Motion for Summary Judgment, or in the Alterative, Summary Adjudication
For COA 6, the Demurrer is SUSTAINED, with 15 days leave to amend. The claim as pled appears to be time-barred under C.C.P. § 338(d): the vague assertions in the FAC at ¶ 37 do not suffice to allege delayed discovery.
The claim as pled also lacks adequate specificity. The elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) defendant intended to defraud plaintiff by intentionally concealing or suppressing the fact; (4) plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) plaintiff sustained damage as a result of the concealment or suppression of the material fact. (Rattagan v.
Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40.) Every element must be alleged in full, factually and specifically. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The specificity requirement “provides an important safeguard against the risk of tort recovery for fraud in every case involving conduct occurring during a contractual relationship.” (Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at 43.)
Here, Plaintiff has provided only a vague description of the alleged defect(s) in his vehicle (FAC ¶¶ 78-81), without identifying what specifically occurred, when and how the defect(s) was discovered, what specific information was allegedly known to Ford concerning that defect, and when. Generic claims of defects, without more, will not suffice to state the claim, as “[t]he very existence of a warranty presupposes that some defects may occur.” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 345.) Greater specificity is required.
However, Defendants’ argument under the ELR fail here. Rattagan did not address claims of fraudulent inducement by concealment in the Song-Beverly context. (Rattagan v. Uber Technologies, Inc., supra, 1
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Defendants are to give notice of this ruling. 14 Taxrise, Inc. vs. Plaintiff Taxrise, Inc.’s (“Plaintiff”) unopposed Motion for Vyapay, Inc. Summary Judgment, or in the Alterative, Summary Adjudication (“Motion”) is DENIED.
Plaintiff moves for summary judgment, or alternatively, summary adjudication on each of its five causes of action (“COA”) solely against defendant Wain Swapp (“Swapp”). (Civ. Proc. Code § 437c(p)(1) and (f).)
COA No. 1 – Breach of Written Contract
“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.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.)
Plaintiff argues it entered a contract with defaulted defendant Vyapay, Inc. (“Vyapay”). The contract presented in support of the Motion was between non-party WorldPay as ‘Acquirer’ and Plaintiff as ‘Sub-Merchant’. (Evidence, Ex. A.) VyaPay was noted to be the ‘Provider’ under the terms of the contract.
The contract indicates it is made “in connection with the agreement between [Plaintiff] and VyaPay. . .” (Evidence, Ex. A ¶ 1.) The contract also states, “ Acquirer understands that [Plaintiff] may have contracted with [VyaPay] to obtain certain processing services and that [VyaPay] may have agreed to be responsible to [Plaintiff] for all or part of [Plaintiff’s] obligations contained herein.” (Ibid.) Further, “If appropriately indicated in [Plaintiff’s] agreement with [VyaPay], [Plaintiff] may be a limited-acceptance merchant. . .” (Evidence, Ex.
A ¶ 3.) Additionally, “The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with [Vyapay’s] agreement with [Plaintiff].” (Evidence, Ex. A § 4.) Finally, “This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party.” [Emphasis added.] (Evidence, Ex. A § 6.)
The contract presented was between Plaintiff and WorldPay, Inc., not between Plaintiff and VyaPay or Swapp. The terms of the contract specifically state that the contract is only for the benefit of Plaintiff and WorldPay and not for any other party. While the presented contract alludes to a potential separate contract between Plaintiff adt VyaPay, no such contract was provided. The contract provided is also only signed by Plaintiff and not VyaPay, Swapp, or any other entity. Despite the Motion stating the contract ‘mandating’ the funds must be released after six months, there is nothing in the contract presented that states that.
As Plaintiff has not shown a viable contract between Plaintiff and Swapp, any terms of any such contract which required something from Swapp, or any breach of said terms. Plaintiff has not met its initial burden of proving each element of the cause of action. (Civ. Proc. Code § 437c(p)(1).)
The Motion is DENIED as to this COA.
COA No. 2 – Conversion
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages....[Citation omitted.]” (Lee v. Hanley (2015) 61 Cal. 4th 1225, 1240 (“Lee”).) “But where the money or fund is not identified as a specific thing the action is to be considered as one upon contract or for debt and not for conversion.” (Baxter v.
King (1927) 81 Cal. App. 192, 194.) Finally, “While it is true that money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved [Citation], it is not necessary that each coin or bill be earmarked. When an agent is required to turn over to his principal a definite sum received by him on his principal's account, the remedy of conversion is proper.” (Haigler v. Donnelly (1941) 18 Cal. 2d 674, 681.)
Plaintiff argues Swapp wrongfully exercised dominion over Plaintiff’s property, however Plaintiff has presented no evidence Swapp did that or is personally liable to Plaintiff for the alleged actions of VyaPay. Plaintiff has not identified a specific sum of money that was withheld (or converted) from Plaintiff. While the Complaint states the sum was $167,682.92, it also appears from the allegations in the complaint to state that half that sum had been released back to Plaintiff for the new $300,000 per month contract. (Complaint ¶¶ 10, 18.) The evidence presented in support of the Motion also supports VyaPay released $81,716.50 on 02/17/22 to Plaintiff. (Evidence, Ex. B.) Plaintiff has not presented evidence Swapp has personally exercised dominion over any of Plaintiff’s property, nor has Plaintiff identified a specific amount of money.
Plaintiff has not met its initial burden of proving each element of the cause of action. (Civ. Proc. Code § 437c(p)(1).) The Motion is DENIED as to this COA.
COA No. 3 – Money Had and Received
““A cause of action for money had and received is stated if it is alleged [that] the defendant ‘is indebted to the plaintiff in a certain sum “for money had and received by the defendant for the use of the plaintiff.” ’ ...” [Citation.] The claim is viable “ ‘wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.’ ” [Citations.] As juries are instructed in CACI No. 370, the plaintiff must prove that the defendant received money “intended to be used for the benefit of [the plaintiff],” that the money was not used for the plaintiff's benefit, and that the defendant has not given the money to the plaintiff.” (Avidor v. Sutter's Place, Inc. (2013) 212 Cal. App. 4th 1439, 1454.)
Again, Plaintiff has provided no evidence Swapp is personally indebted to Plaintiff, that Swapp personally took or is holding any money that might belong to Plaintiff, and Plaintiff produced no evidence Swapp had anything to do with the allegations in the Complaint. There is no evidence of a contract between the Plaintiff and Swapp and the only evidence produced by Plaintiff regarding Swapp was that Swapp was allegedly cc’d on emails wherein Plaintiff requested funds. (Evidence, Ex. B.) There is no evidence Swapp responded to those emails.
Plaintiff has not met its initial burden of proving each element of the cause of action. (Civ. Proc. Code § 437c(p)(1).)The Motion is DENIED as to this COA.
COA No. 4 – Breach of the Implied Covenant of Good Faith and Fair Dealing
“There is no obligation to deal fairly or in good faith absent an existing contract. [Citation.] If there exists a contractual relationship between the parties. . . the implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract.” (Racine & Laramie, Ltd. v. Dep't of Parks & Recreation (1992)11 Cal. App. 4th 1026, 1032.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.
Thus, absent those limited cases where a breach of a consensual contract term is not claimed or alleged, the only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1395.)
As noted, Plaintiff provided no evidence of a contract between Plaintiff and Swapp or evidence of liability on the part of Swapp to Plaintiff. Plaintiff has not met its initial burden of proving each element of the cause of action. (Civ. Proc. Code § 437c(p)(1).) The Motion is DENIED as to this COA.
COA No. 5 – Unjust Enrichment
“[T]he elements for a claim of unjust enrichment: receipt of a benefit and unjust retention of the benefit at the expense of another.” (Lectrodryer v. SeoulBank (2000) 77 Cal. App. 4th 723, 726.)
The Motion simply parrots the elements of unjust enrichment without providing any arguments or evidence Swapp was personally unjustly enriched.
Plaintiff has not met its initial burden of proving each element of the cause of action. (Civ. Proc. Code § 437c(p)(1).)The Motion is DENIED as to this COA.
COA No. 6 – Unfair Business Practices - B&P Code, § 17200
“The California Unfair Competition Law [“UCL”] ([Bus. & Prof. Code] § 17200 et seq.) defines ‘“unfair competition” as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”’” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 609.)
“In contrast to its limited remedies, the unfair competition law's scope is broad. The unfair competition law's scope is broad. Unlike the Unfair Practices Act, it does not proscribe specific practices. Rather, as relevant here, it defines “unfair competition” to include “any unlawful, unfair or fraudulent business act or practice.” [Citation.] Its coverage is “sweeping, embracing ' ”anything that can properly be called a business practice and that at the same time is forbidden by law.“ ' ” [Citations.]
It governs “anti-competitive business practices” as well as injuries to consumers, and has as a major purpose “the preservation of fair business competition.” [Citations.] By proscribing “any unlawful” business practice, “section 17200 'borrows' violations of other laws and treats them as unlawful practices” that the unfair competition law makes independently actionable. [Citations.] [¶] However, the law does more than just borrow. The statutory language referring to “any unlawful, unfair or fraudulent” practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. “Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. 'In other words, a practice is prohibited as ”unfair“ or ”deceptive“ even if not ” unlawful“ and vice versa.'” (Cel-Tech Commc'ns, Inc. v.
Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 180.)
Again, Plaintiff produced no evidence Swapp personally took any specific actions related to the accusations in the Complaint.
Plaintiff has not met its initial burden of proving each element of the cause of action. (Civ. Proc. Code § 437c(p)(1).) The Motion is DENIED as to this COA.
Plaintiff to give notice. 15 16