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This case was last updated from Los Angeles County Superior Courts on 04/19/2021 at 10:41:26 (UTC).

MICHAEL TALLEY VS STEPHEN ANDREW MEYERS, ET AL.

Case Summary

On 09/14/2020 MICHAEL TALLEY filed a Contract - Other Contract lawsuit against STEPHEN ANDREW MEYERS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5045

  • Filing Date:

    09/14/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELAINE LU

 

Party Details

Plaintiff

TALLEY MICHAEL

Defendants

CARTZNES RAMON DBA PRECISION CONSTRUCTION EXPERTS INC.

OLD REPUBLIC SURETY COMPANY

ALLIANCE INSURANCE COMPANY

PRECISION CONSTRUCTION EXPERTS INC.

MEYERS STEPHEN ANDREW

LEON KROUS DRILLING INC.

BUSINESS ALLIANCE INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

MOUNIER JOHN

Defendant Attorneys

PAGAN JOHN

KIRSCHNER ETHAN D.

SOSA CARLOS EDUARDO

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) DEFE...)

4/9/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) DEFE...)

Notice - NOTICE AND ACKNOWLEDGMENT OF SERVICE

4/9/2021: Notice - NOTICE AND ACKNOWLEDGMENT OF SERVICE

Reply - REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE

4/2/2021: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE

Proof of Service by Substituted Service

4/7/2021: Proof of Service by Substituted Service

Case Management Statement

4/7/2021: Case Management Statement

Notice of Motion - NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

2/26/2021: Notice of Motion - NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

Case Management Statement

3/15/2021: Case Management Statement

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SANCTIONS FOR FAILURE TO FILE PROOF O...)

3/18/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SANCTIONS FOR FAILURE TO FILE PROOF O...)

Case Management Statement

3/23/2021: Case Management Statement

Response - RESPONSE TO DEMURRER TO 3RD & 6TH COUNTS OF COMPLAINT, FILED BY DEFENDANTS CARTZNES AND PRECISION CONSTRUCTION EXPERTS, INC.

3/29/2021: Response - RESPONSE TO DEMURRER TO 3RD & 6TH COUNTS OF COMPLAINT, FILED BY DEFENDANTS CARTZNES AND PRECISION CONSTRUCTION EXPERTS, INC.

Opposition - OPPOSITION PT. 2, SIGNATURE PAGE TO AND PROOF OF SERVICE OF MICHAEL TALLEY'S RESPONSE TO DEMURRER TO 3RD & 6TH COUNTS OF COMPLAINT, FILED BY DEFENDANTS CARTZNES AND PRECISION CONSTRUCTION

3/29/2021: Opposition - OPPOSITION PT. 2, SIGNATURE PAGE TO AND PROOF OF SERVICE OF MICHAEL TALLEY'S RESPONSE TO DEMURRER TO 3RD & 6TH COUNTS OF COMPLAINT, FILED BY DEFENDANTS CARTZNES AND PRECISION CONSTRUCTION

Substitution of Attorney

1/11/2021: Substitution of Attorney

Notice - NOTICE OF CMC

1/18/2021: Notice - NOTICE OF CMC

Proof of Personal Service

12/7/2020: Proof of Personal Service

Notice - NOTICE NOTICE OF CMC AND PERS. SERVICE

12/7/2020: Notice - NOTICE NOTICE OF CMC AND PERS. SERVICE

Notice - NOTICE MICHAEL TALLEY'S NOTICE TO RAMON CARTZNES & PRECISION CONSTRUCTION EXPERTS, INC.- YOUR RESPONSE/ANSWER IS OVERDUE: DEFAULT WILL BE REQUESTED AGAINST YOU ON DECEMBER 29, 2020 IF'OUR RES

12/14/2020: Notice - NOTICE MICHAEL TALLEY'S NOTICE TO RAMON CARTZNES & PRECISION CONSTRUCTION EXPERTS, INC.- YOUR RESPONSE/ANSWER IS OVERDUE: DEFAULT WILL BE REQUESTED AGAINST YOU ON DECEMBER 29, 2020 IF'OUR RES

Civil Case Cover Sheet

9/14/2020: Civil Case Cover Sheet

Complaint

9/14/2020: Complaint

31 More Documents Available

 

Docket Entries

  • 06/03/2021
  • Hearing06/03/2021 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 04/13/2021
  • DocketNotice (re April 9, 2021 Hearing); Filed by Precision Construction Experts, Inc. (Defendant); Ramon Cartznes (Defendant)

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  • 04/09/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) (DEFENDANTS RAMON CARTZNES AND PRECISION CONSTRUCTION EXPERTS, INC.?S NOTICE OF DEMURRERS AND DEMURRERS TO PLAINTIFF?S COMPLAINT) - Held

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  • 04/09/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

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  • 04/09/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: (sanctions for failure to file proof of service.) - Not Held - Continued - Court's Motion

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  • 04/09/2021
  • DocketNotice (and Acknowledgment of Service); Filed by Michael Talley (Plaintiff)

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  • 04/09/2021
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10) DEFE...)); Filed by Clerk

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  • 04/09/2021
  • DocketOrder (RE: DEFENDANTS RAMON CARZNES AND PRECISION CONTRUCTION EXPERTS, INC.'S DEMURRER AND MOTION TO STRIKE.); Filed by Clerk

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  • 04/08/2021
  • DocketNotice (re Amended Complaint); Filed by Michael Talley (Plaintiff)

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  • 04/07/2021
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Michael Talley (Plaintiff)

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32 More Docket Entries
  • 12/07/2020
  • DocketProof of Service by Mail; Filed by Michael Talley (Plaintiff)

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  • 12/07/2020
  • DocketProof of Personal Service; Filed by Michael Talley (Plaintiff)

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  • 12/07/2020
  • DocketProof of Personal Service; Filed by Michael Talley (Plaintiff)

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  • 10/05/2020
  • DocketNotice (of Inspection; Notice to Preserve Evidence); Filed by Michael Talley (Plaintiff)

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  • 09/22/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 09/22/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/14/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 09/14/2020
  • DocketComplaint; Filed by Michael Talley (Plaintiff)

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  • 09/14/2020
  • DocketCivil Case Cover Sheet; Filed by Michael Talley (Plaintiff)

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  • 09/14/2020
  • DocketSummons (on Complaint); Filed by Michael Talley (Plaintiff)

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Tentative Rulings

Case Number: 20STCV35045    Hearing Date: April 9, 2021    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

 

Superior Court of California

County of Los Angeles

Department 26

MICHAEL TALLEY,

Plaintiff,

v.

RAMON CARTZNES dba PRECISION CONSTRUCTION EXPERTS, INC.; STEPHAN ANDREW MYERS; PRECISION CONSTRUCTION EXPERTS, INC.; ALLIANCE INSURANCE COMPANY; OLD REPUBLIC SURETY COMPANY; CALIFORNIA AUTOMOBILE; et al.,

Defendants.

Case No.: 20STCV35045

Hearing Date: April 9, 2021

[TENTATIVE] ORDER RE:

DEFENDANTS RAMON CARTZNES AND PRECISION CONTRUCTION EXPERTS, INC.’S DEMURRER AND MOTION TO STRIKE THE COMPLAINT

Procedural Background

On September 14, 2020, Plaintiff Michael Talley (“Plaintiff”) filed the instant breach of construction contract action against defendants Ramon Cartznes (“Cartznes”), Precision Construction Experts, Inc. (“Precision”), Stephen Andrew Myers (“Myers”), Alliance Insurance Company, Old Republic Surety Company, and Leon Krous Drilling, Inc.[1] The complaint alleges six causes of action for (1) Breach of Contract, (2) Unfair Practices, (3) Penal Code § 496, (4) Negligence, (5) Foreclosure on Surety Bonds, and (6) Release of Mechanic’s Lien.

On February 26, 2021, Defendants Cartznes and Precision (jointly “Moving Defendants”) filed the instant demurrer and motion to strike. On March 29, 2021, Plaintiff filed a response to the demurrer and motion to strike. On April 2, 2021, Moving defendants filed a reply as to the demurrer.

Factual Background

The complaint alleges that: on March 20, 2018, Cartznes, Precision, and Meyers entered into an express and implied verbal contract with Plaintiff to construct improvements to the project located at 2535 Nichols Canyon Road, Los Angeles, CA 90046-1736. (Complaint ¶¶ 9, 91.) Cartznes, Precision, and Meyers breached this agreement by not timely paying the subcontractors and failing to perform the work competently or complete the project in substantial conformity with the plans and specifications. (Complaint ¶¶ 9.2-9.4.) Defendants’ failure to timely pay caused the subcontractor Defendant Leon Krous Drilling, Inc. to file a mechanic’s lien on the property for $44,791.49. (Complaint ¶ 9.5.) This lien has now expired but has not been released. (Complaint ¶ 49.) Cartznes, Precision, and Meyers also made fraudulent statements harming Plaintiff. (Complaint ¶¶ 9.9-9.15.)

Legal Standard

Demurrer Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) 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 lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Motion to Strike Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§ 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure section 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)  There is a similar meet and confer requirement for motions to strike. (CCP § 435.5.)

The Court notes that Defendants have fulfilled the meet and confer requirement. (Kirschner Decl. ¶¶ 3-5, Ex. A-B.)[2]

Demurrer Discussion

Plaintiff’s Response to Defendants’ demurrer

Plaintiff did not file an opposition to the instant demurrer. Instead, Plaintiff’s response filed on March 29, 2021 states that Plaintiff will file a First Amended Complaint pursuant to Code of Civil Procedure section 472. Plaintiff has, however, misquoted section 472.

In its entirety, section 472(a) provides:

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.

(CCP § 472(a) [italics added].) Thus, Plaintiff was required to file any First Amended Complaint when his opposition was due. Plaintiff failed to meet this deadline. Instead, on April 8, 2021, Plaintiff filed a “Notice to Court and Counsel that Plaintiff E-Filed and Eserved First Amended Complaint Per New CCP Sec. 472.” A First Amended Complaint is attached as an exhibit to Plaintiff’s Notice. Plaintiff’s filing of the FAC on April 8, 2021 – just one day before the hearing on the instant demurrer – is untimely pursuant to CCP § 472(a). Accordingly, on the Court’s own motion, the FAC attached to Plaintiff’s April 8, 2021 Notice is stricken.[3]

Third Cause of Action: Penal Code § 496

Defendants contend that the third cause of action for Penal Code section 496 fails because (1) the complaint fails to allege that Moving Defendants obtained stolen property through theft or extortion, (2) the third cause of action is not alleged with the required specificity, and (3) the third cause of action is uncertain.

Penal Code section 496 provides, in pertinent part, as follows:

(a)

A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.

(c)

(Penal Code § 496.)

The Court of Appeal for the Fourth District has held that “[s]ection 496(a) extends to property ‘that has been obtained in any manner constituting theft.’ Penal Code section 484 describes acts constituting theft. The first sentence of section 484, subdivision (a) states: ‘Every person . . . who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, . . . is guilty of theft. (Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1048 [concluding that a Penal Code 496(c) violation could arise from a loan given based on false pretenses].) The Court of Appeal for the Second District has reached a contrary conclusion in Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1134 [concluding that Penal Code section 496, subdivision (c) only authorizes an award of treble damages or attorney fees when the underlying conduct involves trafficking in stolen goods], review granted, Siry Investment, L.P. v. Farkhondehpour (2020) 468 P.3d 701, 265 Cal.Rptr.3d 414.) The Supreme Court has granted review of Siry Investment, L.P. v. Farkhondehpour, and it remains to be seen whether the Supreme Court will hold that a Penal Code section 496(c) violation may arise outside the context of trafficking in stolen goods.

Specificity

Even if the Supreme Court adopts the reasoning in the line of cases applying Penal Code section 496(c) to property obtained by fraud, the facts that Plaintiff has alleged are insufficient to demonstrate that Defendants obtained Plaintiff’s funds through false pretenses or fraud.

The elements of fraud 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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) In addition, this specificity requires that “each element must be pleaded with specificity. [Citations.]” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)

Here, the instant complaint is baffling as Plaintiff attempts to allege all types of fraud with no specific factual allegations as to a basis for the false pretense. Rather, the complaint, in conclusory allegations, alleges that “Cartznes/Precision/Meyers repeatedly used invoices issued by Subcontractors as false pretense bait to misappropriate from Plaintiff — representing to Plaintiff that each invoice represented a valuable element of the Project that would promptly be completed as soon as Plaintiff advanced to Cartznes/Precision/Meyers the amount of the subcontractor's invoice, which Cartznes/Precision/Meyers promised to promptly pay to the subcontractor, as well as Plaintiff advancing payment for Cartznes/Precision/Meyers 's overhead and management/supervision.” (Complaint ¶ 9.9.) The complaint then alleges that the false pretenses made were “On or about March 5-20, 2018 Cartznes/Precision/Meyers {by Ramon Cartznes expressly and impliedly promised and represented that the work on the Project would be performed in a good and competent manner; [¶] On or about March 5-20, 2018 Cartznes/Precision/Meyers [by Ramon Cartznes] expressly and impliedly represented that Defendants were persons of integrity and that the Defendants' work on the project would be performed with integrity, not corruption; Cartznes/Precision/Meyers on or about March 5, 2018, by Ramon Cartznes, represented that they would complete the scope of work on the patio in one month and in the swimming pool in six months[.]” (Complaint ¶ 9.10.) The representations above were also somehow both a false promise and a negligent misrepresentation. (Complaint ¶¶ 9.12-9.13.) The complaint also alleges fraud by concealment where in sum Cartznes, Precision, and Meyers failed to disclose unspecified “certain facts”. (Complaint ¶ 9.11.)

No facts are alleged to support any element of any claim of fraud. For example, there is no allegation of how Plaintiff relied on the claimed representations or how the reliance was justified. Nor are there allegations as to where, how, and by what means the misrepresentations were made or even what the specific representations by Moving Defendants were. As to the claim of fraud by concealment, there is no allegation as to any duty to disclose, or even what was to be disclosed.[4] Thus, the complaint fails to allege any claim for theft by false pretense.

Accordingly, Moving Defendants’ demurrer to the third cause of action is SUSTAINED on this ground. The Court declines to address Defendants’ alternative grounds for demurring to this cause of action.

Sixth Cause of Action: Judicial Release of Mechanic’s Lien

Moving Defendants contend that the sixth cause of action for Judicial Release of Mechanic’s Lien fails because (1) it is not a cause of action, (2) it is moot as the lien has expired, and (3) the cause of action is uncertain.

Though Plaintiff fails to specify the proper section, a Judicial Release of a Mechanic’s lien is a petition action pursuant to Code of Civil Procedure section 8480. (See Civ. Code, § 8480(a), [“The owner of property or the owner of any interest in property subject to a claim of lien may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in Section 8460.”].)

However, Moving Defendants are not claimants on the lien. Rather, the Mechanic’s Lien was filed by Defendant Leon Krous Drilling Inc. (Complaint ¶ 5.) Accordingly, there is no basis for a petition of release of the Mechanic’s lien against Moving Defendants.

Therefore, Moving Defendants’ demurrer to the sixth cause of action is SUSTAINED.

Discussion Motion to Strike

Moving Defendants move to strike the third and sixth causes of action in full, the claim for “treble actual damages” and the prayer for punitive damages.

Third and Sixth Causes of Action

The Court has sustained Moving Defendants’ demurrer to the third and sixth causes of action. Accordingly, Moving Defendants’ motion to strike these causes of action are MOOT.

Treble Damages

As the Court has sustained the demurrer to the claim under Penal Code section 496, which was the sole basis for treble damages, Moving Defendants’ motion to strike the request for treble damages is granted.

Punitive Damages

California Civil Code section 3294, subdivision (a), provides: “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.” A demand for punitive damages for the commission of any tort requires more than the mere allegation of “oppression, fraud, and malice.” (Civ. Code § 3294; see Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

“In order to justify an award of exemplary damages, the defendant must be guilty of oppression, fraud or malice.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.)

Here, the only remaining claim that could support a basis for punitive damages is the claim for negligence. However, as discussed above, the claim fails to properly allege fraud. Nor is there any factual allegation to support a finding of malice or oppression. Therefore, there is no basis for punitive damages. Accordingly, Moving Defendants’ motion to strike the prayer for punitive damages is GRANTED.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Here, the sixth cause of action fails as a matter of law. Given that the Mechanic’s Lien was filed by Defendant Leon Krous Drilling Inc. and not by Moving Defendants, the Court finds that Plaintiff has failed to demonstrate any likelihood at all of successfully amending the sixth cause of action. (Complaint ¶¶ 5, 9.5.) Accordingly, the Court denies leave to amend as to the sixth cause of action.

As to the demurrer to the third cause of action and the motion to strike punitive damages, the court notes that this is the first instance in which it has sustained a demurrer to Plaintiff’s complaint and granted a motion to strike on these grounds. Therefore, Plaintiff has only now been given notice of the legal defects in his third cause of action and the inadequacy of his allegations of fraud as a basis for punitive damages. Therefore, the court finds it is proper to allow Plaintiff an opportunity to cure the defects discussed in this order by amending the complaint to include a properly alleged claim(s) for fraud. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)

CONCLUSION AND ORDER

Based on the foregoing, Defendants Ramon Cartznes and Precision Construction Experts, Inc.’s demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants Ramon Cartznes and Precision Construction Experts, Inc.’s demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.

Moving Defendants’ motion to strike the prayer for punitive damages and for treble damages is GRANTED WITH LEAVE TO AMEND. Plaintiff may amend the complaint to include a properly alleged claim(s) for fraud. The motion to strike is otherwise DENIED.

Plaintiff is to file an amended complaint within ten (10) days of notice of this order. Because Plaintiff has already filed a First Amended Complaint, which has been stricken, Plaintiff should denominate his amended complaint the “Second Amended Complaint” for the sake of clarity.

The case management conference is continued to June 3, 2021.

Moving Party is to give notice and file proof of service of such.

DATED: April 9, 2021 _____________________________

Elaine Lu

Judge of the Superior Court


[1] On April 7, 2021, Plaintiff amended the complaint, naming Business Alliance Insurance Company as Doe 1.

[2] The court notes that the declaration for the motion to strike and the demurrer are identical.

[3] For future reference, Plaintiff should also note that any amended complaint must be filed as its own stand alone document and not as an exhibit to a notice.

[4] “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Ctr., Inc. (2011) 198 Cal. App. 4th 230, 248, [internal citations omitted].)

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