FRANK KAUL VS. AFONSO INFANTE, ET AL

8/27/2026 – Law and Motion Calendar Judge: Honorable Mark A. McCannon – Department 2 Page 10 of 16

2:00 PM LINE 7 25-CIV-06878 FRANK KAUL VS. AFONSO INFANTE, ET AL

FRANK KAUL PRO SE AFONSO INFANTE PRO SE

Defendant’s Demurrer to Verified First Amended Complaint

TENTATIVE RULING:

For the reasons stated below, Defendant Afonso Infante’s (“Defendant” or “Infante”) demurrer to Plaintiff Frank Kaul dba Swift Legal’s (“Plaintiff”) March 16, 2026 verified First Amended Complaint (“FAC”) is OVERRULED in its entirety. (Code Civ. Proc., § 430.10, subds. (e), (f).)

Defendant’s request to reclassify the action as a limited civil case is DENIED.

BACKGROUND

Plaintiff’s original Complaint (“OC”), filed September 18, 2025, alleged that, on or about February 24, 2025, Defendant entered into an agreement with Plaintiff pursuant to which Plaintiff would provide privateinvestigative and service-of-process services to locate and serve third parties in connection with legal matters. Plaintiff alleged that Defendant promised to pay for those services despite having no intention of doing so. According to the OC, after Plaintiff provided the services, Defendant breached the agreement on or about June 15, 2025, by reversing, disputing, or otherwise refusing payment. Defendant demurred to the OC. On March 5, 2026, the Court sustained the demurrer in part and overruled it in part, with leave to amend.

On March 16, 2026, Plaintiff filed the verified FAC, which asserts three causes of action against Infante: (1) common counts—work, labor, and services; (2) breach of contract; and (3) promissory fraud. Defendant demurs to all three causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain. (Code Civ. Proc., § 430.10, subds. (e), (f).)

LEGAL STANDARD

The purpose of a demurrer is to test the legal sufficiency of the facts alleged in the operative complaint to determine whether they state a cause of action under any legal theory as a matter of law. (New Livable Cal. v. Association of Bay Area Gov’ts (2020) 59 Cal.App.5th 709, 714–715; Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1014.) A complaint must allege the essential elements of a cause of action. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1134.) A demurrer must dispose of an entire cause of action to be sustained. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

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In determining whether a complaint states facts sufficient to constitute a cause of action, the Court accepts as true properly pleaded factual allegations and matters properly subject to judicial notice, but not contentions, deductions, or conclusions of fact or law. (Code Civ. Proc., § 430.30, subd. (a); Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.) The complaint must be reasonably interpreted and read as a whole, with its parts considered in context. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.) The Court construes the pleading liberally (Code Civ. Proc., § 452) and accepts as true facts that may reasonably be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405.)

PLAINTIFF DID NOT PREMATURELY FILE THE FAC.

Defendant argues that the FAC is procedurally defective because Plaintiff filed it before entry and service of a formal order on the demurrer to the OC. The Court disagrees. The Court’s March 5, 2026 minute order authorized Plaintiff to file an amended pleading “no later than ten (10) days after service of written notice of entry of the formal order.” That language established an outside deadline; it did not prohibit Plaintiff from filing the FAC before service of notice of entry. The FAC therefore was not prematurely or improperly filed.

THE INCREASE IN THE AMOUNT OF CLAIMED DAMAGES DOES NOT RENDER THE FAC SUBJECT TO DEMURRER.

Defendant argues that the FAC constitutes a sham pleading because the OC alleged damages of “$851.90 at a minimum” on the common-count claim and “at least $2,500.00” on the fraud claim, whereas the FAC alleges damages of $3,351.90. The argument is unpersuasive.

The sham-pleading doctrine permits a court to consider allegations in a superseded pleading where an amended complaint omits or contradicts material allegations in an apparent effort to avoid a defect in the earlier pleading. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 946–947.) The doctrine, however, is not mechanically applied to every change between successive pleadings. (Id. at pp. 946–947, 949–950.)

Here, the FAC does not eliminate or contradict an allegation that was fatal to the OC. The OC alleged $851.90 “at a minimum” on the common-count claim and fraud damages of “at least $2,500.00.” The FAC’s allegation that Plaintiff’s damages total $3,351.90 is not necessarily inconsistent with those allegations. More importantly, the amendment does not alter the underlying allegations that Defendant requested Plaintiff’s services, promised to pay for them, Plaintiff performed, and Defendant thereafter refused payment. Defendant’s disagreement with the amount claimed presents a factual and evidentiary issue rather than a pleading defect.

Nor does the increase in claimed damages render the FAC uncertain within the meaning of Code of Civil Procedure section 430.10, subdivision (f). A demurrer for uncertainty is strictly construed because ambiguities ordinarily can be clarified through discovery. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Defendant can reasonably determine what allegations he must admit or deny, including whether he retained Plaintiff, promised payment, received the alleged services, refused payment, lacked an intent to perform when the promise was made, and caused Plaintiff the damages alleged. Defendant may seek through discovery further information concerning the calculation and itemization of Plaintiff’s claimed damages.

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THE FAC SUFFICIENTLY PLEADS EACH CAUSE OF ACTION.

The essential allegations of a common count are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) The FAC alleges that Defendant requested Plaintiff’s services, Plaintiff performed those services, their reasonable value was $3,351.90, Plaintiff demanded payment, and Defendant failed to pay. (FAC, ¶¶ 39–42.) Those allegations are sufficient at the pleading stage. Defendant cites no authority requiring Plaintiff to attach invoices or plead particular hours and rates to state a common count.

The elements of a cause of action for breach of contract are (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) The FAC alleges that Defendant retained Plaintiff to provide litigation-support and private-investigative services and promised payment; Plaintiff performed; Defendant refused to pay; and Plaintiff suffered resulting damages of $3,351.90. (FAC, ¶¶ 23–27, 43–47.) To the extent Defendant contends that the FAC fails to identify whether the agreement was written, oral, or implied, Defendant did not demur under Code of Civil Procedure section 430.10, subdivision (g).

As to promissory fraud, the Court previously overruled Defendant’s demurrer to materially similar allegations in the OC. The FAC alleges that Defendant promised to pay Plaintiff for services while having no intention of performing that promise, intended to induce Plaintiff to rely on the promise, Plaintiff reasonably relied by performing the requested services, and Plaintiff suffered resulting damages. (FAC, ¶¶ 23–27, 48–55; see Lazar v. Superior Court (1996) 12 Cal.4th 631, 638–639.) The FAC therefore sufficiently states a cause of action for promissory fraud.

RECLASSIFICATION

Defendant previously requested reclassification, and the Court denied that request on March 5, 2026. To the extent the present request constitutes a renewed application for the same relief, Defendant has not satisfied the requirements of Code of Civil Procedure section 1008, subdivision (b).

Independently, Defendant has not established that reclassification is warranted under Code of Civil Procedure section 403.040. An action may be reclassified from unlimited to limited based on the amount in controversy only where it appears to a legal certainty that a judgment exceeding the jurisdictional ceiling is unobtainable. (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 277–279.) The present ceiling for a limited civil case is $35,000. (Code Civ. Proc., § 85, subd. (a).) Although the FAC alleges $3,351.90 in unpaid compensation, it also asserts promissory fraud and seeks additional relief, including punitive damages. On the present record, Defendant has not established to a legal certainty that Plaintiff cannot obtain relief exceeding $35,000. The request for reclassification is therefore DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the moving party shall prepare a written order consistent with the Court's ruling for the Court's signature pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. The Court directs the parties to San Mateo County Superior Court Local Rule 3.403(b)(iv) regarding the wording of proposed orders.