Demurrer and Motion to Strike First Amended Complaint
Case No. CU24-05460
JAMESON Defendants’ Demurrer and Motion to Strike First Amended Complaint
Defendants JOHN M. JAMESON CONSTRUCTION, INC. and JOHN M. JAMESON (“JAMESON Defendants”) demur to and move to strike portions of Plaintiff BROOKE TERRELL’s first amended complaint (“1AC”) alleging causes of action against them for negligent misrepresentation, fraud, and negligence.
Judicial Notice. Matters subject to judicial notice may support a demurrer under Code of Civil Procedure section 430.30, subdivision (a). The court declines to take judicial notice of JAMESON Defendants’ proffered declaration of counsel as there is no basis for taking judicial notice of a declaration of counsel.
Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v.
Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The Court “assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.)
Legal Standard for Motion to Strike. Code of Civil Procedure section 436, subdivision (a) permits a court to strike out any irrelevant, false, or improper matter inserted in any pleading, upon a motion or in its discretion. Irrelevant matters are those not essential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient claim or defense and demands for relief not supported by the allegations. (
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Analysis of Demurrer. Plaintiff’s 1AC is not uncertain or unintelligible. Plaintiff’s causes of action alleged against JAMESON Defendants – those for negligent misrepresentation, negligent misrepresentation, and negligence – contain clear allegations of fact stating JAMESON Defendants’ liability beyond her use of Does: she alleges that she engaged JAMESON Defendants to provide her a quotation of repair costs, that JAMESON Defendants falsely represented their qualifications to provide such a quotation, and that they falsely and/or negligently provided her an unrealistically low quotation. (1AC at ¶¶ 33-35, 49-53, 72-73, 75.)
Her reliance and their intent to induce reliance can be inferred from the simple fact that they offered a quotation in the context of being retained to inform Plaintiff of what the costs to repair the property would be so that she could confidently proceed with a real estate purchase. (Id. at ¶¶ 22, 36.)
Analysis of Motion to Strike. Plaintiff’s prayer properly requests estimated damages from harms allegedly caused by JAMESON Defendants’ acts or omissions, notably those flowing from her allegedly being deceived into continuing with the real estate purchase and having to engage in repairs more costly than estimated. That portion of the prayer is not appropriately struck from the pleading. However, Plaintiff concedes that she alleges no basis for the recovery of attorneys’ fees; her prayer for attorneys’ fees is appropriately struck from the pleading.
Conclusion. JAMESON Defendants’ demurrer is overruled. JAMESON Defendants’ motion to strike is granted without leave to amend as follows: the 1AC’s prayer for attorneys’ fees is ordered struck. JAMESON Defendants’ motion to strike is otherwise denied.
ANTHONY SMITH vs. HARSHAD B. WADHAR, MD