Demurrer to Amended Complaint; Case Management Conference
Defendant has moved to strike both the fraudulent inducement claim and the prayer for punitive damages. [ROA #65.] Plaintiffs have not filed any response or opposition.
Demurrer Given Plaintiffs’ express non-opposition, the demurrer to the fifth cause of action in Plaintiffs’ FAC is sustained without leave to amend.
Plaintiffs have made no showing that they can cure any defects in the complaint. “If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. . . . The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.” Hendy v. Losse (1991) 54 Cal.3d 723, 742 (citations omitted).
Motion to Strike A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. Code Civ. Proc. § 431.10(b). A motion to strike can also strike legal conclusions. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.
Fraudulent Inducement Cause of Action Given the demurrer ruling, the motion to strike is moot as to the fraudulent inducement cause of action.
Prayer for Punitive Damages The motion is granted as to the prayer for punitive damages.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
At the pleading stage, to support a claim for punitive damages the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. In the absence of a viable fraud claim as a result of the demurrer ruling, Plaintiffs have not alleged a basis for punitive damages.
Defendant is ordered to give notice.
111 2025-01467987 1. Demurrer to Amended Complaint 2. Case Management Conference Yang vs. Ha Defendants Thuy Ha and Open Plan Construction Inc.’s demurrer to Plaintiffs Scott Yang and Nina Tran’s second amended complaint is overruled.
2nd COA for Breach of Contract “A cause of action for breach of contract requires [1] pleading of a contract, [2] plaintiff’s performance or excuse for failure to perform, [3] defendant's breach, and [4] damage to plaintiff resulting therefrom.” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference— or by its legal effect. (Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501.)
Here, Plaintiffs allege the existence of a written agreement “between THUY HA on behalf of herself and on behalf of OPEN PLAN CONSTRUCTION INC., on the one hand, and NINA TRAN on the other hand.” (SAC at ¶ 22.) Defendants specially demur to the breach of contract claim on the grounds that, “Plaintiff SCOTT A. YANG is not a party to the contract.” (ROA 49 [Dem. at p. 4].) This argument is not persuasive, because the SAC expressly states (on p. 6) that the breach of contract claim is being asserted by Plaintiff Tran, only. Accordingly, the demurrer is overruled.
3rd COA for Negligent Misrepresentation by Deceit and 4th COA for Intentional Misrepresentation by Deceit Deceit is a: “suggestion, as a fact, of that which is not true, by one who does not believe it to be true”; an “assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true”; the “suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact”; or, a “promise, made without any intention of performing it.” (Civ. Code, § 1710.) The element of misrepresentation for a deceit claim “is satisfied by a failure to fully disclose material facts.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1269.)
“Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.) “The elements of negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196.) Like a claim for fraud, each element of negligent misrepresentation “must be factually and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [“The policy of liberal construction of pleadings is not generally invoked to sustain a misrepresentation pleading defective in any material respect”].)
As they argued in their prior demurrer, Defendants claim the misrepresentation claims fail because Plaintiffs did not plead the claims with the requisite particularity, and because Plaintiff Yang “was not involved party.” The former is not persuasive, because it is contrary to the allegations in the SAC, wherein Plaintiffs allege that the misrepresentations were made to both plaintiffs. (See SAC at ¶¶ 28, 32.) A demurrer “admit[s] all the properly pleaded material facts” and “even the most improbable alleged facts” are accepted as true. (Nolte v.
Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) The latter argument is not persuasive, either, because Plaintiffs have adequately alleged the circumstances surrounding the alleged deceit. Plaintiffs have specifically alleged: [1] misrepresentations or concealments of material facts about being licensed contractors; [2] made by Defendant Ha, individually, and on behalf of Open Plan Construction, Inc.; [3] to Plaintiffs; [4] and, that the misrepresentations were made from 11/18/24 through 11/27/24 (SAC at ¶¶ 9, 28, 32).
Lastly, Defendants’ argument that the misrepresentation claims are an “improper attempt to recast a breach of contract cause of action as a tort claim,” is without merit. (Dem. at p. 6.) The economic loss doctrine is not applicable, here, because Plaintiffs are not alleging mere non-performance or negligent performance of the construction contract. Rather, Plaintiffs are alleging they were deceived into hiring Defendants (i.e., fraudulently induced) through Defendants’ concealment of the fact that they were not licensed contractors. As such, the economic loss rule does not bar their misrepresentation claims. (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34
Cal.4th 979, 992.)
Accordingly, the Demurrer is overruled in its entirety.
Defendants shall file and serve their answer to the SAC within 15 days.
The case management conference is continued to November 9, 2026 at 10:00 a.m. in Department C27.
Plaintiffs are ordered to give notice of the ruling.
112 2025-01452129 1. Order to Show Cause 2. Order to Show Cause NNN Capital Fund 3. Order to Show Cause re: Terminating Sanctions I, LLC vs. Mikles No Tentative issued.
113 2025-01491936 1. Motion for Leave to File Cross Complaint 2. Order to Show Cause re: Failure to Appear SweeterHR vs.
3. Order to Show Cause re: Sanctions for Failure to File Case Management Statement Schoeman 4. Case Management Conference
Defendants Kiffany Schoeman and Tamily HR Solutions LLC’s Motion for leave to file the proposed Cross-Complaint against Plaintiff SweeterHR and Sasha Elkins is granted.
Defendants are ordered to file the proposed pleading within 10 days and serve it pursuant to the Code of Civil Procedure.
If Plaintiff’s counsel appears at the hearing, the OSCs will be discharged. Failure to appear at the hearing on these matters will result in the Court moving forward with the hearing on the OSCs.
The case management conference is continued to November 16, 2026 at 10:00 a.m.
Moving party is ordered to give notice.