17-CIV-01881 MARILYN DANIELS VS. ESTHER SIMONE ORENSTZAJN, ET AL.

MARILYN DANIELS SEAN P. RILEY ESTHER SIMONE ORENSTZAJN PATRICK O’BRIEN

1. MOTION FOR JUDGMENT ON THE PLEADINGS AS TO THE PLAINTIFF’S COMPLAINT BY ESTHER SIMONE ORENSTZAJN

 DENIED IN PART; GRANTED IN PART. Defendant ESTHER ORENSTZAJN’s Motion for Judgment on the Pleadings as to the Second (Negligence)and Third (Fraud) Causes of Action is DENIED IN PART and GRANTED IN PART as follows:

 This is a lawsuit by Plaintiff Marilyn Daniels, a homeowner in Belmont, California, against two of her adjacent backyard neighbors who have allegedly refused to share pro rata in the $52,300.00 cost of their common retaining wall and fence at the rear of Ms. Daniels’ property. (See Civil Code, Section 841.) One of those neighbors, Simone Orenstzajn, brings this Motion.

 As to the plaintiff’s Second Cause of Action for Negligence, the Motion is denied. In the Court’s opinion, and I so find, this claim is sufficiently stated.

 As to the plaintiff’s Third Cause of Action for Fraud, the Motion is granted With Leave To Amend.  The elements of fraud, which give rise to a tort action for deceit, are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage. Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268. A claim for fraud must be alleged with factual specificity. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.  Here, the Complaint groups all Defendants together and provides no specificity as to what was said or promised by Defendant ESTHER ORENSZTAJN, that she had knowledge of the falsity of her statements, that she had an intent to defraud, that Plaintiff justifiably relied on her statements and that Plaintiff suffered damages as a result.

 Defendant’s motion is DENIED WITHOUT PREJUDICE as to the punitive damages allegations, which are appropriately addressed by a Motion to Strike pursuant to Code Civ. Proc. §436. Defendant has leave to file such a motion to strike if she elects to do so.

 In that regard, the Court notes that in order to survive a motion to strike an allegation of punitive damages, if such motion is made, Plaintiff must plead the specific detailed ultimate facts, not conclusory allegations or generalities, establishing that she is entitled to the relief sought. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. In establishing a claim for punitive damages, Plaintiff must show by “clear and convincing” evidence that Defendant is guilty of oppression, fraud or malice. Civil Code §3294(a).