Minute OrderCal. Super. - 6th Dist.October 16, 2017SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Paulina Jane vs William Morning Hearing Start Time: 9:00AM 17CV317441 Hearing Type: Hearing: Demurrer Date of Hearing: 08/14/2018 Comments: 3 Heard By: Pierce, Mark H Location: Department 2 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Mai Jansson Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appeara nce. Tentative adopted as follows: Currently before the Cou rt is the demurrer by defenda nt William Charles Morning( Defenda nt ) to the complaint of plaintiff Paulina Jane ( Plaintiff ). Factual a nd Procedu ral Backgrou nd This is an action for fraud, intentional infliction of emotional distress, ancl violations of the Business ancl Professions Code. On December 14, 2016, Plaintiff and Defenda nt entered into a six-month lease whereby Defenda nt agreed to pay Plaintiff $1,380 per month to rent a room in her home. (Complaint, 5.) Pursuant to the terms of the lease, a $2,000 security deposit was made by [Defendant]. (|bid.) In the lease, Defendant indicated that he owned a home in Placerville, California. (|bid.) In January 2017, Plaintiff began dating Defenda nt. (Complaint, 6.) At that time, Plaintiff intended to perform repairs on two rental properties that she owned in Sa ratoga, California. (Id. at 7.) Defenda nt learned of Plaintiffs plan ancl offered to help her with plumbing repairs in his spare time. (lbid.) Plaintiff inquired as to how much [Defenda nt] would charge for his time ancl labor. (Id. at 8.) Defenda nt insisted ancl represented that any assista nce he provided would be of no charge. [He] indicated that [Plaintiff] could compensate [him] by occasionally buying him coffee ancl doing his laundry. (lbid.) Plaintiff orally agreed to this arra ngement ancl also offered to pay for [Defenda nt s] meals anytime [he] worked on the two rental properties. (lbid.) Defendant accepted this offer. (lbid.) About two months later, Defenda nt told Plaintiff he had been laid off from hisjob ancl fou nd another work project in South Sacramento that would ta ke approximately 10 days. (Complaint, 11.) Defendant told Plaintiff that he would return after the project was finished. (lbid.) After Defendant left, Plaintiff did not hear from him and she became worried. (Complaint, 12.) She looked in Defenda nt s room and discovered he had moved out. (lbid.) Plaintifftried to reach Defenda nt and left him a Printed: 8/15/2018 08/14/20] 8 Hearing: Demurrer - l7CV3l744] Page 1 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER message that she was going to visit his Placerville home. (Id. at 13.) Defenda nt reSponded to the message ancl told Plaintiffthat he was still in a relationship with his domestic partner in Placerville. (Ibid.) Defendant allegedly warned [Plaintiff] that if his domestic pa rtner learned of [her], his partner, who owned a gu n, could potentially hurt or even kill [her]. (Ibid.) In addition, Defendant allegedly alluded to hurting [Plaintiff] himself if she continued to harass him about payment, indicating that he too had access to a gun ancl that [his] domestic pa rtner was a police officer who could cover up any foul play. (Ibid.) On Ma rch 26, 2017, Defendant agreed to meet Plaintiff at a coffee shop in Placerville. (Complaint, 14.) During the meeting, Defenda nt orally agreed to pay $2,000 for the secu rity deposit he owed [Plaintiff]. (Ibid.) He also orally agreed to pay April s rent on April 1, 2017. (Ibid.) Subsequently, Defenda nt made payments in the total amou nt of $1,380. (Id. at 15.) Defendant did not pay the $2,000. (Ibid.) In May 2017, Plaintiff sued Defenda nt in small claims court, seeking damages for lost rent and the costs associated with trying to enforce the lease agreement. (Complaint, 16.) Following a hea ring in June 2017, Defenda nt approached Plaintiff regarding a possible settlement ancl Plaintiff agreed to meet Defenda nt at a restaura nt to discuss the sa me. (Id. at 17.) During their meeting, Plaintiff ancl Defendant orally agreed on a settlement amou nt. (Id. at 18.) However, Defendant refused to put their agreement in writing. (Ibid.) Defenda nt allegedly told [Plaintiff] that he would sign a written agreement only if she agreed to spend the weekend with him in Pacifica and sleep with him. (Ibid.) Plaintiff rejected Defenda nt s proposition. (Ibid.) Thereafter, Defendant threatened to sue Plaintiff. (Ibid.) In September 2017, Defenda nt served Plaintiff with a cross-complaint, falsely alleging that the parties entered into a contract for services rendered by [Defendant] at [the] two rental properties in Saratoga ancl Plaintiff owed him $9,000 under the terms of that contract. (Complaint, 19.) Defenda nt also presented a fabricated timesheet of his labor to the small claims court. (Id. at 20.) As of mid-October 2017, a final judgment had not been entered in the small claims case. (Complaint, 22.) Based on the foregoing allegations, Plaintiff filed a complaint against Defendant on October 16, 2017, alleging causes of action for: (1) intentional misrepresentation,- (2) fraudulent concealment; (3) intentional infliction of emotional distress; (4) violation of Business and Professions Code sections 7160 and 7161; ancl (5) violation of Business ancl Professions Code section 7026, et seq. On January 29, 2018, Plaintiff filed a request for dismissal, without prejudice, of the fifth cause of action. On the same clay, the court clerk entered the dismissal as requested. Defenda nt filed the insta nt demurrer to the complaint on May 8, 2018. On July 31, 2018, Plaintiff filed papers in opposition to the demurrer. Discussion Defenda nt demurs to the first through fifth causes of action of the complaint on the grou nd of failure to Printed: 8/] 5/20] 8 08/14/20] 8 Hearing: Demurrer - l7CV31744] Page 2 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).) Defendant also demurs to the first, second, fourth, and fifth causes of action of the complaint on the ground of uncertainty. (See Code C'Iv. Proc., 430.10, subd. (f).) |. Request forJud'Ic'IaI Notice Defenda nt asks the Cou rt to take judicial notice of the following cou rt records: Plaintiff s Claim and Order to Go to Small Claims Court; his Claim and Order to Go to Small Claims Cou rt; the Notice of Entry ofJudgment filed in the small claims case,- and the Order After Appeal ofTriaI De Novo filed in the small claims case. These docu ments are proper subjects ofjudicial notice because they are court records relevant to the arguments raised 'In connection with the pending demurrer. (See Evid. Code, 452, subd. (d) [permitting judicial notice of cou rt records]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [There is a precondition to the ta king ofjudicial notice in either its ma ndatory or permissive form any matter to bejudicially noticed must be releva nt to a material issue. ],' People v. Woodell (1998) 17 Ca|.4th 9693, 455 [Evidence Code sections 452 and 453 permit the trial court to ta ke judicial notice of the existence ofjudicial opinions and court documents, along with the truth of the results reached-in the docu ments such as orders, statements of decision, and judgments-but [the cou rt] cannot take judicial notice of the truth of hearsay statements in decisions or cou rt files, including pleadings, affidavits, testimony, or statements of fact. 1-) Accordingly, Defenda nt s request forjudicial notice is GRANTED as to the existence of the subject court records and the truth of the results reached in the Notice of Entry of Judgment and the Order After Appeal of Trial De Novo. ll. Legal Sta ndard The fu nction of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Ca pital Wholesale Elec. Etc. Fu nd v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore La nd Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary fu nction of a demurrer to test the truth of the [] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defenda nt s conduct. []Thus, [] the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations ancl quotations omitted.) Moreover, the question of plaintiff s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing cou rt. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-14.) However, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120 (George); Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688 (Piccinini).) Printed: 8/15/2018 08/14/20] 8 Hearing: Demurrer - l7CV31744] Page 3 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER |||. First and Second Causes of Action Defenda nt argues that the first and second causes of action for intentional misrepresentation and fraudulent concealment, reSpectiver, are uncertain and fail to allege sufficient facts to state a claim because Plaintiff fails to adequately allege that she sustained damages as a result of the alleged fraud and the claims are barred by the doctrine of res judicata. The first cause of action, as pleaded, is premised on two representations: (1) Defendant s alleged representation that Plaintiff would not be under any formal contractual obligation to formally pay [him] for any assistance or labor provided by [him] at [the] two rental properties in Saratoga ; ancl (2) Defenda nt s alleged representation that the only compensation expected for [his] assistance 'In repairs and plumbing work at [the] two rental properties in Sa ratoga would be in the form of [Plaintiff] occasionally pu rchasing meals ancl coffee for [Defenda nt], and doing his laundry. (Complaint, 28.) Plaintiff alleges that the representations were false, Defendant knew the representations were false at the time they were made, she relied on the representations, and she suffered resulting damages. (Id. at 27.) In the second cause of action, Plaintiff alleges that Defenda nt concealed the fact that he intended to formally charge [her] $30/hour for over 250 hours [of] work [performed] at [her] two rental properties,- fabricate a false contract between [them] for assistance provided at [Plaintiff s] two rental properties in Saratoga ,' fabricate dates of when he allegedly performed work on [her] two rental properties ; and fabricate lost wages of $1,200, lost hotel costs of $370, ancl lost travel expenses of $100. (Complaint, 31.) Plaintiff further alleges that Defenda nt had a duty to disclose these facts, she relied on the fraudulent concealment, and she was damaged by the fraudulent concealment. (Id. at 30.) As Defendant persuasively argues, Plaintiff s allegations are insufficient to demonstrate that she suffered damages as a result of the alleged misrepresentations or concealments. (See R. D. Reeder Lathing Co. v. Cypress Ins. Co. (1970) 3 Cal.App.3d 995, 999 [A plaintiff may recover for fraud when he shows that by reason of a defenda nt s misrepresentations [or concealments] he has sustained some pecuniary damage or injury by reason of having been put in a position worse than he would have occu pied had there been no fraud. ].) While Plaintiff alleges in a conclusory manner that she suffered da mages as a result of Defenda nt s conduct, this mere conclusion is not accepted as true on demurrer (George, supra, 201 Cal.App.4th at p. 1120,- Piccinini, supra, 226 Cal.App.4th at p. 688.) Furthermore, the specific factual allegations set forth in the complaint do not establish that Plaintiff suffered any damages as a result of Defendant s conduct. As Defenda nt points out, Plaintiff does not allege that she made any payments to Defenda nt in relia nce on the alleged misrepresentations or concealments that she would not have otherwise made. Additionally, Plaintiff does not allege that she incurred any costs or expenses as a result of her relia nce on the alleged misrepresentations or concealments. Thus, it is unclear from the allegations of the complaint what, if any, damages Plaintiff suffered as a result of Defendant s conduct. On this basis alone, the demurrer is sustainable. Notably, in light of the absence of sufficient allegations in the complaint regarding Plaintiff s alleged damages, it cannot be determined at this point in time, as a matter of law, whether the first and second causes of action are barred by the doctrine of res judicata. Res judicata, i.e. claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties and arises if a second suit Printed: 8/] 5/20] 8 08/14/20] 8 Hearing: Demurrer - l7CV31744] Page 4 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. (DKN Holdings LLC v. Faerber (2015) 61 Ca|.4th 813, 823, 824.) [F]or purposes of applying the doctrine of res judicata, [t] he cause of action is the right to obtain redress for a harm suffered, rega rdless of the specific remedy sought or the legal theory (common law or statutory) adva nced. (Boeken v. Philip Morris USA, Inc. (2010) 48 Ca|.4th 788, 798 (Boeken).) [T]he cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. Hence a judgment for the defenda nt is a bar to a subsequent action by the plaintiff based on the same injury to the sa me right, even though he presents a different legal grou nd for relief. Thus, under the primary rights theory, the determinative factor is the ha rm suffered. When two actions involving the sa me pa rties seek compensation for the same harm, they generally involve the same primary right. (Id. at pp. 797-98, internal citations ancl emphasis omitted; Federal Home Loan Bank of San Francisco v. Cou ntrywide Fina ncial Corporation (2013) 214 Cal.App.4th 1520, 1530-32 (Federal) [emphasizing that the cause ofaction is based upon the harm suffered].) Here, it is unclear from the allegations of the complaint what, if any, damages Plaintiff suffered as a result of Defenda nt s conduct. Thus, it cannot be said that the small claims case and the first and second causes of action of the complaint seek compensation for the same harm. Accordingly, Defenda nt s demurrer to the first and second causes of action is SUSTAINED, with 10 clay s leave to amend. IV. Third Cause of Action Defenda nt contends that the third cause of action fails to state a claim for intentional infliction of emotional distress because, [i]n this case, [Plaintiff s] allegations are simply unbelievable and illogical. (Mem. Ps. & As., p. 5:12-20.) Defendant also contends that the claim is barred by the doctrine of res judicata. Defendant s first argument is not weII-ta ken. On demurrer, the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align, supra, 179 Cal.App.4th at p. 958.) Thus, Defendant s argument that Plaintiff s allegations are unbelievable or illogical is beyond the scope of demurrer. Simila rIy, Defenda nt s second argu ment lacks merit. As stated above, for purposes of res judicata, cou rts look to whether the alleged harm suffered in the claims is the same in order to determine whether a plaintiff is attempting to relitigate the sa me cause of action in a second suit between the same parties. (Boeken, supra, 48 Ca|.4th at pp. 797-98; Federal, supra, 214 Cal.App.4th at pp. 1530-32.) In the third cause of action, Plaintiff alleges that she suffered severe or extreme emotional distress as a result of Defenda nt s attempt to sexually exploit ancl harass [her] during settlement discussions in the small claims case. (Complaint, 34.) Plaintiff further alleges that she suffered severe or extreme emotional distress clue to Defenda nt presenting false testimony and evidence to the small claims cou rt. (Id. at 35.) Thejudicially noticeable documents indicate that Plaintiff s small claims action sought to recover damages for harm suffered prior to the initiation of the small claims action; specifically, Plaintiff sought to recover damages for outsta nding rent, late payment fees, interest, cleaning fees, lock changing fees, a blanket, a drill, and punitive damages. (D s RJN, Ex. 1, p. 2 and Ex. 3, p. 3.) Therefore, it cannot be said that Plaintiff s small claims action ancl the third cause of action of the complaint seek compensation for the same ha rm. Accordingly, Defenda nt s demurrer to the third cause of action is OVERRULED. Printed: 8/15/2018 08/14/20] 8 Hearing: Demurrer - 17CV31744] Page 5 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER V. Fourth Cause ofAction Defenda nt argues that the fourth cause of action for violation of Business and Professions Code sections 7160 and 7161 is uncertain and fails to allege sufficient facts to state a claim because Plaintiff does not allege that she paid him any money for the plumbing services rendered; Plaintiff does not allege facts demonstrating that she sustained damages; and the claim is barred by the doctrine of res judicata. In opposition, Plaintiff implicitly concedes that Defenda nt s argu ments are weII-ta ken with respect to this claim as she simply states that she will be dismissing the fourth cause of action. (Opp n., p. 9:10-13.) Therefore, Defenda nt s demurrer to the fourth cause of action is SUSTAINED, without leave to amend. (See Goodman v. Kennedy (1976) 18 Ca|.3d 335, 349 [a court may sustain a demurrer without leave to amend ifa plaintiff fails to meet his or her bu rden to show in what manner the complaint can be amended and how that amendment will change the legal effect of the pleading].) VI. Fifth Cause of Action As previously articulated, Defendant demurs to the fifth cause of action on the grou nds of uncertainty and failure to allege facts sufficient to constitute a cause of action. However, Plaintiff dismissed the fifth cause of action from the complaint on January 29, 2018. Consequently, Defenda nt s demurrer to the fifth cause of action is MOOT. Printed: 8/] 5/20] 8 08/14/20] 8 Hearing: Demurrer - l7CV3l744] Page 6 0f 6