Midland Credit Management, Inc v. Baxter, Elana

Because fiduciary/confidential relationship is an essential element of fraud, it must be plead with specificity, see Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 961. Here, the allegation that Plaintiff and Defendant were in a 5 + year business relationship is not sufficiently specific to establish a confidential relationship. Other allegations concerning trust and a duty to disclose are conclusory.

Concealment The demurrer is SUSTAINED WITH LEAVE TO AMEND. CACI 1901 provides (4) distinct theories in which a Plaintiff can establish the first element of a concealment claim. The only theory applicable based on the operative pleading appears to be intentional failure to disclose facts in the context of a fiduciary or confidential relationship. As discussed, the pleading as constructed fails to sufficiently allege a confidential relationship. As a result, the demurrer is sustained.

Negligent Misrepresentation The demurrer is SUSTAINED WITH LEAVE TO AMEND. Negligent misrepresentation requires factual allegations establishing that defendant owed plaintiff a duty. (See Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 477) As with fraud, negligent misrepresentation must be plead with specificity. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792-793) The pleading does not expressly allege a duty of care. The opposition appears to reference the existence of a fiduciary or confidential relationship as a basis for imposing a duty. As discussed, existence of confidential relationship has not been sufficiently pled. To the extent leave to amend is granted, Plaintiff shall amend within 20 days’ notice of this order. Defendant William Jacques shall prepare the form of order within two weeks.

10. 23CV02027 Midland Credit Management, Inc v. Baxter, Elana

EVENT: Motion to Request a Judgment Nunc Pro Tunc

Motion to Request a Judgment Nunc Pro Tunc is GRANTED. The Court will sign the proposed order.

4|Page