Defendants Jack Mitchell Construction, Inc., Jack Mitchell Construction, Jack W. Mitchell and Lorie Mitchell’s Motion to Strike Plaintiff Alaa Latif’s First Amended Complaint
at issue states that service of request for admission, set one, was served by mail on July 21, 2024 at 21231 Dove Circle, Huntington Beach, CA 92646 [the “Huntington Beach Address”]. [Id., Ex. 1 at p. 3].
Further, the address listed on the caption of Defendant Nicole Feryanitz’s answer is the Huntington Beach Address. However, the motion, itself, was served on Nicole Feryanitz at 1166 Verrona Place, Pomona, CA 91766 (the “Pomona Address”). There is no notice of change of address by Nicole Feryanitz on file in this case. There is no explanation how and why Plaintiff obtained this Pomona Address.
The court continued the hearing for Plaintiff to file an amended declaration explaining the discrepancy in the addresses and to establish that Defendant Feryanitz received the discovery at issue and the moving papers on the motion with sufficient notice.
Since that hearing, Plaintiff has only filed a notice of the continued hearing, which Plaintiff served on Defendant Feryanitz at both the Huntington Beach Address and the Pomona Address. There is no further evidence that Defendant Feryanitz received proper notice of all of the moving papers on the motion with sufficient notice. Further, to the extent that Plaintiff has information that Defendant Feryanitz moved to the Pomona Address, the discovery being served at the Huntington Address may likely not have reached Feryanitz.
For these reasons, the motion is denied without prejudice.
Plaintiff to give notice.
2 Latif v. Jack W. Defendants Jack Mitchell Construction, Inc., Jack Mitchell Construction, Mitchell Jack W. Mitchell and Lorie Mitchell’s Motion to Strike Plaintiff Alaa Latif’s Construction, Inc. First Amended Complaint is DENIED.
Authority
Code Civ. Proc. § 436, provides: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strikeout any irrelevant, false, or improper matter inserted in any pleading. (b) 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.”
Defendants move to strike the following from the First Amended Complaint (FAC):
1. Page 10, lines 1-2, paragraph 64, in its entirety, which alleges: “Defendants acted willfully and maliciously, justifying punitive and exemplary damages under
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Paragraph 64 is under the 4th cause of action for fraudulent concealment in the FAC.
According to Civ. Code § 3294 (c)(1), (2) and (3):
(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Plaintiff alleges the following in support of this claim against all Defendants:
At all relevant times, Defendants had a duty to disclose the true status of JMC’s contractor’s license because (a) they possessed exclusive knowledge of material facts; (b) they made partial representations in Section 1(G) of the Agreement that JMC was duly licensed; and (c) Plaintiff could not have discovered this information on his own. (FAC, ¶ 57). Defendants intentionally concealed that JMC’s contractor’s license was not active or in good standing during the project. (FAC, ¶ 58). Defendants concealed this information to induce Plaintiff to continue performance and payment under the Agreement. (FAC, ¶ 69). Plaintiff did not know of the concealed facts and could not have discovered them through reasonable diligence. (FAC, ¶ 60). Approximately one month after termination, Plaintiff learned from a subcontractor that JMC’s license was not in good standing during the project. (FAC, ¶ 61).
Defendants contend that the FAC does not plead ultimate facts showing oppression, fraud, or malice as required by Civil Code section 3294, and, therefore, punitive damages should be stricken. Defendants also contend that the FAC pleads no nonconclusory facts showing such malice or fraud by either Jack Mitchell or Lorie Mitchell (the only individual Defendants).
“The elements of a cause of action for fraud 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.’” (Kaldenbach v. Mut. of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850 [internal citations omitted]).
“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’” (LiMandri v. Judkins (1997) 52
Cal.App.4th 326, 335 [citing Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651].)
“Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (LiMandri, supra, 52 Cal.App.4th at 337 [emphasis added]). With regards to fraudulent concealment, a complaint need not specify information that is uniquely within defendants’ knowledge. (Tenet Healthsystem Desert, Inc. v. Blue Cross of Calif. (2016) 245 Cal.App.4th 821, 840)
However, Plaintiff has adequately alleged a duty to disclose as Plaintiff has alleged that all Defendants, including the individual defendants, entered into a contractual agreement with Plaintiff. Plaintiff alleges that Defendants intentionally concealed that JMC’s license was not active despite the contractual agreement wherein they represented that JMC was licensed, and that Plaintiff was unaware of this fact.
The court finds that Plaintiff adequately stated a cause of action for fraudulent concealment against all Defendants. Accordingly, because Plaintiff has adequately stated fraud under Civil Code § 3294, subd. (c)(3), the motion to strike is DENIED.
Defendants shall give notice.
Case Management Conference
The Case Management Conference is continued to August 27, 2026, at 9:00 a.m. in this department.
Plaintiff to give notice.
3 Ruby v. Farano Plaintiffs Paula Sanburg Ruby and Barry Ruby’s Motion to Compel Further Responses to Requests for Production (Set One) is DENIED.
Plaintiffs’ Motion is denied for several reasons.
First, a motion to compel further responses to requests for production of documents is required to be accompanied by a compliant separate statement. (Cal. Rules of Court, rule 3.1345(a)(2).) Absent from the Motion is a separate statement.
“When a motion fails to include a separate statement, a trial court is ‘well within its discretion’ to deny the motion.” (In re Marriage of Moore (2024) 102 Cal.App.5th 1275, 1296, citing to Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762.)
While the first six pages of Exhibit B to the Ruby Declaration includes a summary of why Defendant’s responses suffer from “systemic defects,” Exhibit B still does not comply with the Rules of Court, such that the Court acts within its discretion to deny the Motion. (In re Marriage of Moore (2024) 102 Cal.App.5th 1275, 1296; see People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1554 [no abuse of discretion in
denying motion to compel where the motions failed to comply with the applicable rules regarding separate statements].)
While Plaintiffs are permitted to submit a concise outline of the discovery request and each response in dispute (Code Civ. Proc., § 2031.310, subd. (b)(3); Cal. Rules of Court, rule 3.1345(b)(2); see In Marriage of Moore (2024) 102 Cal.App.5th 1275, 1296-1297 [moving party not required to obtain prior court permission to submit a concise outline in support of motion]), Exhibit B to the Ruby Declaration can hardly be described as complying with either the separate statement requirement, or as a “concise outline of the discovery request and each response in dispute.”
As the moving party, it was Plaintiffs’ duty to provide the Court with a compliant separate statement so that the Court could understand each discovery request, all the responses that are at issue, and the factual and legal reasons that warrant further responses. Plaintiffs’ failure to comply with rule 3.1345 warrants denial of their Motion.
Second, motions to compel further responses require that Plaintiffs make a good faith effort at informal resolution prior to filing the motion. Pursuant to the Code of Civil Procedure, a motion to compel further responses to interrogatories “shall be accompanied by a meet and confer declaration under section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b)(2).)
In turn, section 2016.040 of the Code of Civil Procedure states that a “meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt, either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion.” (Code Civ. Proc., § 2016.040, subd. (a), italics added.)
Plaintiffs only attempted to meet-and-confer with Defendant via written correspondence. (Exhibits C, D to Ruby Declaration.) Even when Defendant advised Plaintiffs that the meet-and-confer requirement required a telephonic or in-person discussion, Plaintiffs insisted Defendant was wrong, and they took the position that their written meet-and-confer correspondence was sufficient. (Exhibit D to Ruby Declaration.)
Further, Plaintiffs’ meet-and-confer efforts do not evince “ ‘a serious effort at negotiation and informal resolution.’ ” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.) “ ‘[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’ [Citation.]” (Id. at p. 1294.) “[A]ttempting informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways’ ... [A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel .... Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’ [Citation.]” (Ibid.; In re Marriage of Moore (2024) 102 Cal.App.5th 1275, 1293-1294; Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 880.)
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