2013-00151046-CU-NP

Angela Townzen vs. American Management Services

Nature of Proceeding:      Hearing on Demurrer to First Amended Complaint

Filed By:    Caplan, Benjamin L.

Defendants’ demurrer to the 7th cause of action in the first amended complaint is
OVERRULED, as follows.

Moving counsel is admonished because the notice of demurrer does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06.  Moving counsel
is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the
Court’s tentative ruling procedure and the manner to request a hearing.  If moving
counsel is unable to contact opposing counsel prior to hearing, moving counsel
is ordered to appear at the hearing in person or by telephone.

Plaintiffs’ counsel is admonished for failing to timely file the opposition and failing to
comply with CRC Rule 3.1110(b)(3)-(4).

This is an action by several tenants of an apartment complex in which the plaintiffs
allege a multitude of claims relating to allegedly defective/dangerous conditions at the
complex and the injuries allegedly caused thereby.

th
Defendants now demur only to the 7   cause of action for fraudulent
concealment/failure to disclose on the ground it is not alleged with the requisite
heightened specificity.  In particular, defendants argue that plaintiffs failed to identify
which of the defendants were aware of each of the allegedly defective condition, how
or when they became aware of these conditions or when the conditions first existed.
(Mov. Memo. P&A, p.4:4-6.)  Defendants also contend that California law requires the
pleading of facts which show how, when, where, to whom and by what means the
alleged misrepresentations were tendered and that when directed at a corporate
defendant, plaintiffs must also allege the names of the persons who made the alleged
misrepresentations as well as their authority to speak on behalf of the corporation. (Id.,
at p.4:22-p.5:2.)

Plaintiffs oppose, insisting that the complaint adequately pleads a concealment/failure
to disclose claim.

At the outset, the Court notes that defendants’ reliance on case law setting forth the
specificity requirement for pleading a misrepresentation claim is unavailing since the
sole cause of action at issue here is for concealment/failure to disclose, a theory of
fraud clearly distinct from intentional misrepresentation.

Regardless, while there is little question that this concealment claim could have been
pled with greater factual specificity, it is far from fatally defective since it includes facts
sufficient to establish each of the prima facie elements for concealment/failure to
disclose and since, in the view of this Court, it more than adequately apprises
defendants of the nature of the charge against them.  Defendants have cited no
authority which requires greater factual specificity in order to state a claim for
concealment/failure to disclose and to the extent defendants desire/need greater              details relating to the facts upon which this cause of action is based, they may pursue
appropriate discovery.

th
For these reasons, the demurrer to the 7   cause of action is overruled and the Court
need not, and does not, determine whether the complaint adequately pleads a
concealment/failure to disclose claim as to plaintiff Townzen in particular.

If not already done, defendants shall file and serve an answer to the first amended
complaint no later than 7/11/2014.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)