Case Name: Vlahopouliotis v. Garcia, et al.
Case No.: 1-14-CV-259333

Currently before the Court is the demurrer of defendant Armando Garcia to the complaint of plaintiff Bob Vlahopouliotis. Mr. Vlahopouliotis alleges that Mr. Garcia and Juana Garcia (collectively, “Defendants”) failed to make payments owing under a commercial lease. (Complaint, ¶¶ 7 and 10.)

The demurrer on the ground that Mr. Vlahopouliotis fails to allege the nature of the contract at issue (Code Civ. Proc., § 430.10, subd. (g)) is OVERRULED as to each of Mr. Vlahopouliotis’s causes of action. As acknowledged by Mr. Garcia, Mr. Vlahopouliotis alleges multiple times that the contract at issue is written. (Complaint, ¶¶ 7-8; Reply at p. 1 [“Plaintiff alleges breach of a written contract.”], emphasis original.)

The demurrer on the grounds of uncertainty and failure to state a claim to the first cause of action for breach of written contract and the second cause of action for breach of the covenant of good faith and fair dealing is OVERRULED.

Mr. Garcia somewhat inconsistently argues that a claim for breach of a written contract must set out the contractual terms verbatim or attach a copy of the contract itself, while allowing that a contract may also be pleaded by its legal effect. As he tacitly acknowledges, it is clear that “[i]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199), so the issue for the Court is whether Mr. Vlahopouliotis has adequately done so here.

Mr. Vlahopouliotis alleges that the lease agreement was breached when Defendants failed to pay $17,300 in rent and late charges (Complaint, ¶ 16) and sets forth the substance of the provisions relevant to these obligations (Complaint, ¶¶ 8 and 9 [rent in the amount of $2,800 per month due on the first of each month, with a late charge of $150 accruing on the fifth of the month]). While Mr. Garcia contends that these allegations comprise “legal conclusions,” he does not explain this argument, and the allegations describe specific terms of agreement rather than conclusions as to their effect. Further, there is no indication that terms material to Mr. Vlahopouliotis’s alleged obligations to pay rent and late fees have been omitted. Mr. Garcia points out that certain other provisions of the lease are merely referenced or alluded to: namely, its attorneys’ fee provision and possible mediation provision. (See Complaint, ¶¶ 12 and 13.) While evidence of these terms may be required to establish Mr. Vlahopouliotis’s right to certain relief in this lawsuit, Mr. Garcia does not contend that the terms relevant to his alleged breach are incompletely alleged. The first cause of action thus states a claim for breach of contract and is not uncertain. (See Hancock v. Clark (1922) 56 Cal.App. 277, 278 [although part of a contract omitted, complaint stated a claim where omitted portion of contract was unnecessary to ascertain the complete agreement between the parties]; see also Gilmore v. Lycoming Fire Ins. Co. (1880) 55 Cal. 123, 124 [complaint insufficient “a portion [of the contract] which may be material has been omitted”].)

Mr. Garcia addresses the second cause of action for breach of the implied covenant of good faith and fair dealing only with the argument he directs towards the first cause of action, and the demurrer to that claim is overruled for the same reasons discussed above.

The demurrer to the third cause of action for fraud is SUSTAINED with 10 days’ leave to amend on the ground that Mr. Vlahopouliotis fails to state a claim for fraud.

Mr. Vlahopouliotis alleges that “Defendants repeatedly presented to Plaintiff in negotiations, financing communications, and in the lease that Defendants would timely pay the rent” and also “made an express written promise in the written lease” that they would do so, but did not intend to perform on their promise at the time they entered the lease. (Complaint, ¶¶ 27, 29, and 31.) As urged by Mr. Garcia, these allegations are not pled with adequate specificity to state a claim for fraud, given that (even with respect to the lease) all the details of how, when, where, to whom, and by what means the representations were tendered are not alleged. (See Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14 [fraud and negligent misrepresentation must be pleaded with particularity and by facts that show how, when, where, to whom, and by what means the representations were tendered].)

However, Mr. Vlahopouliotis’s fraud claim is not barred merely because it arises from the same facts surrounding his claim for breach of contract (see Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 638 [“[a]n action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract”; in such cases, the plaintiff may have both tort and contract claims]), and the cases Mr. Garcia cites do not support this proposition (see Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515 [“[a]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty”; party to contract cannot be liable for conspiring to interfere with its own contract], italics added; Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31 [mere failure to perform is inadequate to prove fraudulent intent]). Thus, Mr. Vlahopouliotis is permitted leave to amend to allege the specifics of his claim for fraud.