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This case was last updated from Los Angeles County Superior Courts on 03/13/2021 at 01:10:44 (UTC).

ENRIQUE M MENDOZA VS BERTHA CASTILLO

Case Summary

On 09/12/2019 ENRIQUE M MENDOZA filed a Contract - Other Contract lawsuit against BERTHA CASTILLO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8396

  • Filing Date:

    09/12/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

MENDOZA ENRIQUE M

Defendant

CASTILLO BERTHA

Attorney/Law Firm Details

Plaintiff Attorney

ANDERSON LEIGHTON MORSE

Defendant Attorney

LEWIS JOHN

 

Court Documents

Summons - 1st Amended Summons

9/15/2020: Summons - 1st Amended Summons

Amended Complaint - 1st Amended Complaint

9/21/2020: Amended Complaint - 1st Amended Complaint

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

10/21/2020: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Opposition (name extension) - Opposition Plaintiff's Combined Opposition To Defendant's Demurrer and Motion To Strike 01-14-21

1/14/2021: Opposition (name extension) - Opposition Plaintiff's Combined Opposition To Defendant's Demurrer and Motion To Strike 01-14-21

Reply (name extension) - Reply to Opposition

1/26/2021: Reply (name extension) - Reply to Opposition

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

2/2/2021: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Notice of Ruling - Notice of Ruling

2/16/2021: Notice of Ruling - Notice of Ruling

Answer - Answer

2/16/2021: Answer - Answer

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

9/9/2020: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

3/24/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

1/24/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

11/27/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Notice (name extension) - Notice Of Motion and Motion to Strike

11/27/2019: Notice (name extension) - Notice Of Motion and Motion to Strike

Opposition (name extension) - Opposition Plaintiff's Combined Opposition To Defendant's Demurrer And Motion To Strike

1/15/2020: Opposition (name extension) - Opposition Plaintiff's Combined Opposition To Defendant's Demurrer And Motion To Strike

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/19/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Civil Case Cover Sheet - Civil Case Cover Sheet

9/12/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

9/12/2019: Complaint - Complaint

First Amended Standing Order - First Amended Standing Order

9/12/2019: First Amended Standing Order - First Amended Standing Order

15 More Documents Available

 

Docket Entries

  • 09/15/2022
  • Hearing09/15/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 08/24/2021
  • Hearing08/24/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/16/2021
  • DocketAnswer; Filed by: Bertha Castillo (Defendant)

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  • 02/16/2021
  • DocketNotice of Ruling; Filed by: Bertha Castillo (Defendant)

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  • 02/02/2021
  • DocketNon-Jury Trial scheduled for 08/24/2021 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 02/02/2021
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

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  • 02/02/2021
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 02/02/2021 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 02/02/2021; Result Type to Held - Motion Granted

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  • 02/02/2021
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 03/11/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 08/24/2021 08:30 AM

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  • 01/26/2021
  • DocketReply to Opposition; Filed by: Bertha Castillo (Defendant)

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  • 01/14/2021
  • DocketOpposition Plaintiff's Combined Opposition To Defendant's Demurrer and Motion To Strike 01-14-21; Filed by: Enrique M Mendoza (Plaintiff)

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20 More Docket Entries
  • 09/19/2019
  • DocketDeclaration re: Due Diligence; Filed by: Enrique M Mendoza (Plaintiff); As to: Bertha Castillo (Defendant)

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  • 09/19/2019
  • DocketProof of Service by Substituted Service; Filed by: Enrique M Mendoza (Plaintiff); As to: Bertha Castillo (Defendant); Proof of Mailing Date: 09/18/2019; Service Cost: 85.00; Service Cost Waived: No

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  • 09/12/2019
  • DocketNon-Jury Trial scheduled for 03/11/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/12/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/15/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/12/2019
  • DocketComplaint; Filed by: Enrique M Mendoza (Plaintiff); As to: Bertha Castillo (Defendant)

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  • 09/12/2019
  • DocketCivil Case Cover Sheet; Filed by: Enrique M Mendoza (Plaintiff); As to: Bertha Castillo (Defendant)

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  • 09/12/2019
  • DocketSummons on Complaint; Issued and Filed by: Enrique M Mendoza (Plaintiff); As to: Bertha Castillo (Defendant)

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  • 09/12/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/12/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 09/12/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC08396    Hearing Date: February 02, 2021    Dept: 26

Mendoza v. Castillo. et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Bertha Castillo’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE SECOND CAUSE OF ACTION FOR FRAUD.

Defendant Bertha Castillo’s Motion to Strike Portions of the First Amended Complaint is DENIED.

DEFENDANT IS ORDERED TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On September 12, 2019, Plaintiff Enrique M. Mendoza (“Plaintiff”) filed the Complaint in this action for (1) breach of contract; and (2) fraud against Defendant Bertha Castillo (“Defendant”). On September 9, 2020, the Court overruled Defendant’s demurrer to the first cause of action and sustained it with leave to amend as to the second cause of action.

Plaintiff filed the First Amended Complaint on September 21, 2020. Defendant filed the instant Demurrer and Motion to Strike the First Amended Complaint on October 21, 2020. Plaintiff filed a joint opposition on January 14, 2021 and Defendant filed a joint reply on January 26, 2021.

Demurrer

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Lewis Decl., Exhs. A-B.) Defendant demurs to the second cause of action for failure to allege sufficient facts to state a cause of action (Code Civ. Proc., § 430.10, subd. (e).

As in the Complaint, the second cause of action for fraud is based on three counts: intentional or negligent misrepresentation, concealment, and promise without intent to perform. Defendant demurs for lack of particularity in the pleading, which is required to state any cause of action for fraud. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) The heightened particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The First Amended Complaint alleges in the first cause of action for breach of contract that the parties orally negotiated the sale of the business on January 7, 2019. (FAC, ¶BC-1.) These negotiations included Defendant’s alleged promises that the business’ books and records would be provided, and that Defendant would assign employees to operate the business while Plaintiff was travelling in exchange for Plaintiff’s up-front payment. (Ibid.) These allegations are incorporated by reference in the fraud cause of action, which identically identifies Defendant’s allegedly unkept promise. (Id. at ¶¶FR-2, FR-3, FR-4, Attachment FR-4.) This is sufficient to allege when the representations were made (January 7, 2019), by whom (Defendant) and in what manner (as part of the parties’ oral agreement).

The Court also previously noted that it is not enough to generically allege Defendant made a promise to induce Plaintiff’s payment under the contract and that Defendant did not intend to keep that promise. Simply alleging an unkept but honest promise or mere subsequent failure of performance is not enough to state a cause of action for fraud. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29.) “[S]omething more than nonperformance is required to prove the defendant’s intent not to perform his promise.” (Ibid.) For example, the defendant’s intent not to perform may be shown by circumstantial evidence, such as a pattern of making representations that were never performed. (Id. at 30-31.)

Here, the First Amended Complaint includes additional facts from which the Court can infer that Defendant’s allegedly false representation about keeping the business operating was fraudulent. Specifically, Plaintiff alleges that Defendant was having cash flow problems and needed cash immediately. (FAC, Attachment FR-4.) In order to induce Plaintiff to pay for the business right away, Defendant concealed the cash flow problem and promised to keep the business running while Plaintiff was travelling. (Ibid.) Defendant was aware that she could not afford to keep the business running while Plaintiff was away and had no intention to do so because of her financial situation. (Ibid.) These allegations of Defendant’s financial difficulties, which must be taken as true, support circumstances from which the Court can infer she had no intention of following through on the promise to keep the business running while Defendant was away.

Therefore, the demurrer to the second cause of action for fraud is overruled.

Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) However, in a court of limited jurisdiction, motions to strike may only be brought on grounds that the allegations do not support the request for relief or damages. (Code Civ. Proc., § 92, subd. (c).)

Defendant moves to strike the allegations in support of the request for punitive damages in the Complaint. A request for punitive damages may be made pursuant to Cal. Civil Code 3294, which provides, as follows: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)

Here, the only basis for a punitive damages claim is the second cause of action for fraud. The Court having overruled the demurrer to the fraud cause of action finds the punitive damages allegations are also adequate.

The Motion to Strike Portions of the First Amended Complaint is denied.

Conclusion

Defendant Bertha Castillo’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE SECOND CAUSE OF ACTION FOR FRAUD.

Defendant Bertha Castillo’s Motion to Strike Portions of the First Amended Complaint is DENIED.

DEFENDANT IS ORDERED TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

Case Number: 19STLC08396    Hearing Date: September 09, 2020    Dept: 26

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Bertha Castillo’s Demurrer to the Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT AND SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION FOR FRAUD.

Defendant Bertha Castillo’s Motion to Strike Portions of the Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On September 12, 2019, Plaintiff Enrique M. Mendoza (“Plaintiff”) filed the Complaint in this action for (1) breach of contract; and (2) fraud against Defendant Bertha Castillo (“Defendant”). On November 27, 2019, Defendant filed the instant Demurrer and Motion to Strike the Complaint. Plaintiff filed a joint opposition on January 15, 2020 and Defendant filed a joint reply on January 21, 2020 (refiled on September 2, 2020).

Demurrer

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Lewis Decl., Exhs. A-B.) Defendant demurs to the first and second cause of action for failure to allege sufficient facts to state a cause of action (Code Civ. Proc., § 430.10, subd. (e)) and uncertainty ((Code Civ. Proc., § 430.10, subd. (f)). Special demurrers are not allowed in a court of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the demurrers for uncertainty.

First Cause of Action for Breach of Contract

In order to state a cause of action for breach of contract, Plaintiff must plead (1) the contract; (2) plaintiff’s performance or excuse for non-performance; (3) defendant’s breach; and (4) damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.)

A written contract can be pled by attaching a copy that is incorporated into the pleadings by reference or by alleging the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The Complaint alleges that the parties entered into a partly oral and partly written agreement whereby Defendant sold Plaintiff the business known as “iPhone repair” for $12,000.00. (Compl., BC-1.) Defendant also agreed to provide Plaintiff with books and records, and to assign employees to operate the business during Plaintiff’s planned travel, on condition that Plaintiff paid the contract price up front. (Ibid.) The parties reached this agreement on or around January 7, 2019 and Defendant breached the agreement on or around February 1, 2019 by failing to provide staff and keep the business open and running while plaintiff was away. (Id. at ¶BC-2.) Contrary to the demurrer, the terms of the contract are sufficiently alleged in the Complaint. The parties’ obligations are set forth

and that the exact dates of Defendant’s required performance are not alleged is not grounds to find the cause of action inadequate. The Complaint sets forth a limited, one-month timeline from execution of the agreement until Defendant’s breach. This is more than sufficient to give Defendant notice of the contract terms and the manner in which it was allegedly breached.

Therefore, Defendant’s Demurrer to the first cause of action for breach of contract is overruled.

2nd Cause of Action for Fraud

The second cause of action for fraud is based on three counts: intentional or negligent misrepresentation, concealment, and promise without intent to perform. Defendant demurs for lack of particularity in the pleading, which is required to state any cause of action for fraud. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) The heightened particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The Complaint, however, does not allege on what date Defendant made the representation that she would continue to operate the business, nor does it allege the manner in which the promise was made. (Compl., ¶¶FR-2, FR-3, FR-4.)

It is not enough to generically allege Defendant made a promise to induce Plaintiff’s payment under the contract and that Defendant did not intend to keep that promise. Simply alleging an unkept but honest promise or mere subsequent failure of performance is not enough to state a cause of action for fraud. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29.) “[S]omething more than nonperformance is required to prove the defendant’s intent not to perform his promise.” (Ibid.) For example, the defendant’s intent not to perform may be shown by circumstantial evidence, such as a pattern of making representations that were never performed. (Id. at 30-31.) Here, the Complaint does not allege any facts from which the Court can infer that Defendant’s allegedly false representation about keeping the business operating was fraudulent.

Therefore, the demurrer to the second cause of action for fraud is sustained with leave to amend.

Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) However, in a court of limited jurisdiction, motions to strike may only be brought on grounds that the allegations do not support the request for relief or damages. (Code Civ. Proc., § 92, subd. (c).)

Defendant moves to strike the allegations in support of the request for punitive damages in the Complaint. A request for punitive damages may be made pursuant to Cal. Civil Code 3294, which

provides, as follows: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)

Here, the only basis for a punitive damages claim is the second cause of action for fraud. The Court having sustained the demurrer to the fraud cause of action finds the punitive damages allegations are also inadequate.

The Motion to Strike Portions of the Complaint is granted with leave to amend.

Conclusion

Defendant Bertha Castillo’s Demurrer to the Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT AND SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION FOR FRAUD.

Defendant Bertha Castillo’s Motion to Strike Portions of the Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

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