2012-00132555-CL-BC

Family Home Medical, Inc. vs. Aircom Mechanical, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Ng, Brittany Y.
Defendant Tom Conwell’s (Doe 1) Demurrer to Plaintiff’s First Amended Complaint is
SUSTAINED, with and without leave to amend.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

The Court notes that the Opposition papers were filed and served two Court days late,
but has considered the opposition as the moving party has fully addressed the merits
of the demurrer and the opposition in reply.

Plaintiff Family Home Medical, Inc.’s First Amended Complaint sets forth four causes
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of action: the 1 for Breach of the Warranty of Quiet Enjoyment – Violation of Civil
Code §19271, the 2nd for Breach of Contract, the 3rd for Violation of Bus. & Prof. Code

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§17200, et seq. and the 4 for Intentional Misrepresentation.

Tom Conwell was added by Amendment to the FAC as Doe 1 on Nov. 26, 2013.

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Demurrer to the 1 for Breach of the Warranty of Quiet Enjoyment – Violation of Civil
Code, sec. §19271 is SUSTAINED, without leave to amend.

Plaintiff concedes that Tom Conwell is not the landlord, thus does not oppose the
demurrer to this cause of action.

Demurrer to the 2nd for Breach of Contract is SUSTAINED, with leave to amend.

Defendant demurs on the grounds that the FAC is uncertain and fails to allege facts
sufficient to support each of the elements of breach of contract against Conwell.

In opposition, plaintiff asserts that Conwell is alleged to be the agent of AMI (FAC,
para. 14), and the contracts at issue are the Lease Agreement and the Letter of Intent,
which are attached to and incorporated into the FAC. (FAC, para. 11, Exh. A and para.
15, Exh. C)

Although the FAC alleges facts sufficient to state a cause of action for breach of
contract against AMI, its allegations are not expressly made against either Conwell or
Doe defendants. Plaintiff may have leave to amend.

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Demurrer to the 3 for Violation of Bus. & Prof. Code §17200, et seq. is SUSTAINED,
with leave to amend.

Defendant demurs on the grounds that the FAC is uncertain and fails to allege facts
sufficient to support each of the elements of unfair competition against Cornwell.

The Court concurs. Plaintiff may have leave to amend.

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Demurrer to the 4 for Intentional Misrepresentation is SUSTAINED, with leave to amend.

In California, fraud must be pled specifically; general and conclusory allegations do not
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suffice. Lazar v. Superior Court (1996) 12 Cal.4 631, 645. This particularity
requirement necessitates pleading facts which “show how, when, where, to whom, and
by what means” the representations were tendered. Stansfield v. Starkey (1990) 220
Cal. App. 3d 59, 73.

The allegations of the FAC are not sufficiently specific as to Conwell. The Court
concurs. Plaintiff may have leave to amend.

Plaintiff shall file and serve its Second Amended Complaint not later than Monday,
May 12, 2014. The responsive pleading shall be due filed and served 10 days later (15
days if service is by mail).

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.