This case was last updated from Los Angeles County Superior Courts on 10/02/2021 at 01:32:58 (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

  • 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

Motion to Compel Further Discovery Responses - Motion to Compel Further Discovery Responses

7/14/2021: Motion to Compel Further Discovery Responses - Motion to Compel Further Discovery Responses

Opposition (name extension) - Opposition to the Motion to Compel Further Responses and Sanctions

7/30/2021: Opposition (name extension) - Opposition to the Motion to Compel Further Responses and Sanctions

Reply (name extension) - Reply In Support Of Motion To Compel Requests For Production and For Discovery Sanctions

8/5/2021: Reply (name extension) - Reply In Support Of Motion To Compel Requests For Production and For Discovery Sanctions

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

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

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

23 More Documents Available

 

Docket Entries

  • 11/01/2021
  • Hearing11/01/2021 at 09:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)

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  • 09/09/2021
  • DocketUpdated -- Notice of Settlement: Status Date changed from 09/09/2021 to 09/09/2021; As To Parties: removed

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  • 09/09/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 11/01/2021 at 09:30 AM in Spring Street Courthouse at Department 26

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  • 09/09/2021
  • DocketUpdated -- Leighton Morse Anderson (Attorney): Organization Name: Bewley, Lassleben & Miller, LLP

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  • 09/09/2021
  • DocketAddress for Leighton Morse Anderson (Attorney) null

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  • 09/09/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 09/09/2021
  • DocketNon-Jury Trial scheduled for 11/02/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 09/09/2021

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  • 08/12/2021
  • DocketUpdated -- Motion to Compel Further Discovery Responses - Compelling Defendant's Further Responses to Plaintiff's Requests for Production of Document (Set One); Request for Monetary Sanctions Against Defendant and Her Counsel of Record: Filed By: Enrique M Mendoza (Plaintiff); Result: Granted; Result Date: 08/12/2021

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  • 08/12/2021
  • DocketNon-Jury Trial scheduled for 11/02/2021 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 08/12/2021
  • DocketMinute Order (Hearing on Motion to Compel Further Discovery Responses - Com...)

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40 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

b"

Case Number: 19STLC08396 Hearing Date: August 12, 2021 Dept: 26

Mendoza v. Castillo. et al. 19STLC08396

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST\r\nFOR PRODUCTION AND REQUEST FOR SANCTIONS

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(CCP §§ 2031.310, 2023.010)

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TENTATIVE\r\nRULING:

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Plaintiff Enrique Mendoza’s Motion to Compel Defendant\r\nBertha Castillo’s Further Responses to Request for Production of Documents, Set\r\nOne, and Request for Sanctions is GRANTED AS DETAILED HEREIN. DEFENDANT IS TO\r\nSERVE FURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND\r\nCOUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $861.65\r\nTO PLAINTIFF’S COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On September 12, 2019, Plaintiff Enrique M.\r\nMendoza (“Plaintiff”) filed the Complaint in this action for (1) breach of\r\ncontract; and (2) fraud against Defendant Bertha Castillo (“Defendant”).\r\nFollowing the Court’s ruling on Defendant’s Demurrer to the Complaint,\r\nPlaintiff filed the First Amended Complaint on September 21, 2020. On February\r\n2, 2021, the Court overruled Defendant’s Demurrer to the First Amended\r\nComplaint. Defendant filed an Answer on February 16, 2021.

On July\r\n14, 2021, Plaintiff filed the instant Motion to Compel Defendant’s Further\r\nResponses to Request for Production of Documents, Set One, and Request for\r\nSanctions. Defendant filed an opposition on July 30, 2021 and Plaintiff replied\r\non August 5, 2021.

Discussion

Procedural\r\nRequirements

Notice of the\r\nmotion to compel further must be given “within 45 days of service of the\r\nverified response, or any supplemental verified response, or any specific later\r\ndate to which the requesting party and the responding party have agreed in\r\nwriting,” otherwise, the propounding party waives any right to compel a further\r\nresponse. (Code Civ. Proc., § 2031.310, subd. (c).) Plaintiff served the\r\nRequest for Production of Documents, Set One (erroneously designated as “Set\r\nTwo”) by electronic mail on May 5, 2021. (Motion, Leighton Decl., Exh. 1.) Defendant\r\nserved responses on June 3, 2021 by mail. (Id. at Exh. 2.) Notice of the\r\ninstant Motion was timely filed and served on July 14, 2021.

Also, the motion must\r\nbe accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310,\r\nsubd. (b).) Plaintiff’s counsel he sent a meet and confer letter to defense\r\ncounsel on July 6, 2021 by mail. (Id. at Exh. 3.) The letter demanded a\r\nresponse by July 9, 2021, only three days later. (Ibid.) Defense counsel\r\nsent a response on July 12, 2021 in which amended responses to certain Requests\r\nwere promised. (Id. at Exh. 4.) Plaintiff then filed the instant Motion\r\non July 14, 2021. Based on the parties’ discussion of the merits of the\r\ndiscovery dispute, the meet and confer requirement, therefore, is satisfied.

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Finally, Cal. Rules\r\nof Court Rule 3.1345 requires all motions or responses involving further\r\ndiscovery contain a separate statement with the text of each request, the\r\nresponse, and a statement of factual and legal reasons for compelling further\r\nresponses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) Alternatively, “the court\r\nmay allow the moving party to submit a concise outline of the discovery request\r\nand each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).) The\r\nMotion is accompanied by a separate statement. (Separate Statement, filed 07/14/21.) Requests for Production, Nos. 1-8

The First Amended Complaint alleges in the first cause of\r\naction for breach of contract that the parties orally negotiated the sale of\r\nthe business on January 7, 2019. (FAC, ¶BC-1.) These negotiations included\r\nDefendant’s alleged promises that the business’ books and records would be\r\nprovided, and that, in exchange for Plaintiff’s up-front payment, Defendant\r\nwould assign employees to operate the business while Plaintiff was travelling.\r\n(Ibid.) These allegations are incorporated by reference in the fraud\r\ncause of action, which identically identifies Defendant’s allegedly unkept\r\npromise. (Id. at ¶¶FR-2, FR-3, FR-4, Attachment FR-4.)

Request No. 1 asks Defendant to produce “[a]ll original\r\nsales, inventory, employee and other records used for data entry into the\r\nGoogle spreadsheets previously produced.” The Google spreadsheets were\r\npreviously produced in response to a document demand attached to a notice of\r\ndeposition, which sought “all books and records of or relating to the business”\r\noperated by Defendant. (Motion, p. 4:7-10; Opp., Lewis Decl., Exh. A, p.\r\n2:13-14.) Plaintiff contends that the spreadsheets are insufficient because\r\nthey are not original business records, which should have previously been\r\nproduced, hence prompting the instant Request for the original books and\r\nrecords of or relating to the business.

Defendant makes extensive and boilerplate objections that\r\nthe Request is compound, vague and ambiguous, burdensome, oppressive,\r\nirrelevant, immaterial, violates Defendant’s constitutional and financial\r\nprivacy, violates employees’ privacy, seeks information equally available to\r\nPlaintiff, and has previously been asked. The Request is not compound; it seeks\r\noriginals of the documents used to create a specific spreadsheet. Nor is the\r\nRequest vague or ambiguous. Defendant need only reference the first request for\r\n“all books and records of or relating to the business” to understand what is\r\nbeing sought. Plaintiff’s use of the phrase “other records” simply means\r\ndocuments relating to the business other than original sales, inventory and\r\nemployee records. The privacy objections pertaining to Defendant’s own\r\nfinancial and constitutional privacy are overruled. “Courts must [] place the\r\nburden on the party asserting a privacy interest to establish its extent and\r\nthe seriousness of the prospective invasion, and against that showing must\r\nweigh the countervailing interests the opposing party identifies, as Hill\r\nrequires.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557 [citing\r\nHill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1].)

This is an action for fraud in the sale of a business and Defendant\r\nhas not shown that Plaintiff’s compelling need for access to the records of the\r\nbusiness to prove the elements of his case are outweighed by “the seriousness\r\nof the prospective invasion” of Defendant’s interests. (See Williams v.\r\nSuperior Court (2017) 3 Cal.5th 531, 557.) Defendant also contends that the\r\ndocuments sought in this Request were already left for Plaintiff “at the shop.”\r\n(Opp., p. 4:12-15; Motion, Separate Statement, p. 3:1-6.) Defendant cannot\r\nassert a privacy objection with respect to documents that were purportedly\r\nalready disclosed. Finally, to the extent Defendant contends the documents were\r\npreviously produced and no longer in her possession, this is not a proper\r\nobjection and Defendant must make a statement of her inability to comply that\r\nconforms to the requirements of Code of Civil Procedure section 2031.230.

The only objections of real concern are Defendant’s\r\nassertion of the business employees’ privacy and the tax return privilege. Discovery\r\ninto a third party’s employment records involves a “clear intrusion” into an\r\n“obvious privacy interest.” (Puerto v. Superior Court (2008) 158\r\nCal.App.4th 1242, 1251.) However, Plaintiff alleges that Defendant failed to\r\nassign employees to operate the business while Plaintiff was on vacation, as\r\npromised. (FAC, ¶BC-1.) Plaintiff’s interest in the employees’ time records,\r\nwhich are directly relevant to his claims, outweighs the employees’ privacy\r\nconcerns. However, the evidence does not demonstrate that Plaintiff has a\r\nsufficient countervailing interest in the rest of the employees’ records.

The tax return privilege is well established in the law.\r\n(See Wilson v. Superior Court (1976) 63 Cal.App.3d 825, 828 [citing Webb\r\nv. Standard Oil Co. (1957) 49 Cal.2d 509, 513].) Plaintiff argues without any citation\r\nto any authority that tax returns are normally disclosed in a sale of business\r\ntransaction. (Motion, p. 4:22-24.) Nor has Plaintiff demonstrated that\r\nDefendant’s production of a single tax document—IRS Schedule C—should result in\r\nwaiver of the privilege as to the remaining tax documents. No explanation is\r\nprovided regarding how the information between the IRS Schedule C and remaining\r\ntax documents overlaps. However, to the extent Plaintiff is entitled to\r\ndiscover information that Defendant lawfully ran the business while Plaintiff\r\nwas on vacation, Defendant’s tax privilege claim should be closely scrutinized.\r\nDefendant is to produce a privilege log regarding the purportedly privileged\r\ndocuments. In order to conform to Code of Civil Procedure section 2031.240,\r\nsubdivision (c)(1), the privilege log is “provide the identity and capacity of\r\nall individuals who authored, sent, or received each allegedly privileged\r\ndocument, the document's date, a brief description of the document and its\r\ncontents or subject matter sufficient to determine whether the privilege\r\napplies, and the precise privilege or protection asserted.” (See Catalina\r\nIsland Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130.)

Therefore, Plaintiff is entitled to a further response to\r\nRequest No. 1. Defendant is to produce further responsive documents with the\r\nexception of (1) tax returns for which a privilege log is to be produced; and (2)\r\nthe employees’ records other than their time sheets.

Request No. 2 asks Defendant to produce “All orginal [sic]\r\nsales, expense, employee or other records used for data entry into the\r\nSquareUp.com/dashboard spreadsheets previously produced.” As with the response\r\nto Request No. 1, Defendant asserted numerous objections based on privacy\r\nconcerns, burden, oppression, relevance and that materials were previously\r\nproduced. Defendant also states that she will allow Defendant to inspect any\r\nrelevant and non-privileged documents. (Motion, Separate Statement, p. 7:1-10.)\r\nFor the reasons discussed above and because it does not appear that Defendant\r\nhas yet produced “relevant and non-privileged documents” for Plaintiff’s\r\ninspection (see Reply, p. 4:17-27), Plaintiff is entitled to a further response\r\nto Request No. 2, which includes a privilege log of the tax documents, but\r\nexcludes employee records other than time records.

Request No. 3 asks Defendant to produce “All payroll tax\r\nreturns matching the employee time records previously produced in Google\r\nspreadsheet form.” Plaintiff’s separate statement confusingly asserts that the\r\ndocuments sought by this request are not “tax returns.” (Motion, Separate\r\nStatement, p. 7:19-20.) Yet the express language of the request is for tax\r\nreturns. Defendant is to produce a privilege log for the tax documents.

Request No. 4 asks Defendant to produce “All payroll records\r\nmatching the employee time records previously produced in Google 5 spreadsheet\r\nform.” For reasons discussed above, Defendant is to produce the payroll records\r\nand a privilege log of the tax returns.

Request No. 5 asks Defendant to produce “All state, local,\r\nand district sales and use tax returns filed by Defendant at any time from or\r\nafter January 1, 2018 to December 31, 2019. Defendant is to produce a privilege\r\nlog of the tax returns.

Request No. 6 asks Defendant to produce “Monthly bank\r\nstatements for any account used by defendant at any time from or after January\r\n3 1, 2018 to December 31, 2019.” The Court agrees that this request\r\ninappropriately seeks Defendant’s personal bank accounts, which are protected\r\nby the right of privacy and not directly related to the claims in the action.\r\nHowever, further responses are warranted for bank accounts connected to the\r\nbusiness. Defendant is to produce bank statements for any account related to the\r\nbusiness during the stated time period.

Sanctions

Plaintiff’s request for sanctions is granted pursuant to\r\nCode of Civil Procedure section 2031.310, subdivision (h). Defendant and\r\ncounsel of record are ordered to pay sanctions of $861.65 based on two hours of\r\nattorney time billed at $400.00 per hour and $61.65 in costs. (Motion, Leighton\r\nDecl., ¶14.)

Conclusion

Plaintiff Enrique Mendoza’s Motion to Compel Defendant Bertha\r\nCastillo’s Further Responses to Request for Production of Documents, Set One, and\r\nRequest for Sanctions is GRANTED AS DETAILED HEREIN. DEFENDANT IS TO SERVE\r\nFURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL\r\nOF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $861.65 TO\r\nPLAINTIFF’S COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

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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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