18-CIV-01355 COLLEEN KAY CUDD, ET AL. VS. TIFFANY LI, ET AL.

COLLEEN KAY CUDD TIFFANY LI
ALISON E CORDOVA JASON E. FELLNER

DEMURRER TO PLAINTIFFS’ FIFTH CAUSE OF ACTION FOR FRAUD – FALSE PROMISE OF PLAINTIFFS’ FIRST AMENDED COMPLAINT BY TIFFANY LI TENTATIVE RULING:

Defendant Li’s Demurrer to the Fifth Cause of Action is OVERRULED.

A. The Demurrer Is Timely.

Plaintiff argues that if the grounds for demurrer existed in the original Complaint, then Defendant was required to bring her Demurrer concurrently with her original Motion to Strike, citing Code Civ. Proc. Sect. 435(b)(3). (Opposing P&A at 4:7-10.) Section 435(b)(3) has nothing to do with the timing of a demurrer to an amended pleading. It merely provides that a plaintiff’s “motion to strike a demurrer” must be heard concurrently with the demurrer it is attacking. (Code of Civ. Proc. Sect. 435, subd. (b)(3).) Motions to strike and demurrers to the same pleading must be filed and heard simultaneously. (CRC Rule 3.1322.) If Defendant wanted to demur to the original Complaint, she was required to do so at the time she filed her Motion to Strike that addressed the original Complaint. The present Demurrer, however, is to the First Amended Complaint (FAC), not the original Complaint. The Demurrer is not untimely.

B. The Allegations of Fraud Are Sufficiently Specific.

The Demurrer argues that the Complaint fails to allege that Defendant did not intend, at the time the promise was made, to fulfill the promise. (See Moving P&A at 8:24-25.) The argument lacks merit.

Regarding Defendant’s intent, the FAC alleges that “Li promised to provide Keith with regular, unsupervised visitation beginning April 30, 2016. Li never performed “and never intended to perform” on this promise. (FAC para. 67.) The allegation is substantially identical to the allegation that was sufficient in Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061 (defendant “did not intend to perform this promise when it was made”).

The allegation that Defendant “never” intended to perform reasonably includes the moment when Li made the promise. “Never” means not ever, which includes the moment when Li allegedly made the promise. Therefore, the Complaint sufficiently alleges that Li, at the time she made the promise, did not intend to fulfill it.

Less specificity is required when pleading facts related to the defendant’s intent because those facts “lie more in the knowledge of the opposite party.” (Committee on Children’s Television v. General Foods Corp. (1983) 35 Cal.3d 197, 217.) The FAC sufficiently alleged facts to support the allegation for fraud – false promise.

C. Ruling

The Demurrer to the Fifth Cause of Action is overruled. Defendant shall file and serve an Answer no later than February 8, 2019 or 14 days after service of written notice of this ruling, whichever date is later.

D. Order.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.