JUSTIN SWINGLE v. EBAY, INC.
Case No.: 1-14-CV-261616
DATE: September 2, 2014
TIME: 9:00 a.m.
DEPT.: 3
As an initial matter the Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are denied. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the declaration of Plaintiff Justin Swingle.
Defendant’s Request for Judicial Notice (RJN) of six documents (exhibits A-F) is GRANTED pursuant to Evid. Code §452(d).
Defendant’s Demurrer to the entire Complaint on the ground that it is uncertain regarding the allegations against Defendant is OVERRULED. A demurrer asserted against an entire pleading can be sustained only if every claim alleged is subject to demurrer on the ground stated. Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so bad the responding party cannot reasonably respond. See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal App 4th 612, 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.”) Here, the Complaint’s caption indicates that Plaintiff alleges Fraud and Negligent Representation and “Contract Actions,” but the allegations are not organized into discrete, identified or numbered causes of actions. However, despite the vagueness of the Complaint’s allegations it is at least sufficiently clear that Plaintiff alleges that Defendant committed some type of fraud for Defendant to respond.
Defendant’s Demurrer to the entire Complaint on the ground that it is barred by the Settlement Agreement from the Los Angeles County small claims action (Ex. C to the RJN) is OVERRULED. “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810. “A release agreement is governed under general principles of contract law. Under those principles, parol evidence is only admissible if the contract terms are ambiguous.” Appelton v. Waessil (1994) 27 Cal App 4th 551, 554, internal citations omitted. “It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.” Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal. 2d 713, 724. The mutual release in the small claims settlement agreement is not ambiguous and states that it applies to all claims, known or unknown, “arising out of or in any way related to agreements, events, acts or conduct specific to case number BH 12S00193 filed in the Superior Court of California, Los Angeles—Hollywood Courthouse.” The Civ. Code §1542 waiver in the next paragraph of the agreement does not expand the scope of this language. Due in part to the very vagueness of the pleading Defendant has not shown that the allegations of the operative Complaint arise out of or are related to the specific acts or conduct in the Los Angeles County small claims action.
Defendant’s Demurrer to the entire Complaint on the ground of defect/nonjoinder of parties asserting that Steven Cornell is a necessary party is OVERRULED. With respect to defect/nonjoinder, a plaintiff is required to join as parties to the action any person whose interest is such that: 1) in his absence, complete relief cannot be accorded among those already parties to the action; or 2) any judgment rendered in his absence might either prejudice his ability to protect his interests in later litigation or might leave any of the parties before the court exposed to a risk of additional liability or inconsistent obligations. CCP §389(a). Again, largely due the vagueness of the allegations, it is not apparent from the face of the pleading or any material offered for judicial notice that Steven Cornell is an indispensable party. The mere possibility that Steven Cornell may be a joint tortfeasor is not enough to sustain a demurrer on this ground. See Countrywide Home Loans v. Sup. Ct. (1999) 69 Cal App 4th 785, 794 (joinder is required only when absentee’s nonjoinder precludes the court from rendering complete justice among those already joined). This ruling is without prejudice to Defendant’s ability to raise this issue as an affirmative defense and later file a motion to compel joinder under CCP §389 or file a cross-complaint if warranted.
Defendant’s demurrer to what it deems the 1st cause of action for fraud and the 2nd cause of action for negligent misrepresentation “to the extent that such causes of action are actually alleged,” Notice of Demurrer at 2:13-14, on the ground that they fail to state sufficient facts to support these claims against Defendant is SUSTAINED with 10 days’ leave to amend. As noted above while the Complaint’s caption suggests that Plaintiff alleges claims for fraud, negligent representation and “contract actions,” the allegations are not organized into separate causes of action. Cal. Rule of Court 2.112 states that: “Each separately stated cause of action, count, or defense must specifically state: (1) Its number (e.g., ‘first cause of action’); (2) Its nature (e.g., ‘for fraud’); (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).”
Fraud requires a) misrepresentation (false representation, concealment or nondisclosure); b) Knowledge of falsity; c) intent to defraud/induce reliance; d) justifiable reliance; and e) resulting damage. Philipson & Simon v. Gulsvig (2007) 154 Cal App 4th 347, 363. The elements of negligent misrepresentation are 1) a misrepresentation of a past or existing material fact, 2) made without reasonable ground for believing it to be true, 3) made with the intent to induce another’s reliance on the fact misrepresented, 4) justifiable reliance on the misrepresentation, and 5) resulting damage. Ragland v. U.S. Bank National Assn. (2012) 209 Cal App 4th 182, 196. See also CACI 1903. The law is well established that in order to state a cause of action for fraud, each of the elements must be pled with specificity. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217. The policy of liberal construction of pleading will not be invoked to sustain a fraud claim defective in any material respect against a demurrer. Willhelm v. Pray, Price, Williams & Russell (1986) 186 Cal App 3d 1324, 1332. The specificity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. A plaintiff’s burden in asserting a fraud claim against a corporate entity such as EBay is even greater. In such a case, the plaintiff must 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. Lazar v. Sup. Ct. (1996) 12 Cal 4th 632, 645.
The Complaint fails to state sufficient facts for either claim. It fails to identify any intentional or negligent misrepresentations by Defendant or anyone alleged to have authority to speak on its behalf, much less sufficiently plead the other elements of either Intentional Fraud or Negligent Misrepresentation. A mere recitation of the elements of Fraud with citations to general authority is not enough. Contrary to Plaintiff’s argument in opposition, the allegations are so general that it is not apparent from the Complaint that Defendant must necessarily possess full facts and the limited exception to the specific pleading requirement in such circumstances does not appear applicable. The exception does not apply where the defendant has no more apparent knowledge of the facts than does plaintiff. Allegations of misrepresentations by unidentified agents or employees of a large corporate defendant are insufficient where the defendant has no more reason than the plaintiff to know which of its employees allegedly made the statements in question. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal App 4th 153, 158.
Defendant’s Demurrer to what it deems the 3rd cause of action for Breach of Contract (“Contract Actions” in the Caption) on the ground that it fails to state sufficient facts as alleged against Defendant is SUSTAINED with 10 days’ leave to amend.
To properly state a breach of contact claim a plaintiff must allege :1) the existence of a (valid) contract; 2) Plaintiff’s performance or excuse for nonperformance; 3) Defendant’s breach, and; 4) damage to Plaintiff resulting from that breach. Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal. App. 4th 221, 228, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 138. The Complaint in its present form does not allege any breach of contract by Defendant. It does not even clearly allege the existence of a contract between Plaintiff and Defendant. The only commercial transaction alleged between Plaintiff and any identified person is Plaintiff’s purchase of allegedly counterfeit art from non-party Steven Cornell using EBay’s platform; there is no allegation of a direct purchase from EBay.
Defendant’s Motion to Strike the entire Complaint on the ground that Plaintiff failed to serve it with the Complaint within 60 days of filing as required by Rule of Court 3.110(b) is DENIED. Defendant has not demonstrated that it has suffered any prejudice from the late service.
Defendant’s Motion to Strike the phrase “punitive damages” from page 1, line 23 of the Complaint, strike the phrase “Plaintiff Prays for Punitive Damages” from page 11, line 18 and to strike the request for punitive damages stated from page 11, line 20 to page 12, line 10 is GRANTED with 10 days’ leave to amend. As the Complaint currently fails to properly state any cause of action against Defendant, there is no basis for punitive damages.
Defendant’s Motion to Strike page 12, line 12 of the Complaint (“This Plaintiff prays for punitive damages in the amount of $25,000.”) is GRANTED without leave to amend. As a matter of law no claim for punitive damages shall state the amount or amounts of damages sought. See Civ. Code §3295(e). Even if Plaintiff is able to amend to state a claim which could serve as a basis for a request for punitive damages, no specific amount may be stated.
Defendant’s Motion to Strike the Complaint’s Exhibit 1, apparently created by Plaintiff and containing excerpts from news articles from the New York Times and Associated Press that are several years old, on grounds of irrelevance, is GRANTED with 10 days’ leave to amend. Assuming Plaintiff has accurately represented the contents of the original news articles they have no apparent relevance to Plaintiff’s allegations. –
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