BI YUEH CHOU VS AMM CONSTRUCTION, ET AL.

Tentative Rulings

Case Number: *******0679 Hearing Date: June 15, 2022 Dept: R

Bi Yueh Chou v. AMM Construction, et al. (*******0679)

(1) Defendants’ AMM Restoration & Construction, Inc.’s, Edward Gonzalez’s, and Alicia Rodriguez’s Demurrer to Plaintiff’s First Amended Complaint

Responding Party: Plaintiff, Bi Yueh Chou

(1) Defendants’ AMM Restoration & Construction, Inc.’s, Edward Gonzalez’s, and Alicia Rodriguez’s Motion to Strike Plaintiff’s First Amended Complaint

Tentative Ruling

(1) Defendants’ AMM Restoration & Construction, Inc.’s, Edward Gonzalez’s, and Alicia Rodriguez’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Defendants are to file their Answer within 30 days of this hearing.

(2) Defendants’ AMM Restoration & Construction, Inc.’s, Edward Gonzalez’s, and Alicia Rodriguez’s Motion to Strike Plaintiff’s First Amended Complaint is DENIED.

Background

Plaintiff Bi Yueh Chou (“Plaintiff”) alleges the following against Defendants AMM Restoration & Construction, Inc (“ARC” or “AMM”); Edward Gonzalez; Alicia Rodriguez; Donald Duffy, JR (“Duffy”); Inland Empire Claim Consultants, Inc (“IECC”) (collectively, “Defendants”): On March 29, 2018, Plaintiff’s property was damaged in a residential fire. Thereafter, Plaintiff entered into a written contract with a public adjuster, Donald Duffy, of IECC. IECC was to advise and assist Plaintiff in the measurement and documentation of Plaintiff's loss, and to present her claim to the insurance company in exchange for ten percent (10%) of amounts paid by Plaintiff's insurance company, Travelers Insurance. Duffy recommended ARC for building consultancy services and for labor and repairs on the property. “Plaintiff is informed and believes that from April 8, 2018 to the present, Travelers Insurance paid IIEC approximately $325,000.00, of which at least $208,428.95 to $247,489.89 was paid to ARC by IIEC for labor and materials needed for the repair of Plaintiff s property.” Despite having been paid, ARC did not complete the repair work on the Subject Property. Moreover, while the property was under ARC’s control, furniture and other personal property was stolen. ARC does not have a valid contractor’s license.

On August 23, 2021, Plaintiff Bi Yueh Chou (“Plaintiff”) filed suit against Defendant AMM Construction, Eduardo Gonzalez, and Alicia Rodriguez (collectively, “Defendants”) alleging breach of contract.

On October 22, 2021, Defendants filed a Demurrer.

On January 6, 2022, the court sustained Defendants’ demurrer with leave to amend.[1]

On March 7, 2022, Plaintiff filed his First Amended Complaint (“FAC”) against Defendants AMM Restoration & Construction, Inc; Edward Gonzalez; Alicia Rodriguez; Donald Duffy, JR; Inland Empire Claim Consultants, Inc; and Does 1 through 20 for:

1. Breach of Contract,

2. Intentional Misrepresentation,

3. Negligent Misrepresentation,

4. Negligence,

5. Breach of Contract,

6. Accounting,

7. Conversion,

8. Violation of Penal Code section 496(a),

9. Elder Abuse, and

10. Unjust Enrichment

On May 11, 2022, Defendants AMM Restoration Construction, Inc; Edward Gonzalez; and Alicia Rodriguez filed a Demurrer and a Motion to Strike to Plaintiff Bi Yueh Chou’s Complaint.

On June 2, 2022, Plaintiff filed its Opposition to the Demurrer.

On June 8, 2022, Defendants filed their Reply.

Legal Standard

A demurrer may be made on the grounds that, inter alia, the pleading does not state facts sufficient to constitute a cause of action, that the pleading is uncertain and/or that, in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code Civ. Proc., 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it likes only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendants bring forth demurrer on the grounds that:

1. The Second Cause of Action for Intentional Misrepresentation does not state facts sufficient to demonstrate a specific and malicious intent to deceive Plaintiff by any of the AMM defendants (Code of Civ. Proc. 430.10(e)) and

2. The pleading does not state facts sufficient to constitute a cause of action for Financial Elder Abuse on the ground that, in this action allegedly founded upon a contractual fraud, Plaintiff’s FAC admits that was not an elder at the time of contracting, and therefore she is not entitled to claim elder abuse. (Code of Civ. Proc. 430.10(e)).

(Notice of Demurrer p. 3.)

Intentional Misrepresentation

The elements of fraud that give rise to a tort action for deceit are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citation.]” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; see also CACI No. 1900.) An intentional misrepresentation claim is based on a positive assertion made by the defendant. The particularity requirement is in full force with intentional misrepresentation claims; a plaintiff pleading intentional misrepresentation must plead facts showing “how, when, where, to whom, and by what means” the allegedly fraudulent representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiff’s FAC makes the following allegations under the second cause of action:

On April 9, 2018, Rodriguez, acting on behalf of ARC as its project manager, misrepresented to Plaintiff in writing that ARC had a valid contractor's license by providing Plaintiff with the ARC Agreements, which identified ARC as having license number 037173420.

At the time of this representation, Rodriguez knew this representation was false because no license existed under this license number, because she was ARC's project manager and chief executive officer, and because ARC did not in fact have a contractor's license.

Rodriguez and the ARC Parties intended to induce Plaintiff s reliance because they knew that Plaintiff would not hire a contractor to conduct the repairs to the Subject Property unless the contractor was licensed.

As a direct and proximate result of this misrepresentation, Plaintiff has been harmed in amount to be proved at trial.

(FAC, 39-43.)

Defendants argue that such allegations are not plead with specificity, notably that there are no allegations that AMM Defendants acted with the level of malice.

First, a showing of malice is not required. Second, as noted by Plaintiff, Defendants inherently concede that there was a misrepresentation. (Demurrer p. 4 [“Aside from the allegation about an incorrectly written license number . . . .”]) (emphasis added). Third, the facts are pled with specificity as it sets forth the date, the person who made the representation, and that that such a representation was indeed a misrepresentation because ARC did not in fact have a contractor's license, and that such a misrepresentation was made because individuals generally only hire licensed contractors, inducing Plaintiff to hire ARC.

Therefore, as the FAC states sufficient facts to allege a cause of action for intentional misrepresentation, the demurrer as to the second cause of action is OVERRULED.

Financial Elder Abuse

Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (See Welf. & Inst. Code 15610.30(a).) A person is deemed to have taken the property when he or she has deprived an elder of any property right. (See id. 15610.30(c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person . . . takes . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . . . .” (Id. 15610.30(b).)

Defendants argue that “Plaintiff’s FAC reveals that (a) she was not an elder at the time of contracting since she did not turn 65 until well after the contract performance had already begun and (b) there are insufficient specific factual allegations to show an intent to defraud, wrongful use, or undue influence by the AMM defendants, including no factual allegations showing that defendant should have been aware of a harmful breach.” (Demurrer p. 5:15-19.)

In opposition, Plaintiff concedes that Plaintiff was not 65 years old at the time she entered into the agreements but that Defendants have not provided “any authority indicating that defendants are immune from the elder abuse statutes for wrongs committed after a person turned 65 where the contract was entered into before their victim turned 65.” (Opp. p. 7.)

First, to establish financial elder abuse, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was 65 years of age or older at the time of the conduct. (See CACI, 3100.)

Nevertheless, the FAC does make allegations to ongoing allegations of financial elder abuse such taking of Plaintiff’s property and payments made after Plaintiff turned 65. (FAC 75: [Plaintiff turned sixty-five years old on October 2, 2018 and thereafter at least $70,490.71 had been paid to the IECC Parties and at least $ 124,793.24 had been paid to the ARC Parties.”]) (emphasis added).

Therefore, even though Plaintiff was not 65 at the time the contract was entered into, there are other allegations of financial elder abuse, the court OVERRULES the ninth cause of action.

Conclusion

Based on the foregoing, the entirety of the demurrer is OVERRULED. Defendants’ predominant argument is that the FAC does not contain factual allegations, but the court finds the contrary. Based on the court’s ruling on the demurrer, the motion to strike references to punitive damages is DENIED.

Case Number: *******0679 Hearing Date: January 6, 2022 Dept: R

Defendants’ AMM Restoration & Construction, Inc.’s, Edward Gonzalez’s, and Alicia Rodriguez’s Demurrer to Plaintiff’s Complaint.

Responding Party: Unopposed as of December 30, 2021 (due December 22, 2021).

Tentative Ruling

Defendants’ AMM Restoration & Construction, Inc.’s, Edward Gonzalez’s, and Alicia Rodriguez’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITH 60 DAYS LEAVE TO AMEND.

Background

This case arises from a purported breach of contract.

On August 23, 2021, Plaintiff Bi Yueh Chou (“Plaintiff”) filed suit against Defendant AMM Construction, Eduardo Gonzalez, and Alicia Rodriguez (collectively, “Defendants”) alleging breach of contract.

On October 22, 2021, Defendants filed a Demurrer.

To date, no opposition has been received (due December 22, 2021).

Legal Standard

A demurrer may be made on the grounds that, inter alia, the pleading does not state facts sufficient to constitute a cause of action, that the pleading is uncertain and/or that, in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code Civ. Proc., 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it likes only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendants demurrer to Plaintiff’s Complaint as follows:

1. To the First Cause of Action for Breach of Contract on the ground that it does not state facts sufficient to constitute a cause of action (Code of Civ. Proc. 430.10(e)),

2. To the First Cause of Action for Breach of Contract on the ground that, in this action allegedly founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct (Code of Civ. Proc. 430.10(g)),

3. To the Second Cause of Action for Failure to Comply with the Contractor’s License Law on the ground that the court has no jurisdiction of the subject of the cause of action alleged in the pleading because that subject matter jurisdiction has been conferred upon an administrative agency of the State of California: The Contractors’ State License Board, which hears such matters pursuant to the California Administrative Procedures Act (commencing with Gov’t Code 11500 et. seq.), and

4. To the entire Complaint on the ground that the Complaint does not state facts sufficient to constitute a cause of action in that the pleading is uncertain due to a lack of specificity as to the causes of action set forth and their legal and factual bases.

A. Plaintiff’s First Cause of Action for Breach of Contract Fails to Plead Sufficient Facts to State the Necessary Elements of Breach of Contract

At the outset, the court agrees with Defendants that the Complaint is unclear as to the causes of action set forth.

Moreover, Plaintiff does not clearly identify whether the alleged contract is written, oral, or implied by conduct, in violation of California Code of Civil Procedure section 430.10 subdivision (g).

Assuming, arguendo, the cause of action is for breach of written contract, Plaintiff failed to allege sufficient facts to constitute the cause of action. “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. [Citation]” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4^th 299, 307.) (See also Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4^th 189, 198-199 (“In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. [Citation]”).) Plaintiff did not attach copies of the agreement to the complaint, allege the terms of the written agreement verbatim in the complaint, or plead the legal effect of the agreement. In short, Plaintiff’s complaint is bare of facts and the necessary agreement. (Complaint 9.)

As for Defendants’ premise that the court lacks subject matter jurisdiction over Plaintiff’s purported second cause of action for failure to comply with the contractor’s license law, the court does not have the sufficient facts to determine Plaintiff’s asserted causes of actions. For example, if Plaintiff is claiming that the contractor was not licensed and is seeking damages and/or disgorgement, then such an issue would fall within the jurisdiction of this court. On the other hand, if Plaintiff is simply alleging Defendants violated miscellaneous provisions of the Business and Professions Code then such an issue would likely fall within the jurisdiction of the Contractors’ State License Board. However the complaint lacks sufficient facts for the court to make an appropriate determination.

Conclusion

Based on the foregoing, Defendants’ demurrer to Plaintiff’s Complaint is SUSTAINED WITH 60 DAYS LEAVE TO AMEND.