Demurrer to the second amended complaint by defendant Cisco Webex, LLC

Defendant Cisco Webex, LLC’s (“Cisco”) request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].)

Cisco’s demurrer to the first cause of action for breach of oral contract is OVERRULED. After this Court’s order, plaintiff Lakshminarasimman Sankaran (“Sankaran”) abandoned the surety allegations and instead alleges a breach of an oral contract. The Court is not convinced with Cisco’s contention that paragraph 10 turns this claim back into a surety cause of action. The allegations in the second amended complaint (“SAC”) are not inconsistent with prior pleadings since Sankaran is attempting to plead that Cisco entered into a separate agreement with him independent of whether the placing company paid him. Put differently, the prior pleadings were trying to allege that Cisco acted as a surety to consulting fees the placing company owed, not that there was a separate oral contract with Cisco. Furthermore, Cisco’s argument that the oral contract is not supported by consideration is belied by allegations in the SAC. (See SAC, ¶ 9 [alleging that “CISCO made the promise to pay Plaintiff directly and received separate consideration for its promise: CISCO obtained the continuing, uninterrupted services from Plaintiff that Plaintiff would have ceased providing, but for CISCO making the promises of payment”].)

Cisco’s demurrer to the second cause of action for fraudulent misrepresentation is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Sankaran alleges that Cisco is liable “by way of its manager [Harry] Singh” (“Singh”) because of this manager’s purported promise to Sankaran. (SAC, ¶ 17.) Sankaran, however, does not allege that the Cisco employee who made the alleged promise had the authority to speak for Cisco. (See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to 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.”].) Moreover, Sankaran fails to allege that Singh did not intend to perform at the time he made the promise. (See SAC, ¶ 18 [alleging generally that: “At the time Defendants made these representations, they knew that they were false, as they did not intend to make good on the payments to Plaintiff. Defendants made these representations to induce Plaintiff to stay on and finish his work on the CISCO project, because if Plaintiff left for other employment opportunities, it would have cost CISCO time and money.”].) Additionally, Sankaran fails to allege any facts that his reliance on the purported promise was justifiable. (See id., ¶ 19 [alleging generally that: “Plaintiff reasonably relied on the representations made by his direct supervisor and by CISCO, and continued to perform his work without interruption, and in foregoing his right to pursue other employment opportunities.”]; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363 [providing that allegations that a plaintiff justifiably relied on a defendant’s misrepresentations are sufficient only where it was reasonable to accept defendant’s statements without independent inquiry or investigation].)

Cisco’s demurrer to the third cause of action for negligent misrepresentation is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Cisco argues that Sankaran alleges an intentional misrepresentation, which cannot give rise to a claim for negligent misrepresentation as a matter of law. This argument is well taken. As Sankaran presents in opposition, the purported misrepresentation in this instance is when Cisco “made unwarranted and untrue representations that Cisco would compensate [Sankaran] for his work.” (Opposition at p. 7:26-27, citing SAC, ¶ 22.) Although promissory fraud gives rise to a cause of action for intentional misrepresentation, it does not give rise to a cause of action for negligent misrepresentation for the obvious reason that a promise cannot be false in the absence of intent. (See Tarmann, supra, 2 Cal.App.4th at p. 159 [“[W]e decline to establish a new type of actionable deceit: the negligent false promise.”].)

Cisco’s demurrer to the fourth cause of action for promissory estoppel is OVERRULED. “The required elements for promissory estoppel in California are . . . (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Ass’n (1976) 60 Cal.App.3d 885, 890; see US Ecology, Inc. v. State of Cal. (2005) 129 Cal.App.4th 887, 901.) Sankaran alleges that his reliance was reasonable and foreseeable. (See SAC, ¶ 28 [alleging that Sankaran’s “reliance was reasonable and foreseeable because, among other things, Singh, who was Plaintiff’s direct supervisor at CISCO, made the promise directly to Plaintiff, and further signed off on Plaintiff’s timesheets in accordance with said promise. Plaintiff had no reason to believe that Singh or Cisco would not honor their promises.”].) Sankran also alleges he was injured by his reliance on the alleged oral promise. (Id., ¶ 30.) Finally, since Sankaran has abandoned the surety allegations, Cisco’s averment regarding suretyship is not well founded.