30-2014-00704695

1.DEMURRER TO COMPLAINT
2.MOTION TO STRIKE PORTIONS OF COMPLAINT

Motion to Strike

Pursuant to CCP §§ 435 and 436, a party may move for an order striking from a pleading “any irrelevant, false or improper matter.” Matter is considered “irrelevant” if it is not essential to the statement of the claim or defense or if it is neither pertinent to nor supported by an otherwise sufficient claim or defense. CCP §431.10(b) and (c). Matter is considered “false” if it is, on its face, contrary to fact or truth (as opposed to a sham). Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21. Ultimate conclusions of law can be stricken, but not if there are facts to support the allegations. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; in accord, Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 242. Critically, the motion is to be used sparingly, not as a line item veto. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.

The motion is actually a hybrid between a demurrer and summary adjudication, premised on the theory that Plaintiffs’ facts are not “good enough” to impose liability on Defendants. That is not the purpose of a motion to strike.

Motion denied.

Demurrer to Complaint

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452.

1st COA: Breach of Contract

Overruled.

Defendants contend that the cause of action is not adequately pled because “the damages were caused by the independent actions of other persons who improperly renovated the subject properties without relying on [Ininns’] plans.” Demurrer 8:16-17.

To adjudicate causation at the pleading stage, the defect would have be inescapable and incurable. Plaintiffs invite this Court’s attention to Complaint ¶47 which clearly, and precisely, lays out allegations of damages unique to Ininns.

4th COA: Negligence

Overruled.

Defendants also contend that the cause of action is not adequately pled because “the damages were caused by the independent actions of other persons who improperly renovated the subject properties without relying on [Ininns’] plans.” Demurrer 8:16-17.

To adjudicate causation at the pleading stage, the defect would have be inescapable and incurable. Plaintiffs invite this Court’s attention to Complaint ¶63 which clearly, and precisely, lays out allegations of damages unique to Ininns.

2nd COA: Fraud

Demurrer sustained, 15 days leave to amend.

To establish a claim for fraud, the Plaintiff must prove: (1) the defendant represented to the Plaintiff that an important fact was true; (2) that representation was false; (3) the Defendant knew that the representation was false when the Defendant made it, or the Defendant made the representation recklessly and without regard for its truth; (4) the Defendant intended that the Plaintiff rely on the representation; (5) the Plaintiff reasonably relied on the representation; (6) the Plaintiff was harmed; and, (7) the Plaintiff’s reliance on the Defendant’s representation was a substantial factor in causing that harm to the Plaintiff. Bowers v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1557; Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; Perias v. GMAC Mortgage, Inc. (2010) 187 Cal.App.4th 429, 434.

Fraud must be pleaded with specificity rather than with general or conclusory allegations. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were made. Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1261–1262. To state the claim against an entity, the Plaintiff must also include allegations regarding the speaker’s authority to bind the entity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.

Here, Defendants point out that there is no date (even a range) alleged as to when the representations were made, but that the renovations were allegedly to be completed no later than May of 2013. See Complaint ¶11. This conflicts with the dates set forth on the contracts (see Exhibits A-D) and the contention that the representations induced Plaintiffs to enter into the contracts in the first place (rather than induce them to stay with Ininns). To that extent, if the representations made by Ininns that the properties would be marketable by April were made in April, it was objectively unreasonable for Plaintiffs to rely on said representations. Perhaps this date anomaly can be cleaned up by Plaintiff but at present the factual averments, coupled with the facts contained in the attached exhibits, negate justifiable reliance.