According to the allegations of the complaint, plaintiff Mobileframe LLC (“Plaintiff”) entered into a written contract to provide software licenses and professional services on a time and materials basis to defendant Proctor Productions, Inc. (“Defendant”). (See complaint, ¶ 6.) Although the contract states that the estimate is based on either 36 or 60 hours, apparently, Plaintiff claims that it has provided an additional 10 hours of services beyond the estimated amount at a rate of $200/hour. (See complaint, ¶¶ 8-11.) Defendant refuses to pay the $2,000 pursuant to the contract. (See complaint, ¶¶ 12-14.) On November 12, 2013, Plaintiff filed the complaint against Defendant, asserting causes of action for: breach of contract; and, fraud. Defendant demurs to the fraud cause of action.

The fraud cause of action alleges that: the parties entered into a contract (see complaint, ¶ 16); Plaintiff reasonably relied on the terms of the contract (see complaint, ¶ 17), Jen Patterson claimed that it was a firm fixed price contract and refused to pay any additional fees as required pursuant to the contract (see complaint, ¶ 18); Defendant had no intention of abiding by the contract (see complaint, ¶ 19); and, Plaintiff was somehow damaged in the amount of $28,800 (see complaint, ¶ 20).

Here, there is no factual basis for the amount of the $28,800 of damages or any damages beyond that of the contractual damages of $2000. In opposition, Plaintiff retorts that “[i]n a cause of action for fraud, plaintiff may recover lost profits and other tort damages well in excess of the $2,000 unpaid labor expenses.” (Pl.’s opposition to demurrer, p.6:10-11.) However, the complaint is devoid of any facts supporting the recovery of lost profits or other tort damages and, in fact, does not even mention the term “lost profits.” (See Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1132 (stating that “lost anticipated profits cannot be recovered if it is uncertain whether any profit would have been derived at all from the proposed undertaking”; also stating that “lost profits based on a future contract cannot be recovered when the contract is uncertain or speculative”); see also Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 54 (stating that “a defrauded party may recoup his out-of-pocket losses and expenditures in reliance on the fraud, but he may not recover benefit-of-the-bargain damages (i.e., damages placing him in the economic position he would have occupied had the representation been true), at least where the recovery is not premised on a specific property actually acquired by the defrauded party”).) Accordingly, the second cause of action is insufficiently pled and the demurrer to the second cause of action is SUSTAINED with 10 days leave to amend. (See Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 638.)