Plaintiff/cross-defendants Kendal Place (“Place”) and RoadRunner Driving School (“RoadRunner”) (collectively, “Cross-Defendants”) demur to the cross-complaint (“Cross-Complaint”) filed by defendant/cross-complainant Caroline Matsche (“Matsche”).

This is an action for breach of contract and fraud. According to the allegations of the Cross-Complaint, Matsche commenced working for Place dba RoadRunner in January 2008. (Cross-Complaint, ¶ 5.) Place verbally agreed that she would compensate Matsche for her services by paying her monthly auto insurance bill and by allowing her to utilize the company credit cards. (Id.) Matsche additionally received cash payments for the fair value of her services over and above the monies received by way of check or credit card. (Id.) In November 2010, Matsche terminated her services with Place. (Id.)

Matsche alleges that on February 10, 2012, Place breached the aforementioned verbal agreement by filing a criminal complaint against her alleging that she embezzled money from RoadRunner. (Cross-Complaint, ¶ 6.) In order to avoid the threat of criminal prosecution, Matsche pled no contest to the criminal charges and was ordered to pay restitution to Place in the sum of $30,000. (Id.) Place allegedly additionally breached the verbal agreement with Matsche by filing a civil complaint, the underlying action, against her for embezzlement and conversion, among other things. (Id.)

On January 9, 2014, Matsche filed the Cross-Complaint. On February 4, 2014, Cross-Defendants filed the instant demurrer to the two causes of action asserted therein on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

Cross-Defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

Cross-Defendants first assert that Matsche cannot maintain her claims for breach of contract and fraud because those claims are time-barred based on the applicable limitations periods provided by Code of Civil Procedure sections 339 (action based on oral contract) and 338, subdivision (d) (fraud). Cross-Defendants assert that Matsche’s claims began to run at the conclusion of her employment with RoadRunner in November 2010. Because the agreement upon which the first cause of action is predicated involves Matsche’s compensation for services provided, Cross-Defendants argue, Matsche would have known whether or not she was compensated for those services at the conclusion of her employment in November 2010 or shortly thereafter, and thus her claims would have accrued at that time. The Cross-Complaint was filed over two years after Matsche’s employment with Cross-Defendants concluded.

The foregoing argument ignores Matsche’s allegations that the subject verbal agreement was not breached and the wrongdoing not realized (re: the fraud) until the commission of the acts which took place in February 2012 (filing of criminal complaint) and October 2013 (filing of civil complaint). Consequently, Cross-Defendants’ contention that Matsche’s claims are time-barred is not persuasive.

However, the Court finds that Cross-Defendants’ remaining arguments have merit and therefore that Matsche’s first and second causes of action are insufficiently pleaded. First of all, as they assert, Matsche has not sufficiently pleaded the element of Cross-Defendants’ breach of the oral agreement. Matsche pleads that Cross-Defendants breached the agreement by “filing a criminal complaint” against her in February 2012. However, the felony complaint filed against Matsche was not filed by Cross-Defendants but by the State of California. (Cross-Complaint, ¶ 6.) Further, it is not alleged that as terms of their agreement Place would refrain from reporting suspected criminal activity involving Matsche, prevent the state from filing a criminal action against her, or refrain from filing a civil action. According to Matsche’s allegations, the parties agreed that Matsche would be compensated for her work by way of RoadRunner paying her monthly auto insurance bill, by allowing her to utilize the company credit cards and by paying her cash for the fair value of her services. (Id. at ¶ 5.) Matsche does not allege that she did not receive all of the aforementioned compensation for the work expended during the duration of her employment with Cross-Defendants.

Second, Matsche has not sufficiently pleaded her fraud claim. The elements of fraud are (1) misrepresentation (false representation, concealment, or nondisclosure), (2) knowledge of falsity (or scienter), (3) intent to defraud, i.e., to induce reliance, (4) justifiable reliance, and (5) resulting damage. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-settled that fraud claims must be pleaded with particularity; this necessitates pleadings facts showing how, when, where, to whom and by what means the alleged misrepresentations were tendered. (Id. at 645.) The allegations of the second cause of action do not conform to the foregoing standard. Additionally, it is unclear how Cross-Defendants’ conduct qualifies as fraudulent. Matsche alleges that at the time Place made the compensation agreements with her she “had no intent to perform” them (Cross-Complaint at ¶ 9) but then further alleges that “prior to February 10, 2012, [Place] acted in conformity with the oral agreements that she had made with [Matsche]” (Cross-Complaint at ¶ 7). As with the breach of contract allegations, Matsche does not allege that she was not provided with the compensation promised by Place- she in fact alleges pleads the opposite.

Consequently, Cross-Defendants’ demurrer to the first and second cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.