17-CIV-02953 JOSE MORENO, et al. vs. ESTELA MORENO, et al.

JOSE MORENO RENE ALEJANDRO ORTEGA

ESTELA MORENO

5. OLIVER R. GUTIERREZ’S Demurrer TO SECOND AMENDED COMPLAINT

TENTATIVE RULING:

Defendants Estela Moreno and Robert Cummings and Plaintiffs Jose Moreno and Sylvia Moreno are reminded that they must comply with CRC Rule 3.1113(f) (“A memorandum that exceeds 10 pages must include a table of contents and a table of authorities.”)

Defendants’ demurrer is defective. “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (CRC Rule 3.1320(a); see also Code of Civ. Proc. sect 430.60 (“demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . . Unless it does so, it may be disregarded”).)

The demurrer of Defendant Cummings and Defendant Estela Moreno fails to meet this requirement. The demurrer merely states that Defendants “shall demurrer (sic) to …. the Second Amended Complaint Alleging Fraud, Fraudulent Concealment And Negligent Misrepresentation Against All Defendants.” It is unclear whether the demurrer is to “the entire complaint” or to the three named causes of action. In addition, the demurrer states no ground for demurrer. Plaintiffs do not object to the defect, so the Court deems the demurrer to be against only the first three causes of action.

The demurrer to the first, second, and third causes of action is sustained with leave to amend. The face of the pleading discloses that all claims are time-barred. The Complaint alleges that the causes of action accrued in 2011, more than three years before Plaintiffs filed this action. The Complaint alleges that Plaintiffs were ignorant that the representations to them were false. (SAC para. 21.) However, to plead delayed discovery in order to avoid a statute of limitations defense, Plaintiffs must also plead facts showing when and how they discovered their causes of action. (Samuels v. Mix (1999) 22 Cal.4th 1, 14.) The Complaint omits any facts showing that Plaintiffs discovered their causes of action within three years prior to filing the complaint.

The first cause of action meets the heightened specificity requirements for pleading fraud. (SAC paras. 15, 20, 21, 22, 24, 25.) Civil Code section 1714.10 does not apply, because the cause of action against Defendant attorneys is for fraud, not for civil conspiracy.

Defendant Cummings’s alternative demurrer to the third cause of action lacks merit. “A cause of action for negligent misrepresentation will also exist where information is given in a business or professional capacity for such a purpose.” (Friedman v. Merck & Co. (2003) 107 Cal. App. 4th 454, 481.) The complaint alleges that the misrepresentation (that the “arbitration judgment” was valid) occurred in the context of Defendant Cumming’s role as an attorney, or his “professional capacity.” This ruling is for information purposes only, since demurrer to the third cause of action is sustained on the statute of limitations ground set forth above.

Defendant Moreno’s demurrer to the third cause of action is sustained. The complaint contains no allegations that the misrepresentation from her was in a business or professional capacity.

Plaintiffs are granted leave of court to file and serve an amended complaint as to the first, second, and third causes of action only, no later than April 3, 2018.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

6. DEFENDANTS ESTELA MORENO AND ROBERT CUMMINGS’ motion to strike SECOND AMENDED COMPLAINT ALLEGING FRAUD, FRAUDULENT CONCEALMENT AND NEGLIGENT MISREPRESENTATION AGAINST ALL DEFENDANTS

TENTATIVE RULING:

Because demurrer to the first, second, and third causes of action is sustained, Defendants’ motion to strike those causes of action is off calendar as moot.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants 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.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

7. DEFENDANTS ESTELA MORENO AND ROBERT CUMMINGS’ DEMURRER to SECOND AMENDED COMPLAINT ALLEGING FRAUD, FRAUDULENT CONCEALMENT AND NEGLIGENT MISREPRESENTATION AGAINST ALL DEFENDANTS

TENTATIVE RULING:

This matter is ordered off calendar. Defendant Gutierrez has filed a Notice of Hearing and a Memorandum of Points and Authorities, but no Demurrer. Although Defendant has titled his document “Notice of Demurrer and Demurrer,” there is no demurrer contained within. (See CRC Rule 3.1320(a) (“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses”); Code of Civ. Proc. sect 430.60 (“demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . . Unless it does so, it may be disregarded”).)

Since no demurrer is on file, the Court cannot rule on the demurrer.

The Court notes that Defendant Gutierrez raises arguments identical to those in the demurrer by Defendants Moreno and Cummings, which is sustained with leave to amend. For that reason, Defendant Gutierrez need not file an Answer to the Second Amended Complaint unless Plaintiffs fail to file and serve a Third Amended Complaint by April 3, 2018.