Case Number: BC684135 Hearing Date: March 06, 2018 Dept: 53

Terrance marsh VS. wheels financial group, llc, BC684135, march 6, 2018

[tentative] order re: Defendant wheels financial group, llc dba loanmart’s demurrer to complaint

Defendant WHEELS FINANCIAL GROUP, LLC DBA LOANMART’S Demurrer to Complaint is SUSTAINED WITH LEAVE TO AMEND.

background

Plaintiff Terrance Marsh (“Plaintiff”) filed a Complaint in pro per on November 20, 2017 against Defendant Wheels Financial Group, LLC dba LoanMart (“LoanMart”). The Complaint asserts causes of action for specific performance, “identity, fraud,” and “emotional distress.” The Complaint also attaches Judicial Council forms for a breach of contract cause of action and another fraud cause of action.

LoanMart demurs to the first cause of action (specific performance) on the grounds of failure to state facts sufficient to constitute a cause of action. LoanMart further demurs to the second cause of action and unnumbered fourth cause of action (fraud) and the unnumbered fifth cause of action (breach of contract) on the grounds that these causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. Plaintiff opposes.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., §430.10(f).)

The Court finds that the fraud causes of action and the unnumbered fifth cause of action for breach of contract are uncertain, as the allegations constituting these causes of action are unintelligible. The Court is unable to determine what conduct by Defendant supports these claims and how the facts alleged under these claims relate to such conduct. The Court also finds that these causes of action fail to state facts sufficient to constitute a cause of action.

To establish a fraud cause of action, Plaintiff must allege (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud or to induce reliance, (4) justifiable reliance, and (5) resulting damage. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) The fraud cause of action in the body of the Complaint is not pled with any particularity, and it is unclear what representations are at issue. Furthermore, the fraud cause of action pled on the attached Judicial Council form alleges that Defendant’s agent, Ulises Borrayo, “denied being in possession” of a vehicle and denied representing LoanMart during an appearance in small claims court. For one, this is insufficient to constitute a fraud cause of action because there is no allegation that any representation was made to Plaintiff such that it would induce Plaintiff to rely to his detriment. Moreover, as noted by LoanMart, to the extent the fraud cause of action is based on statements made in mediation or in court, the litigation privilege applies. (See Civ. Code, § 47; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 580 [“All communications, negotiations, or settlement discussions by and between participants in the course of a mediation . . . shall remain confidential.”].)

As for the breach of contract cause of action, there are no facts alleging what contract is at issue, how LoanMart breached the contract, Plaintiff’s performance, and what damages Plaintiff suffered as a result. A loan agreement between LoanMart and Plaintiff is attached to the Complaint, but the facts alleged are unintelligible and fail to state a claim for breach of contract. Therefore, the demurrer to the fraud and breach of contract causes of action are sustained.

LoanMart also demurs to the specific performance cause of action because Plaintiff failed to pled inadequacy of a legal remedy. (See Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.) The Court agrees. The Court further finds that none of the other elements of a specific performance claim (sufficiently definite terms of a contract; adequate consideration; substantial similarity of requested performance to the terms; mutuality of remedies) have been adequately pled. It is entirely unclear what contract performance Plaintiff is seeking by this cause of action, and for that reason, the demurrer is sustained.

CONCLUSION

For the foregoing reasons, LoanMart’s demurrer to the fraud causes of action, breach of contract cause of action, and specific performance cause of action are SUSTAINED WITH LEAVE TO AMEND.

LoanMart is ordered to provide notice of this ruling.

DATED: March 6, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court