Mary Margaret Bartels v. J&K Pools et al.

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) When reviewing a demurrer, a court must draw all reasonable inferences in favor of the plaintiff. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239). Moreover, “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

Code of Civil Procedure section 436 permits a court to strike: (1) “any irrelevant, false, or improper matter inserted in any pleading”; and (2) “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.” As with demurrers, the grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) “In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group

2025) ¶ 7:197.5.)

II. Fraud Cause of Action

The FAC alleges as follows:

20. On or around April 3, 2022, Plaintiff met with Delunas, who Plaintiff is informed and believes is the owner and/or operator of J & K. Delunas by written contract, agreed that he and J & K would construct a below-ground swimming pool and necessary appurtenant concrete hardscaping (he later subcontracted the hardscape to Coastline and JKK as explained below). Plaintiff provided Defendants with the Update and architectural plan. Delunas individually and/or J & K represented that they were licensed contractors.

Delunas by oral and/or written agreement specifically agreed that he would construct the Project in conformance with California and local pool construction laws, permits, a nd custom and practice, and in conformance with the Update’s and architectural plan’s recommendations and conclusions. The oral part of the contract included and specified that Delunas, J & K, and any subcontractors they may hire would perform the contract in conformance with California and local pool construction laws, permits, and custom and practice, and in conformance with the Update’s and architectural plan’s recommendations and conclusions.

21. At the time of contracting with Plaintiff, Delunas, individually and on behalf of J & K, specifically orally contracted that he, J & K, and any agents or subcontractors they might hire, would comply with the requirements of the Update and the architectural plan, and in conformance with California and local pool construction laws, permits, and custom and practice.

22. Plaintiff had no knowledge regarding pool construction and Plaintiff reasonably relied upon the representations of Delunas, made individually and authorized by J & K on or before the date of contracting, and her reliance was reasonable in light of the fact that Delunas and/or J & K were licensed contractors in the State of California, and had superior knowledge and expertise.

25. Thereafter, Defendants installed the pool and hardscape. Plaintiff is informed and believes that unbeknownst to Plaintiff and not authorized by her, the Defendants failed to comply with the requirements of their contracts and representations that they would comply with in conformance with California and local pool construction laws, permits, and custom and practice, and the recommendations of the Update and architectural plan. Defendants represented that they had, in fact, performed their services in conformance with California and local pool construction laws, permits, and custom and practice, and in conformance with the Update’s and architectural plan’s recommendations and conclusions.

26. In or around January 11, 2023, Plaintiff first noticed significant cracks and uplifting in the hardscape surrounding the pool. Plaintiff tried to contact Defendants, but they failed

and refused to respond to all communications.

27. In or around July, 2024, Plaintiff learned, for the first time, that the damages were caused due to Defendants’ failure to comply with the recommendations of the Update and architectural plan, which had been provided by Plaintiff to them, including failing to comply with the necessity to use non-expansive soil underlay.

56. As set forth above, Defendants represented that they would and did perform the services in conformance with California and local pool construction laws, permits, and custom and practice, and in conformance with the Update’s and architectural plan’s recommendations and conclusions.

57. These representations were false.

58. The true facts were that Defendants did not and/or did not intend to comply with the recommendations of the Update and architectural plan, which had been provided by Plaintiff to them, including failing to comply with the necessity to use non-expansive soil underlay.

59. Defendants knew that the representations were false when they made them, or made the representations recklessly and without regard for the truth.

60. At the time they made the representations, Defendants knew that Plaintiff would reasonably rely upon their misrepresentations, and intended that Plaintiff rely upon the representations.

61. Plaintiff relied upon the misrepresentations.

62. As a result of the misrepresentations, Plaintiff was damaged.

63. Defendants’ conduct was a substantial factor in causing Plaintiff’s damages.

(FAC, ¶¶ 20, 21, 22, 25, 26, 27, 56, 57, 58, 59, 60, 61, 62, 63 [emphasis added].)

Civil Code section 1709 provides, “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” Deceit is “[a] promise, made without any intention of performing it.” (Civ. Code § 1710, subd. 4.)

The elements of fraud by deceit are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039, 1060.) “A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).)

To assert a promissory fraud cause of action a complaint must allege (1) the defendant made a

representation of intent to perform some future action and (2) the defendant did not intend to perform the promise at the time it was made. (Id. at 639.) Pleading the false promise requires allegations of “facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Id. at 645 [citations omitted].) “As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance.” (Beckwith v.

Dahl, supra, 205 Cal.App.4th at 1060 [citation omitted].) “‘Purely evidentiary matters—usually circumstantial evidence or admissions showing lack of that intention—should not be pleaded. Hence, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 725, p. 142.)’” (Id.)

As highlighted above, the FAC alleges the elements of fraud by promise without intent to perform with sufficient specificity.

III. Punitive Damages

Defendants argue that punitive damages should be stricken from the FAC because fraud has not been sufficiently pled. The Court finds that an intentional fraud claim is sufficiently pled which supports the request for punitive damages.

IV. Ruling

The demurrer to the Fifth Cause of Action for Fraud is overruled.

The motion to strike punitive damages is denied.

Defendants shall have ten days from service of notice of this ruling to file and serve an answer to the FAC. (Cal. Rules of Court, rule 3.1320, subd. (j)(1).) Plaintiff shall serve notice.

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