, and the prayer for punitive damages;

5. Plaintiff is GRANTED 21 days’ from notice of this ruling to file an amended complaint as to the Fifth Cause of Action only.

On August 22, 2024, Plaintiff Jessica Silver (Plaintiff) filed a Complaint against Defendant William Volkmann (Defendant) with nine causes of action for: (1) specific performance or damages upon breach of express contract; (2) constructive trust based on breach of express contract; (3) constructive trust based on breach of implied in fact contract; (4) declaratory relief; (5) damages for fraud and deceit; (6) assault; (7) battery; (8) intentional infliction of emotional distress; and (9) negligence.

According to the Complaint, Plaintiff and Defendant entered a romantic and intimate relationship in 2014 and have one minor daughter. Plaintiff further alleges that she and Defendant entered a contract dividing their labor and property during the relationship and how to divide property once the relationship ended. It did so by October 14, 2023 but Defendant has ceased requisite performance.

On October 23, 2024, Defendant filed the instant demurrer with motion to strike. On January 22, 2025, Plaintiff filed oppositions. On January 28, 2025, Defendant filed replies.

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.) Here, the parties exchanged two letters – one on September 16, 2024 and the other on September 25, 2024. (Tokar Decl. ¶ 2.) The court is not convinced this is sufficient meet and confer efforts. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer or to deny a motion to strike. (CCP § 430.41(a)(4); CCP § 435.5(4).)

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.)¿¿

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.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)¿

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.)¿¿

Defendant contends Plaintiff’s mere nonperformance allegations fail to sufficiently allege specific facts supporting a fraud claim or a promissory fraud claim.[1] Additionally, Defendant contends the economic loss rule bars Plaintiff’s fraud claim. Plaintiff argues she sufficiently stated circumstance evidence supporting a claim for promissory fraud and the economic loss rule does not apply to intentional conduct. Defendant repeats their arguments on reply concerning specificity. As to the economic loss rule, Defendant argues that there is no independent tortious conduct beyond the alleged contract breach.

The elements of promissory fraud are: (1) A promise made regarding a material fact; (2) The promisor’s lack of any intention of performing at the time of making the promise, based upon specific factual circumstances beyond contract breach or inferring a contemporaneous intent not to perform; (3) The promise was made with intent to deceive or to induce the party to whom it was made to enter into the agreement; (4) The party to whom it was made relied on the promise; (5) The party making the promise did not perform; and (6) The party to whom the promise was made was injured. (Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 338.)

“[I]n a promissory fraud action, to sufficiently allege[] 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.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) To sufficiently plead that the defendant made a promise, complaints must state facts as to how, when, where, to whom, and by what means representations were made. (Ibid.) Falsity of a promise is sufficiently pled with a general allegation that the promise was made without an intent to perform. (Ibid.)

Upon reviewing the Complaint, Plaintiff insufficiently stated a claim for promissory fraud. First, Plaintiff alleges that Defendant “represent[ed] that he would include her name on deeds and any other ownership documents based on their personal and intimate relationship.”[2] (Complaint ¶ 55.) Second, Plaintiff alleges that Defendant “never had any intention of honoring [that] representation” as well as the rest of the Agreement’s terms. (Ibid.) However, the “intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance. (Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 653 [internal citations omitted].) Plaintiff’s allegations indicate Defendant never put her on the deed for the Equitable Property. (See Complaint ¶ 20.) However, these actions are not enough circumstantial evidence from which a reasonable person would infer that Defendant did not intend to perform at the time the promise was made.[3]

2. ¶ 55, “VOLKMANN deliberately intended to deceive Plaintiff in order to obtain her funds with which the parties purchased and maintained the Equitable Property. VOLKMANN never had any intention of honoring the representation and Agreement. Plaintiff was justified in her reliance on VOLKMANN's representation that he would include her name on deeds and any other ownership documents based on their personal and intimate relationship. By reason of VOLKMANN's fraud and deceit which persuaded Plaintiff into acting to her detriment in reliance on promises which VOLKMANN never intended to keep, VOLKMANN acted with oppression and malice. As a legal consequence of the oppression and malice, VOLKMANN ought to suffer punitive and exemplary damages according to proof of his wealth.” (¶ 55, p. 14-15.)

3. ¶ 62, Defendant “acted with intent to cause injury. [Defendant’s] conduct was despicable and done with a willful and knowing disregard of the rights or safety of another and subjected Plaintiff to cruel and unjust hardship in knowing disregard of Plaintiff’s rights.”

4. ¶ 68, Defendant “acted with intent to cause injury. [Defendant’s] conduct was despicable and done with a willful and knowing disregard of the rights or safety of another and subjected Plaintiff to cruel and unjust hardship in knowing disregard of Plaintiff’s rights.”

5. ¶ 74, Defendant “acted with intent to cause injury. [Defendant’s] conduct was despicable and done with a willful and knowing disregard of the rights or safety of another and subjected Plaintiff to cruel and unjust hardship in knowing disregard of Plaintiff’s rights.”

6. Prayer, “For punitive and exemplary damages.” (Prayer, item 10, page 18.)

Defendant contends that the request for attorney’s fees is not supported by the alleged contract and not otherwise supported by statute. Plaintiff does not contest striking the Prayer for attorney’s fees.

Accordingly, the court GRANTS the motion to strike as to the prayer requesting attorney’s fees.

Defendant contends that the alleged conduct does not support a punitive damages claim. Plaintiff argues she plead Defendant’s acts of domestic violence which does warrant punitive damages as despicable conduct. Defendant replies that Plaintiff cannot generally plead domestic violence in a conclusory manner to obtain punitive damages.

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages.¿ (See¿Hilliard v. A.H. Robins Co.¿(1983) 148 Cal.App.3d 374, 391-92.)¿ In addition,¿punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”¿ (Civ. Code, § 3294(a).)¿ Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.) Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Ibid.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Ibid.) Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿(Ibid.)¿

First, in light of the above ruling, the request to strike paragraph 55 is moot. The court otherwise refrains from discussing promissory fraud.

As to the domestic violence allegations that impact paragraphs 62, 68, 74, and the prayer for punitive damages, Plaintiff sufficiently alleged facts supporting punitive damages.

Plaintiff alleges: “Throughout their relationship, VOLKMANN engaged in acts of domestic violence against Plaintiff, both physical and psychological, and exerted coercive control over Plaintiff, including manipulation, gaslighting, financial control, intimidation, violence, and threats.” (Complaint ¶ 15.) Plaintiff further alleges that as Defendant’s “abusive conduct towards Plaintiff continued . . . Plaintiff obtained a domestic violence restraining order” against him. (Complaint ¶ 16.) The relationship spanned from approximately 2014 to October 2023 – about 9 years. (Complaint ¶ 12.) Nine years of domestic violence is likely loathsome enough to be despised by ordinary society.

Accordingly, the court DENIES the motion to strike as to paragraphs 62, 68, 74, and the prayer for punitive damages.

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.)

Accordingly, the court GRANTS Plaintiff leave to amend as to the Fifth Cause of Action only.

2. Motion to Strike is GRANTED as to the Prayer for Relief pertaining to attorney’s fees;

4. Motion to Strike is DENIED as to ¶¶ 62, 68, 74, and the prayer for punitive damages;

5. Plaintiff is GRANTED 21 days’ from notice of this ruling to file an amended complaint as to the Fifth Cause of Action only.

[1] Defendant further contends that Plaintiff did not state a cause of action for fraudulent inducement.

[2] This is the only promise apparent to the court in the Complaint and referred to in the Fifth Cause of Action.

[3] The court declines to develop the economic loss rule argument here.