Demurrer to Amended Complaint
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15 The Mutual Group vs. Downie-Economy
2025-01476648 Demurrer to Amended Complaint Defendant Leigh Ann Downie-Economy’s Demurs to Plaintiff’s First Amended Complaint Timeliness of opposition Plaintiff’s opposition was untimely as it was filed on 4/1/26 and served 3/31/26, but due on 3/30/26 pursuant to Code of Civil Procedure section 1005, subdivision (b). The court has discretion to accept or reject late-filed or served papers. (See Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262 [citing to Cal. Rules of Court, rule 3.1300, subd. (d)]; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [citations omitted].) As Defendant has filed a reply addressing the merits of the opposition and made no objection based on timeliness. Therefore, the Court will consider the late-filed opposition.
First cause of action for fraud “The elements of fraud, which give rise to the 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.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [citation omitted].) Fraud must be pleaded with specificity. (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843-844 [citation omitted]. This requires a plaintiff to plead facts showing “how, when, where, to whom, and by what means” any representations were made. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 [citation omitted].)
Plaintiff alleges: - From 4/1/23 and 4/1/24, Plaintiff, then known as GuideOne Insurance Company, issued a policy of insurance to Christ Lutheran Church (Insured) for coverage of, among other things, employee theft. (FAC ¶ 8.)
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- Defendant was the former daycare director of the Insured. (FAC ¶ 9.) - Between approximately 1/1/19 and 9/30/23, Defendant misappropriated $89,204.04 from the Insured by fraudulently using a debit card issued and entrusted to Insured to purchase goods and services for her own benefit. (FAC ¶ 10.) - The Insured demanded repayment, but Defendant failed to repay such funds. (FAC ¶ 11.) - Plaintiff compensated its Insured in the amount of $89,204.04 for its loss as required by the Policies’ provisions covering employee theft. (FAC ¶ 12.) - Plaintiff has been damaged and is entitled in subrogation under the Policy to recover from Defendant $89,204.04 paid to its Insured. (FAC ¶ 12.)
Plaintiff fails to sufficiently allege a cause of action for fraud. Plaintiff does not allege with the requisite specificity what misrepresentations were made or what material information was intentionally concealed, nor the circumstances surrounding the misrepresentations/concealment. Moreover, Plaintiff does not allege Defendant’s intent to defraud and whether or how Plaintiff justifiably relied on Defendant’s misrepresentations and/or concealment to its detriment. Tentative Ruling: The Court SUSTAINS Defendant’s demurrer to the first cause of action with 20 days leave to amend.
Second cause of action for money had and received “A cause of action for money had and received is stated if it is alleged [that] the defendant ‘is indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.]” (Avidor v. Sutterps Place, Inc. (2013) 212 Cal.App.4th 1439, 1454, [citations omitted].) “The claim is viable ‘wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.’” (Ibid. [citations omitted].)
“As juries are instructed in CACI No. 370, the plaintiff must prove that the defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the money was not used for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” (Ibid.) Plaintiff alleges Defendant used a debit card issued and entrusted to the Insured to purchase goods and services for her own benefit rather than using it for the benefit of the Insured. (FAC ¶ 10.) Plaintiff further alleges the funds did not belong to Defendant and while the Insured demanded repayment, Defendant refused to repay the funds. (FAC ¶¶ 10, 11.) These allegations are sufficient at the pleading stage. Tentative Ruling: The Court OVERRULES Defendant’s demurrer to the second cause of action. Defendant to give notice.
16 Ingram vs. Silver 2020-01134343 1. ADR Review Hearing 2. Motion to Dismiss 3. Order to Show Cause re: Payment of Arbitration Fees
Defendant moves to dismiss this action for failure to prosecute pursuant to Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(2)(B). Defendant alternatively moves to vacate this court’s 3/28/2022 order compelling arbitration for failure to prosecute pursuant to Code of Civil Procedure section 1287.97.
Code of Civil Procedure section 583.410 provides: (a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.
Code of Civil Procedure section 583.420, subdivision (a)(2)(B) provides: “The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following