Matthew Palleschi, et al. v. Daniel Fraiman Construction, Inc., et al.

A defendant moving for summary judgment/adjudication has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. Code Civ. Proc. § 437c(o)(1), (2); Aguilar, 25 Cal. 4th at 850. As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. Code Civ. Proc. § 437c(o)(2).

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exists are to be resolved in favor of the party opposing summary judgment. Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900. “A court generally cannot resolve questions about a declarant's credibility in a summary judgment proceeding.” AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.

Analysis

“The elements of fraud that will give rise to a tort action for deceit are: “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974. “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation.

It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.” City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445, 482. “[F]raudulent intent is an issue for the trier of fact to decide.” Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061.

At bar, Defendants, among other things, argue, “Plaintiffs have zero evidence that Mr. Fraiman falsely represented that the Project would not require permits...[a]side from Ms. Palleschi’s post hoc assertions in deposition....” Mot., 8:8-20. They further argue that Plaintiffs have no evidence that any alleged misrepresentation induced Michelle Palleschi’s execution of the contract, or that she justifiably relied on it. Mot., 10:22-11:11. The Court is not persuaded.

First, Defendants’ motion itself acknowledges that Ms. Palleschi offered deposition testimony that Mr. Fraiman falsely represented that the Project would not require permits. In light of this, Defendants have not met their threshold burden of showing that this element cannot be established. Assuming, arguendo, Defendants met their burden, Plaintiffs have shown that a triable issue of fact exists with respect to this representation. In short, Plaintiffs have offered evidence that Fraiman represented to Michelle Palleschi that: permits would not be required, he knew at signing he was not going to pull a permit, he knew a permit was legally required, and he knew there would be no final inspection absent a permit. See Opp’n, 8:27-9:24 and citations therein.

Second, Michelle Palleschi's verified allegations establish that she specifically asked Fraiman about permitting before signing, that he answered falsely, and that she signed the contract at issue in reliance on that answer. See Opposition, 18:5-13 and citations therein.

The Court need not address the remaining five arguments in favor of summary adjudication raised by Defendants. Given the disposition noted above as to the alleged permit misrepresentation, Defendants are not entitled to summary adjudication as a matter of law as to the misrepresentation cause of action.

2. CU0002033 Ingrid W. Speck, et al. vs. Justfly Corp., et al.

One of the parties apparently reserved this date for the filing of a motion; none was filed. This matter is removed from calendar.

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