Demurrer

Defendant’s demurrer to the 1st (fraudulent inducement) and 2nd (fraud) causes of action is overruled.

Discussion: “The following elements must be pleaded to state a cause of action for fraud: (1) a misrepresentation of a material fact; (2) knowledge of falsity; (3) intent to deceive and induce reliance; (4) justifiable reliance on the misrepresentation; and (5) resulting damages.” (Century Sur. Co. v. Crosby Ins., Inc. (2004) 124 Cal.App.4th 116, 122.) In addition, fraud must be pleaded with specificity. General and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were made. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

Defendant contends plaintiff has not adequately alleged damages. Plaintiff alleges that because he was induced to allow access to his property, he has suffered loss of enjoyment of use of his property, future expenses in hiring contractors to fix the property, and that his property has lost value. (6AC; ¶ 43) Plaintiff further alleges he lost use of his yard as the work done created a safety hazard. (6AC; ¶ 44) Defendant contends there is no causal nexus between the alleged damages and the misrepresentation alleged. Defendants are correct that a causal nexus is required (Service by Medallion, Inc. v. Clorox, Inc. (1996) 44 Cal.App.4th 1807, 1818-1819). However, the facts alleged are sufficient to plead causation. Plaintiff alleges that he relied on the misrepresentation by allowing defendants’ agent access to his property to perform the work which caused the alleged injury to the property. These facts adequately plead causation.

Defendants also argue plaintiff has not alleged facts showing that they are liable for the misrepresentations by Puente. The court previously found that the boilerplate allegations of agency/employment/conspiracy found at ¶ 13 was not adequate for fraud causes of action. However, plaintiff has added the allegation that defendants were a group which worked with each other to sell the property (¶ 21), that each of the defendants ratified and authorized the conduct of the other defendants, including defendant Puente (¶ 21), and that defendant Puente’s actions were done at the direction of defendants Reed (a principal of defendant Newhope) and Ramirez. (¶ 25) Plaintiff further alleges defendant Ramirez’s actions were authorized and ratified by defendant Vista. (¶ 28) Plaintiff alleges defendants had advance knowledge defendant Puente was making false representations that he was licensed as he had worked on numerous prior jobs for defendant. (¶32) And, plaintiff alleges the group knew and authorized defendant Reed to tell Puente to do whatever was necessary to get the gas line activated so the property could be sold. (¶ 32)

These allegations are sufficient to plead fraud against the moving party defendants and the demurrer to the fraud causes of action is thus overruled.

Motion to Strike

Defendants’ Motion to Strike is granted without leave to amend as to Request 3 (request for attorney’s fees). Defendants’ request to strike the claims for punitive damages (Requests 1-2 and 4-8) is granted without leave to amend as to defendant Vista Real Estate Corp. only. The request to strike the claims for punitives damages is denied as to the remaining moving party defendants.

Discussion: The requests for attorney’s fees in the 1st (fraudulent inducement) cause of action is stricken without leave to amend as plaintiff has not pleaded any basis for an award of fees in the pleading nor set forth a basis for an award of fees in the opposition to the motion.

As plaintiff’s have now pleaded fraud, the circumstances required for seeking punitives under CC 3294 (malice, oppression, or fraud) have been satisfied. In addition, malice is adequately alleged for the claims for punitives in the 3rd and 4th causes of action for trespass and nuisance.

Plaintiff has adequately alleged authorization and ratification (CC 3294(b)) by an officer, director, or managing agent as to the Newhope defendants as plaintiff has alleged defendant Reed actively participated in the alleged scheme and that he is an officer, director, or managing agent of Newhope. (6AC; ¶ 9)

However, authorization/ratification has not been adequately alleged as to defendant Vista Real Estate Corp. Plaintiff alleges that defendant Ramirez and defendant Vista Real Estate were the agents for the owners of the property adjacent to plaintiff’s. (6AC; ¶ 2) Plaintiff further alleges defendant Vista ratified the conduct of Ramirez. (¶ 28) But, plaintiff does not appear to have alleged that the conduct was authorized or ratified by an officer, director, or managing agent of Vista. [The court has not located any allegation that Ramirez is an officer, director, or managing agent.] Accordingly, the allegations are not sufficient to state a claim for punitive damages against defendant Vista.

As this is the Seventh pleading filed by plaintiff, the court will not grant leave to amend.

The court finally notes that its review of both the demurrer and the motion to strike was limited to the face of the pleading. (Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1309.) Thus, facts included by the parties in their briefs which were not also included in the Sixth Amended Complaint were not considered. In particular, the court has not considered the deposition excerpt attached to the opposition.