TITA CONCEPCION v. ROY C. DICKSON, ET AL.

Case No.:  1-14-CV-259432

DATE:  August 26, 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 Defendant Roy C. Dickson (“Defendant”), its attached exhibits, or arguments dependent upon such extrinsic evidence.

Defendant Dickson’s demurrer to the Complaint’s 2^nd cause of action for Negligent Misrepresentation, 3^rd cause of action for Fraud and 4^th cause of action for Violation of Bus. & Prof. Code §17200 on grounds of uncertainty is OVERRULED.  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 4^th 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 it is clear from Defendant’s other arguments that he sufficiently understands what each of these causes of action at least attempts to allege sufficiently to respond and there is no true uncertainty.

Defendant’s demurrer to the 2^nd cause of action for Negligent Misrepresentation on the grounds that it fails to state sufficient facts as alleged against him is SUSTAINED with 10 days’ leave to amend.

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 4^th 182, 196.  See also CACI 1903.  As presently pled the only mention of Defendant in the 2^nd cause of action (and the first mention of him in the entire Complaint) is at 20 where Plaintiff on information and belief alleges in general fashion that Defendant Dickson was “was working with, associated with or part of the NOAH Defendants.”  This fails to sufficiently state any of the elements of this claim against him.

Defendant’s demurrer to the 3^rd cause of action for Fraud on the ground that it fails to state sufficient facts as alleged against him is SUSTAINED with 10 days’ leave to amend.

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 4^th 347, 363.  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.  This 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 employer 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 4^th 632, 645.  Defendant Dickson is apparently being sued in this action not simply in his private capacity but also as part of Dickson & Associates, so the higher pleading standard for claims alleged against business entities appears applicable.  As presently pled this claim simply asserts (at 23) that Defendant, listed among several other defendants, “completely misrepresented what NOAH and/or they could or would do for the Plaintiff.”  Plaintiff then alleges that “They” told her various things which were not true.  This fails to state a claim for fraud against Defendant with sufficient particularity.

Defendant’s demurrer to the 4^th cause of action for violation of Bus. & Prof. Code §17200 on the ground that it fails to state sufficient facts as alleged against him is SUSTAINED with 10 days’ leave to amend.

“Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts.  The UCL covers a wide range of conduct.  It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.”  Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4^th 1134, 1143.  “By proscribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable.  In addition, practices may be deemed unfair or deceptive even if not proscribed by some other law. Thus, there are three varieties of unfair competition: practices which are unlawful, or unfair, or fraudulent.”  Blakemore v. Sup. Ct. (2005) 129 Cal.App.4^th 36, 48.

As alleged against Defendant the claim is entirely dependent on the allegations in the 2^nd and 3^rd causes of action incorporated by reference.  As neither of these causes of action presently states sufficient facts to support a claim against Defendant the 4^th cause of action fails to state sufficient facts against him as well.