Case Name: Shann M. Brassfield v. Paul S.S. Elias, et al.
Case No.: 2015-1-CV-286106

Currently before the Court are the following matters: (1) the demurrer by defendant ASAP Appliance Service, Inc. (“ASAP”) to the first amended complaint (“FAC”) of plaintiff Shann M. Brassfield (“Brassfield”); and (2) the demurrer by defendant Andrew Napier (“Napier”) to Brassfield’s FAC.

Factual and Procedural Background

This action arises out of a remodel of Brassfield’s home and garage. In October 2010, Brassfield and defendant Paul S.S. Elias (“Elias”) entered into a written contract for the remodeling of Brassfield’s home. (FAC, ¶¶ 1 & 25.) The contract provided that Elias would add a basement and a new ground floor to the property, with construction scheduled to be completed by July 20, 2011. (Id. at ¶ 25.) Construction commenced on November 1, 2010 as contemplated by the parties, but was not completed by the July 20, 2011 deadline. (Id. at ¶ 30.) In spite of the delay, on October 12, 2012, Brassfield and Elias orally agreed that Elias would also remodel Brassfield’s garage once the other improvements were completed. (Id. at ¶ 31.)

Meanwhile, sometime in 2011, Brassfield observed a “gaping hole” in the basement floor slab where a hot-tub was to be installed. (FAC, ¶ 33.) Elias represented that the hole would be filled and waterproofed before additional work was performed over or on top of the hole. (Ibid.)

ASAP and Napier, the responsible managing officer of ASAP, allegedly “performed the rough plumbing associated with the hot-tub and are responsible, in whole or in part, for the creation of the crudely shaped ‘gaping hole’ in the concrete slab to modify the drain location and accommodate installation of the Jacuzzi-type tub.” (FAC, ¶¶ 8 & 34.) In addition, ASAP and Napier “participated in the installation of the tub over the gaping hole which they knew or should have known would create a water intrusion problem.” (Id. at ¶ 34.)

On December 1, 2012, months after work on the basement was completed, Brassfield discovered the basement had flooded as a result of a rainstorm. (FAC, ¶ 35.) Brassfield insisted that Elias remove the hot tub to determine the cause of the flooding. (Ibid.) After its removal, Brassfield observed that the same hole had not been filled and appeared to be the source of the flooding. (Id. at ¶ 36.) When confronted by Brassfield, Elias told Brassfield that he “had directed the subcontractor who built the basement to fill in the hole.” (Id. at ¶ 37.) The parties further discussed the matter and Elias agreed to fix the problem and repair the basement. (Id. at ¶ 38.)

As part of the repair efforts, Elias called the subcontractor who built the basement, defendant Oscar J. Vega, Jr., back to the jobsite to fill in, waterproof, and generally repair the hole in the floor slab. (FAC, ¶¶ 39 & 41.) While the repair work was being performed, Elias repeatedly assured Brassfield that the situation was being taken care of. (Ibid.)

A few weeks later and after repairs were purportedly made, the basement flooded for a second time. (FAC, ¶ 40.) After discussing the issue, Brassfield and Elias decided to hire Renaissance Stone Care and Waterproofing (“Renaissance”) to waterproof the basement. (Id. at ¶¶ 41-43.)

In March 2013, Renaissance completed its repair work in the basement, but the work on the house and garage as a whole remained incomplete. (FAC, ¶¶ 45-46.) By this time, Elias had stopped paying subcontractors, who, consequently, refused to complete the work. (Id. at ¶ 46.)

The entire remodel was eventually completed on February 10, 2014, over two and a half years behind schedule. (FAC, ¶ 48.) During the first significant rainstorm in the area after the construction was completed, the basement flooded for the third time. (Id. at ¶ 49.) To discover the cause of the flooding, Brassfield contacted Renaissance and asked it to inspect the basement. (Id. at ¶¶ 50-51.) During its inspection, Renaissance informed Brassfield that it never waterproofed the basement because Elias directed them not to waterproof the basement. (Id. at ¶ 51.) Thereafter, Brassfield discovered additional defective conditions in the property. (Id. at ¶¶ 52, 54-61, & 72.)

The contractor defendants, including ASAP and Napier, allegedly “discovered that the basement was constructed to different overall dimensions than the pre-existing structure.” (FAC, ¶¶ 20 & 62.) The contractor defendants proceeded with the work on Brassfield’s home “without consulting any design or engineering professional and either actively concealed the issue or knowingly allowed it to be concealed by subsequent work on the project.” (Id. at ¶ 62.) “[T]hroughout the improvement, remodel, and construction of [Brassfield’s home and garage], the [contractor defendants], knowingly and actively concealed, and instructed others to actively conceal, many serious defective and potentially dangerous conditions created by the [contractor defendants’] work performed at [Brassfield’s home].” (Id. at ¶ 68.)

Based on the foregoing allegations, Brassfield filed the operative FAC against ASAP and Napier on March 18, 2019, alleging causes of action for: (1) breach of implied warranty; (2) negligence; (3) fraud; (4) negligent misrepresentation; and (5) recovery of payments to an unlicensed contractor.

On May 3, 2019, ASAP and Napier filed their respective demurrers to the FAC. Plaintiff filed papers in opposition to the demurrers on June 5, 2019. On June 11, 2019, ASAP and Napier filed reply papers in support of their respective demurrers.

Discussion

I. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; see Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

II. ASAP’s Demurrer

ASAP demurs to the third cause of action of the FAC on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e) & (f).)

A. Timeliness of Demurrer

Preliminarily, Brassfield contends that ASAP’s demurrer is untimely because he purportedly served ASAP with the FAC on March 21, 2019, and ASAP did not file its demurrer until May 3, 2019.

Even assuming for the sake of argument that ASAP filed its demurrer late, the Court not only has the discretion to consider an untimely demurrer, but resolutions on the merits are favored. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280-282 (McAllister); see also Jackson v. Doe (2011) 69 Cal.App.3d 747, 753 (Jackson).) Here, Brassfield has not demonstrated that he suffered any prejudice as a result of the late filing of the demurrer. Consequently, the Court will exercise its discretion to overlook this purported procedural defect and consider the merits of the demurrer.

B. Uncertainty

ASAP demurs to the third cause of action for fraud on the ground of uncertainty.
“[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135 (Lickiss); Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury) [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].)
ASAP’s memorandum of points and authorities is devoid of any argument identifying a specific allegation in the FAC that ASAP contends is uncertain, ambiguous, and/or unintelligible. (See Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 [“failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty”] overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.) Furthermore, the arguments that are set forth in ASAP’s memorandum of points and authorities pertain to Brassfield’s purported failure to allege sufficient facts to state a claim for fraud. It appears that ASAP misunderstands the nature of uncertainty as a ground for demurrer. The law is settled that “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations already made.” (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.)

Accordingly, ASAP’s demurrer to the third cause of action on the ground of uncertainty is OVERRULED.

C. Failure to Allege Facts Sufficient to State a Claim

ASAP also demurs to the third cause of action for fraud on the ground of failure to allege facts sufficient to constitute a cause of action. ASAP points out that the third cause of action attempts to state a claim for fraudulent concealment. ASAP claims that Brassfield has not pleaded the elements of concealment of a material fact and intentional concealment with the intent to defraud with the requisite specificity.

“Concealment is a species of fraud or deceit. [Citations.] ‘[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ [Citations.]” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868 (Blickman); Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (Boschma).)

“Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 (Committee).) “The pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Commonwealth Mortgage Assurance Co. v. Super. Ct. (1989) 211 Cal.App.3d 508, 518 (Commonwealth).) This specificity requirement generally “necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645 (Lazar).) A plaintiff’s burden in asserting a claim against a corporate defendant is even greater as the plaintiff must generally “ ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Ibid.) Notably, “[t]his statement of the rule reveals that it is intended to apply to affirmative misrepresentations.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 (Alfaro).)

It is much more difficult to apply this rule in a case involving concealment or nondisclosure of material facts. (See Alfaro, supra, 171 Cal.App.4th at p. 1384; see also t
Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198-1200 (Jones).) As one court explained, “[h]ow does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Id. at p. 1384.) One of the purposes of the specificity requirement is to provide “notice to the defendant, to ‘furnish the defendant with certain definite charges which can be intelligently met.’ [Citations.].” (Committee, supra, 35 Cal.3d at p. 216.) However, when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy, even under strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party … .” (Id., at p. 217.)

Here, Brassfield alleges that, throughout the remodel project, ASAP “knowingly and actively concealed, and instructed others to actively conceal, many serious defective and potentially dangerous conditions created by the [contractor defendants’] work performed at [his home].” (FAC, ¶¶ 68 & 87.) For example, ASAP allegedly: installed a jacuzzi-style tub over the “gaping hole” despite knowing that “the hole seriously compromised the integrity and effectiveness of the basement concrete and integrated water-proofing,” which effectively concealed the condition from Brassfield; installed “tankless” water heaters “in such a matter that the hot water flowed into the piping for the cold water, and Vice-Versa,” and subsequently concealed “the defect by crossing the lines at the connections to various fixtures”; and installed “HVAC ducting in such a manner that created pinch points and otherwise restricted air flow in the outflow ducts and cold-air return which prevented the system from properly operating” and then concealed “these defects with other components of the home or allowing subsequent work to conceal these defects.” (Id. at ¶ 87.)

Brassfield further alleges that ASAP “intended all along to construct [his home] with construction deficiencies that would require future repair work, thus creating an opportunity for [ASAP] … to perform such repair work at [his] expense, or complete construction of [his home] without repairing the construction deficiencies to take [his] money or otherwise get paid under the guise of performing complete and competent work pursuant to the contract between [him] and [Elias] and the related subcontract(s) between [Elias] and [ASAP].” (FAC, ¶ 88.) ASAP allegedly intended Brassfield to rely on its “material omissions regarding the work that would be, and was performed, and did, actively conceal and cover up the true facts concerning the performance of the work which resulted in the existence of construction deficiencies in and around the basement and other parts of [Brassfield’s home] … so that [Elias], [ASAP], and each of them, would either have the opportunity to perform future work on [Brassfield’s home] to repair the deficiencies and resultant damage they purposefully created or be able to take [Brassfield’s] money or otherwise get paid under the guise of performing complete and competent work pursuant to the contract between [Brassfield] and [Elias] and the related subcontract(s) between [Elias] and [ASAP].” (Id. at ¶ 89.)

These allegations are sufficient, for pleading purposes, to show that ASAP concealed or suppressed a material fact and intentionally concealed or suppressed the fact with the intent to defraud Brassfield.

Accordingly, ASAP’s demurrer to the third cause of action on the ground of failure to allege sufficient facts to constitute a cause of action is OVERRULED.

III. Napier’s Demurrer

Napier demurs to the second, third, and fourth causes of action of the FAC on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e) & (f).) Napier further demurs to the second, third, and fourth causes of action of the FAC on the basis that those claims are time-barred by Code of Civil Procedure section 581a.

A. Timeliness of Demurrer

Preliminarily, Brassfield contends that Napier’s demurrer is untimely because he purportedly served Napier with the FAC on March 29, 2019, and Napier did not file his demurrer until May 3, 2019.

Even assuming for the sake of argument that Napier filed his demurrer late, the Court not only has the discretion to consider an untimely demurrer, but resolutions on the merits are favored. (See McAllister, supra, 147 Cal.App.4th at pp. 280-282; see also Jackson, supra, 69 Cal.App.3d at p. 753.) Here, Brassfield has not demonstrated that he suffered any prejudice as a result of the late filing of the demurrer. Consequently, the Court will exercise its discretion to overlook this purported procedural defect and consider the merits of the demurrer.

B. Code of Civil Procedure Section 581a

Napier demurs to the second, third, and fourth causes of action on the purported ground that he was not served with the summons and complaint within three years of the commencement of the action as required by Code of Civil Procedure section 581a.

As an initial matter, former Code of Civil Procedure section 581a was repealed and replaced by Code of Civil Procedure sections 583.210 through 583.250 in 1984. Thus, the legal authority Napier relies on is no longer valid.

Even if Napier had correctly cited Code of Civil Procedure sections 583.210 through 583.250, his demurrer based on those statutes would lack merit. Code of Civil Procedure section 430.10 sets forth the statutory grounds for demurrer. The purported ground identified by Napier—failure to serve the summons and complaint within three years of the commencement of the action—is not a statutory ground for demurrer set forth in Code of Civil Procedure section 430.10. (See generally Code Civ. Proc., § 430.10.) Instead, Code of Civil Procedure sections 583.210 through 583.250 provide that a defendant may bring a motion to dismiss the action when a plaintiff fails to serve the defendant with the summons and complaint within three years of the commencement of the action. Notably, Napier has not brought such a motion.

Accordingly, Napier’s demurrer to the second, third, and fourth causes of action on the basis of Code of Civil Procedure section 581a is OVERRULED.

C. Uncertainty

Napier also demurs to the second, third, and fourth causes of action on the ground of uncertainty, arguing that “[Brassfield’s] allegations concerning [his] active and/or direct participation in allegedly tortious conduct” are uncertain. (Mem. Ps. & As., pp. 1:26-28, 4:6-9, 6:16-21, & 8:8-10.)

“[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss, supra, 208 Cal.App.4th at p. 1135; Khoury, supra, 14 Cal.App.4th at p. 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].)

In the FAC, Brassfield not only alleges that Napier was the responsible managing officer of ASAP, but that Napier personally performed work on the remodel of his residence and garage. (FAC, ¶¶ 8 & 87.) Napier allegedly “performed the rough plumbing associated with the hot-tub and are responsible, in whole or in part, for the creation of the crudely shaped ‘gaping hole’ in the concrete slab to modify the drain location and accommodate installation of the Jacuzzi-type tub.” (Id. ¶ 34.) Additionally, Napier allegedly “participated in the installation of the tub over the gaping hole which they knew or should have known would create a water intrusion problem.” (Id. at ¶ 34.) Brassfield alleges that Napier negligently performed this work. (Id. at ¶¶ 81-85.)

Napier is also alleged to have fraudulent concealed various construction defects from Brassfield. (FAC, ¶ 87.) For example, Napier allegedly “participated in the re-routing of the hot and cold-water lines to conceal the defective installation of the water heater … .” (Ibid.)

Finally, Brassfield alleges that Napier negligently mispresented “that [Brassfield’s home and garage] was or would be constructed in accordance with the approved plans; was or would be constructed in strict compliance with all town, county, state and federal building, fire, health law codes, regulations and ordinances; was or would be constructed free from construction deficiencies and fit for ordinary residential purposes; and was or would incorporate non-defective products which products or materials would be installed in strict accord with all manufacturer recommendations and instructions.” (FAC, ¶ 95.)

These allegations are sufficient to put Napier on notice as to his alleged conduct that forms the basis of Brassfield’s causes of action, and the allegations are not so incomprehensible that Napier cannot reasonably respond.

Accordingly, Napier’s demurrer to the second, third, and fourth causes of action on the ground of uncertainty is OVERRULED.

D. Failure to Allege Fact Sufficient to State a Claim

1. Second Cause of Action

Napier demurs to the second cause of action for negligence on the ground of failure to allege facts sufficient to constitute a cause of action. Napier argues that he cannot be held liable because he is alleged to be the managing member of ASAP, all of his work on the project was as an employee of ASAP, and there are no allegations showing that he actively participated in the alleged wrongful conduct.

Napier’s argument is not well-taken. As explained above, Brassfield not only alleges that Napier was the responsible managing officer of ASAP, but that Napier personally performed work on the remodel of his residence and garage. (FAC, ¶¶ 8, 34, 81-85, & 87.) Furthermore, case law provides that a corporate officer can be held liable for negligence when the “circumstances involve a corporate officer’s personal tortious conduct, which conduct breached a duty of care to a third party and caused the third party to suffer physical damage to his property.” (Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 687 [the president and majority owner of a subcontracting company could held liable for his alleged negligence because he did not merely make a corporate policy decision which was carried out by someone else, but he personally participated in and directed the construction of the plaintiffs’ patio and driveway].)

Accordingly, Napier’s demurrer to the second cause of action on the ground of failure to allege sufficient facts to constitute a cause of action is OVERRULED.

2. Third Cause of Action

Napier also demurs to the third cause of action for fraud on the ground of failure to allege facts sufficient to constitute a cause of action. Napier claims that Brassfield has not pleaded the elements of concealment of a material fact and intentional concealment with the intent to defraud with the requisite specificity.

The third cause of action attempts to state a claim for fraudulent concealment against Napier. “Concealment is a species of fraud or deceit. [Citations.] ‘[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ [Citations.]” (Blickman, supra, 162 Cal.App.4th at p. 868; Boschma, supra, 198 Cal.App.4th at p. 248.)

“Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.” (Committee, supra, 35 Cal.3d at p. 216.) “The pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Commonwealth, supra, 211 Cal.App.3d at p. 518.) This specificity requirement generally “necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” (Lazar, supra, 12 Cal.4th at p. 645.) A plaintiff’s burden in asserting a claim against a corporate defendant is even greater as the plaintiff must generally “ ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Ibid.) Notably, “[t]his statement of the rule reveals that it is intended to apply to affirmative misrepresentations.” (Alfaro, supra, 171 Cal.App.4th at p. 1384.)

It is much more difficult to apply this rule in a case involving concealment or nondisclosure of material facts. (See Alfaro, supra, 171 Cal.App.4th at p. 1384; see also t
Jones, supra, 198 Cal.App.4th at pp. 1198-1200.) As one court explained, “[h]ow does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Id. at p. 1384.) One of the purposes of the specificity requirement is to provide “notice to the defendant, to ‘furnish the defendant with certain definite charges which can be intelligently met.’ [Citations.].” (Committee, supra, 35 Cal.3d at p. 216.) However, when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy, even under strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party … .” (Id., at p. 217.)

Here, Brassfield alleges that, throughout the remodel project, Napier “knowingly and actively concealed, and instructed others to actively conceal, many serious defective and potentially dangerous conditions created by the [contractor defendants’] work performed at [his home].” (FAC, ¶¶ 68 & 87.) For example, Napier allegedly “participated in the re-routing of the hot and cold-water lines to conceal the defective installation of the water heater … .” (Id. at ¶ 87.)

Brassfield further alleges that Napier “intended all along to construct [his home] with construction deficiencies that would require future repair work, thus creating an opportunity for [Napier] … to perform such repair work at [Brassfield’s] expense, or complete construction of [his home] without repairing the construction deficiencies to take [his] money or otherwise get paid under the guise of performing complete and competent work pursuant to the contract between [him] and [Elias] and the related subcontract(s) between [Elias] and [Napier].” (FAC, ¶ 88.) Napier allegedly intended Brassfield to rely on his “material omissions regarding the work that would be, and was performed, and did, actively conceal and cover up the true facts concerning the performance of the work which resulted in the existence of construction deficiencies in and around the basement and other parts of [Brassfield’s home] … so that [Elias], [Napier], and each of them, would either have the opportunity to perform future work on [Brassfield’s home] to repair the deficiencies and resultant damage they purposefully created or be able to take [Brassfield’s] money or otherwise get paid under the guise of performing complete and competent work pursuant to the contract between [Brassfield] and [Elias] and the related subcontract(s) between [Elias] and [Napier].” (Id. at ¶ 89.)

These allegations are sufficient, for pleading purposes, to show that Napier concealed or suppressed a material fact and intentionally concealed or suppressed the fact with the intent to defraud Brassfield.

Accordingly, Napier’s demurrer to the third cause of action on the ground of failure to allege sufficient facts to constitute a cause of action is OVERRULED.

3. Fourth Cause of Action

Napier demurs to the fourth cause of action for negligent misrepresentation on the ground of failure to allege facts sufficient to constitute a cause of action. Napier contends that the fourth cause of action lacks “any specific allegations as to conduct that could be imputed to [him] individually … .” (Mem. Ps. & As., p. 8:16-18.)

Napier’s argument is not well-taken. Brassfield alleges that Napier negligently mispresented “that [Brassfield’s home and garage] was or would be constructed in accordance with the approved plans; was or would be constructed in strict compliance with all town, county, state and federal building, fire, health law codes, regulations and ordinances; was or would be constructed free from construction deficiencies and fit for ordinary residential purposes; and was or would incorporate non-defective products which products or materials would be installed in strict accord with all manufacturer recommendations and instructions.” (FAC, ¶ 95.) There are no allegations in the FAC providing that Napier made this alleged misrepresentation on behalf of ASAP or solely in his capacity as a managing member of ASAP. Thus, the fourth cause of action contains allegations regarding conduct by Napier that can be imputed to him as an individual.

Accordingly, Napier’s demurrer to the fourth cause of action on the ground of failure to allege sufficient facts to constitute a cause of action is OVERRULED.