Adan Alvarez Services & Maintenance vs. Jansan Facility Solutions, Inc.

Demurrer to Complaint

Cal. Super. - 4th Dist.April 3, 2018

10 11 12 13 14 19 20 21 22 23 24 25 26 27 28 Katherine J. Odenbreit (SBN: 184619) kodenbreit@mahoney-law.net Edward E. Kim (SBN: 183022) ekim@mahoney-law.net Shooka Dadashzadeh (SBN: 317134) sdadashzadeh@mahoney-law.net MAHONEY LAW GROUP, APC 249 East Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone No.: (562) 590-5550 Facsimile No.: (562) 590-8400 Attorneys for Defendants JANSAN FACILITY SOLUTIONS, INC. and CHRISTINA VOLD SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER ADAN ALVAREZ SERVICES & MAINTENANCE,a California business entity, Plaintiff, Vv. JANSAN FACILITY SOLUTIONS, INC., a California corporation, CHRISTINA VOLD, an individual, and DOES 1 through 10, inclusive, Defendants. 1 Case No.: 30-2018-00983709-CU-BC-CJC DEFENDANTS JANSAN FACILITY SOLUTIONS, INC. AND CHRISTINA VOLD’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Assigned for all purposes to: Hon. Theodore Howard, Dept.: C18 Date: August 16, 2018 Tite: 1:30 p.m. Dept.: C18 Reservation No.: 72845608 Complaint Filed: Trial Date: April 3,2018 None Yet Set DEFENDANTS’ NOTICE OF DEMURRER TO PLAINTIFFS COMPLAINT 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 16,2018 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department C18 of the Orange County Superior Court, Defendants JANSAN FACILITY SOLUTIONS,INC., a California corporation (hereinafter “JANSAN”) and CHRISTINA VOLD,an individual, (hereinafter “VOLD,” collectively “DEFENDANTS”), will and hereby do demur, generally and specially, to Plaintiff ADAN ALVAREZ SERVICES & MAINTENANCE’s (hereinafter “ADAN” or “Plaintiff”) unverified Complaint for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Fraudulent Inducement and Unfair Business Practices. This demurrer is made pursuant to California Code of Civil Procedure section 430.10(¢) because Plaintiff has failed to state facts sufficient to constitute a cause of action as to Plaintiff’s first, second, third and f2ourth causes of action. This demurrer is further made pursuant to California Code of Civil Procedure section 430.10(f) in that the complaint is uncertain and ambiguous. Plaintiff also lacks standing such that the demurrer should be sustained without leave to amend. (Code Civ. Proc., § 430.10,(b)). Pursuant to California Code of Civil Procedure section 430.41(a), counsel for Defendants attempted to meet and confer with counsel for Plaintiff on June 22, 2018. (Declaration of Katherine J. Odenbreit (“Odenbreit Dec.”) § 2). Counsel for Plaintiff requested Defendants send an email identifying the issues for the demurrer. (Id). On June 28, 2018, Defendants sent a detailed email to Plaintiff’s counsel setting forth the issues to be addressed in the demurrer and invited counsel to discuss the matters further. (Odenbreit Dec., Ex. 1). As of the date ofthe filing of this demurrer, Plaintiff has not provided any response. (Odenbreit Dec., 2). 111 [11 111 [11 117 2 DEFENDANTS’ NOTICE OF DEMURRER TO PLAINTIFF'S COMPLAINT This demurrer is based upon this Notice of Demurrers and Demurrers, Memorandum of Points and Authorities, Declarations of Katherine J. Odenbreit and Christina Vold, all records, papers, and pleadings on file with this Court and all arguments presented to the court at the 19 20 21 22 23 24 25 26 27 28 hearing. Dated: July 9, 2018 By: 3 MAHONEY LAW GROUP, APC Vititoiort- Katherine J. Ode Attorneys for Defendants JANSAN FACILITY SOLUTIONS, INC. and CHRISTINA VOLD DEFENDANTS’ NOTICE OF DEMURRER TO PLAINTIFF'S COMPLAINT 20 21 22 23 24 25 26 27 28 DEMURRERS TO PORTIONS OF PLAINTIFF'S COMPLAINT Defendants JANSAN and VOLD hereby demur pursuant to California Code of Civil Procedure section 430.10, ef seq. and relevant case law on each of the following grounds set forth below: FIRST CAUSE OF ACTION 1. Defendant JANSAN generally demurs to Plaintiff’s First cause of action for Breach of Contract on the grounds thatit fails to state facts sufficient to constitute a cause of action for breach of contract. Cal. Code Civ. Pro. §430.010(e). 2 Defendant JANSAN generally demurs to the First Cause of Action on the ground that Plaintiff lacks standing. Cal. Code Civ. Pro. §430.010(b). 3. Defendant JANSAN specially demurs to Plaintiff’s First cause of action on the ground that it is uncertain. Cal. Code Civ. Pro. §430.010(f). SECOND CAUSE OF ACTION 1. Defendant JANSAN generally demurs to Plaintiff’s Second cause of action for Breach of Covenant of Good Faith and Fair Dealing on the grounds that it fails to state facts sufficient to constitute a cause of action. Cal. Code Civ. Pro. §430.010(e). THIRDCAUSEOF ACTION 1 Defendants JANSAN and VOLD generally demur to Plaintiff’s Third cause of action for Fraudulent Inducement on the grounds thatit fails to state facts sufficient to constitute a cause of action. Cal. Code Civ. Pro. §430.010(¢). 2 Defendants JANSAN and VOLD specially demur to Plaintiff’s Third cause of action for Fraudulent Inducement on the grounds that it is uncertain. Cal. Code Civ. Pro. §430.010(f). FOURTH CAUSE OF ACTION 1. Defendant JANSAN generally demurs to Plaintiff’s Fourth cause of action for Unfair Business Practices on the groundsthat it fails to state facts sufficient to constitute a cause of action. Code Civ. Proc., § 430.10,(e). DEFENDANTS’ DEMURRERS TO PLAINTIFF'S COMPLAINT 17 18 19 20 21 22 23 24 25 26 27 28 2. Defendant JANSAN specially demurs to Plaintiff’s Fourth cause of action on the ground that it is uncertain. Cal. Code Civ. Pro. §430.010(f). Dated: July 9, 2018 MAHONEY LAW GROUP, APC By: NbliindJt Katherine J. Genii Attorneys for Defefidants JANSAN FACILITY SOLUTIONS, INC. and CHRISTINA VOLD 2 DEFENDANTS’ DEMURRERS TO PLAINTIFF'S COMPLAINT 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS LINTRODUCTION.....cciiiiinuieririniieiesinsiinesiesmessessesssssnsss ssa saessssasserssstesssssssessassssassassisssssssssens 1 ILAPPLICABLE STANDARDS o.ooeterseessetsese en eans2 IIL .... PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS TO STATE SUFFICIENT FACTS A VALID CONTRACT EXISTS....ooivciiirrerireerieneerenns3 A. Plaintiff Cannot Lawfully Maintain this Action and Lacks Standing .........cccoveevviviiininnn+ IV....PLAINTIFF’S BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM FAILS TO STATE SUFFICIENT FACTS TO SUPPORT THE ALLEGATION ImmMMTTmmmImom4 ViPLAINTIFF'S THIRD CAUSE OF ACTION FOR FRAUDULENT INDUCEMENT] FAILS TO ALLEGE DEFENDANTS INTENDED NOT TO PAY TIMELY AT THE TIME THE CONTRACT WAS FORMED ....cccoiiiieieecreersires5 A. Plaintiff Fails to Allege Any Facts to Support Any Claim Against Defendant Christina Vold ndividuallVisusasisssamsisamssismimmsaessmssssssemismaaessasemiissa 0 B. Plaintiffs Claim for Fraud Fail Under the Economic Loss RULE cosmosswoon7 We sonammemmonsmn os PLAINTIFF'S FOURTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES FAILS AS IT IS BASED ON ALLEGATIONS OF FRAUDULENT INDUCEMENT....oottiittertestseetstiiessesiesseeseesessss ares esas ssasssasasassssssessessesssssssessansesssesssessasssesanss 7 A. Disgorgement of Profits Is Not an Available Remedy Under the UCL in an Individual AACHIONeterseeeshee eee sate b ee sete ne Sheba tetrasearseast eens 8 VIIL.......... PLAINTIFF IS NOT ENTITLED TO PUNITIVE DAMAGES OR ATTORNEYS’ BEES... cohvm 0 vo vor ms sms ss a pm a Se sh 4 S88 4 ODA RS BASHA 18SeERTAAYe9 AL AHOTNEYS” FOS.utterseectsesses sess e esas esas estes esate ease sass eerne snare sense enna naneans 9 B. Punitive Damages ........cceoverueremenieieieeieiesresiesseeiessesssessessessesassnssessesssessesssssessassnssnenssssssens ) VIII. DEFENDANTS’ SPECIAL DEMURRER FOR UNCERTAINTY SHOULD BE ......... SLISTAINED...commenaisnmrsrareSaiaeRAASRRae 10 IX.PLAINTIFF SHOULD NOT BE GRANTED LEAVE TO AMEND ......cc..coccevrenirennrens 10 Ke CONCLUSION...summariessammeiaasaniiesamsmmens 11 1 TABLE OF CONTENTS AND AUTHORITIES 18 19 20 21 23 24 25 26 27 28 TABLE OF AUTHORITIES Federal Cases Arena Restaurant and Lounge LLC v. Southern Glazer's Wine and Spirits, LLC, (N.D. Cal., Apr. 16, 2018, No. 17-CV-03805-LHK) 2018 WL 1805516......c..cevvveeeieiiirieireeeieeeeeeeeeeeccennes 8 Marshall v. Galvanoni, (E.D. Cal., Nov. 8, 2017, No. 217CV00820KJMCKD) 2017 WL STTTTOL. isis ismpiiiianasimittimsisbiiesosReeRTAThs 7 State Cases Aas v. Superior Court, (2000) 24 Cal.4th 627 ......cocveviiiiiiieiiiciieire irisessees seers ese eae re seen 7 Aubry v. Tri-City Hospital Dist., (1992) 2 Cal.4th 962 .......ccocviceieiieiiiiseiieee erect sees see sree 3 Bardin v. Daimlerchrysler Corp., (2006) 136 Cal.App.4th 1255......cciciiiiniiiericiiereeie see caeieseenns 9 Bauer v. Ventura County, (1955) 45 Cal.2d 276 .....ccoovuivcrieiierieeiesiesieessecseiesae sss ssne ses sasssssassens 10 Cantu v. Resolution Trust Corp., (1992) 4 Cal.App.4th 857 ....c..veriiiiiiieviiciceceecreereeie ines coml Careau & Co. v. Security Pacific Business Credit, Inc., (1990) 222 Cal.App.3d 1371.....ccccce0en § Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., (1999) 20 Cal.4th 163.9 County ofSanta Barbara v. David R., (1988) 200 Cal.App.3d 98.......ccovereiiieieeieeeeeeeceecee, 9 Davis v. Ford Motor Credit Co., (2009) 179 Cal.App.4th 581 ......ccooovviviiiiiiceeicieeevee, 9 Downen's, Inc. v. City ofHawaiian Gardens Development Agency, (2001) 86 Cal.App.4th 856.9 Durell v. Sharp Healthcare, (2010) 183 Cal.App.4th 1350 ...cceioiviiiieeiceceriesecre 8 Food Safety Net Services v. Eco Safe Systems USA, Inc., (2012) 209 Cal.App.4th 1118.............. 6 Frances T. v. Village Green Owners Assn., (1986) 42 Cal.3d 490 ........cocvviivrivvecnecieeieseee 7 George v. Automobile Club ofSouthern California, (2011) 201 Cal.App.4th 1112.......cccevvnneeee. “+ Goldstein vw. Healy, (1921) 187 Cal. 200 ......ci.cimiisiossmiscasssismmmmmensnsnsssassansnnsasensosenesssifiissishiisessih 10 Gomez v. Lincare, Inc., (2009) 183 Cal.App.4th 508, 525.....ccocovveviirecreieerene,dE4 Gregory v. Albertson's, Inc., (2002) 104 Cal.App.4th 845.......ooooiiieieeccereeserecei 8 Grieves v. Superior Court, (1984) 157 Cal.APp.3d. 139...mms susan cessspisnsineisronsviiiossisios soviiaiss 3,10 Johnson v. County ofLos Angeles, (1983) 143 Cal.App.3d 298.......coeiiiiiiiiciiiiiiienircrie creer, 11 Khoury v. Maly's ofCalifornia, Inc., (1993) 14 Cal.App.4th 612......cccooviciiiiiiiiiiecieceeine 3,10 2 TABLE OF CONTENTS AND AUTHORITIES 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Korea Supply Co. v. Lockheed Martin Corp., (2003) 29 Cal.4th 1134 .......oovvvivriiniiiiriciriennnee 9,11 Lazar v. Superior Court, (1996) 12 Cal.4th 63 1......coviiiiiriiiiiiiieerecctre resissreesae saan 6 Nolte v. Cedars Sinai Medical Center, (2015) 236 Cal.App.4th 1401 ......cccviiiivvrcinininninciiinenis 8 Otworth v. Southern Pac Transportation Co., (1985) 166 Cal.App.3d 452......ccccovmvvvieviiirinrcnnininns 3 Rakestraw v. California Physicians’ Service, (2000) 81 Cal.App.4th 39.......coiiiiiiiciiiiiiiineiin, 3 Robinson Helicopter Co., Inc. v. Dana Corp., (2004) 34 Cal.4th 979 .......ccccciiiiiiiiiiiniiins 6,7, 8 Service by Medallion, Inc. v. Clorox Co., (1996) 44 Cal.App.4th 1807 ...cccoviiiiiiiiiiiiiiiiiiien 6 Smith v. Kern County Land Co., (1958) 51 Cal.2d 205......c.ocoiiiiiiciiriiiirieeees recessessees 10 Smith v. Superior Court, (1992) 10 Cal.App.4th 1033...eects10 Stockton Mortgage, Inc. v. Tope, (2014) 233 Cal.App.4th 437 ...oovvieiiiciireeceesiaesse sna 4 Tarmann v. State Farm Mut. Auto. Ins. Co., (1991) 2 Cal.App.4th 153 corinne, 6 United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., (1970) 1 Cal.3d 586 ......cccccevverereecrnicnnnne 7 Wise v. Southern Pac Ca, (1963) 223 CalAPPZ 50 ommmmssssesmssmmsmsmsmsmmasssisssmspssapamsss 10 State Statutes Bus. & Prof. Code, § 17200... iiiiiiiicirieecieiose iste ssaecus esses etas erase esas ssssae sss ssasesssessaessssessassssessaes 8 Bus. & Prof. Code, § 17918...eectsesses erase essa sean ese sba ess ane sense anes esenes 4,11 Code Civ. ProcC., § 430.10...iircceceetter eee eae eres sae sense sms e snes sansa sme e ese a sss srnesenneraen 1,2 Code Civ. Proc., § 430.1001) ..ccuuiiirieiiiieeiiiiecreesttaeseesseeree sss esas esesse sass ssesa anna ssssesssasssssasssssessens 1.2 Code (Civ. PIog..-8 4301A)ores rmmrmemmasmpmmismr msmsmsssssmsdissesmsSs Rr aba Ras 1,2.3 Code Civ. Proc., § 430.1 Of) «ccuvsosiimpmmanasmmmarisenmasa 1,2,3,8,10 Code Civ. Proc. § 430.1008) cowswnsairmanmmmmsrpmissaise 3 Code Civ. Proc., § 430:41{a) cu crmesiimmimmmmsdsminscETTRRees 2 Code Civ. Proc., § 43608) «us rusmumesssnesssdii iosmiamissasissess snotsimsiesasiiaeasas 3 Code Civ, Prog; § 102 |ummmdoisemsmss iisiisssssesscvsmis saved dears 9 Code Cv, Proc. § 1550emesisseseds cau sieseis avarlomin sdsaN aie Sania 4 Code Civ, PYOC., § TOD csnunmmrs smrmrrenios sue bisooowanes aussi sive ss usvs aussi ois s SrA iiss sianavies 4 3 TABLE OF CONTENTS AND AUTHORITIES 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTION On April 3, 2018, Plaintiff ADAN ALVAREZ SERVICES & MAINTENANCE (“ADAN™) filed a complaint against JANSAN FACILITY SOLUTIONS, INC., a California corporation alleging four causes of action :(1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) fraudulent inducement; and (4) unfair business practices. ADAN further alleges against Defendant CHRISTINA VOLD, an individual, a cause of action for fraudulent inducement. The foundation of Plaintiff's action is an alleged “agreement” between two business entities: Adan Alvarez Services and JanSan Facility Solutions. (See Docket No. 2, Complaint). Attached as Exhibit 1 to the Complaint is the alleged written agreement between the parties that is unsigned by Plaintiff. (Complaint § 10, Ex. 1). Plaintiff did not sign the agreement and the Defendant subsequently requested amendments to the terms for the special services set forth in the alleged agreement. However, the agreement alleged in the complaint was never finalized by the parties and therefore, there is no valid written contract upon which suit can be brought. The | complaint does not specify whether the contract is written, oral, or implied rendering the complaint uncertain. (Code Civ. Proc., § 430.10, sub. (f) and (g).) Further, the invoices submitted in Ex. 1 of the complaint to the extent they are purported to be part of the “contract” are payable to a different entity, “AA Services & Maintenance”. (Complaint, Exhibit 1). As set forth herein, this entity’s fictitious business statement does not belong to Plaintiff and there is no such fictitious business name registered to Plaintiff precluding its ability to maintain this action and Plaintiff lacks standing. Plaintiff’s second cause of action for breach of the covenant of good faith and fair dealing also fails to state sufficient facts upon which such a claim may be brought. There is no additional remedy or alleged facts distinct from the breach of contract claim to support this cause of action. This cause of action is supported by the same facts as the breach of contract claim. As set forth below, every contract contains a covenant of good faith and fair dealing yet to support a cause of action there must be something more than a failure to comply with the terms of the contract. 1 MEMORANDUM OF POINTS AND AUTHORITIES 20 21 22 23 24 25 26 27 28 Plaintiff brings its third cause of action for fraudulent inducement against both Defendants, including Ms. Vold, as an individual. This was an alleged business to business transaction and the third cause of action contains no facts to support the claim of fraudulent inducement, much less that Ms. Vold could be held personally liable. There are no facts set forth to support the contention that Ms. Vold, or JanSan had any intent to pay under the contract at the time it was formed. In fact, in the complaint, Plaintiff alleges payments were made under the “contract”. (Complaint § 14.). Therefore, the third cause of action fails for failure to state facts sufficient to support a claim against both Defendants. Finally, Plaintiff’s fourth cause ofaction fails to state facts sufficient to support the alleged “unfair and unlawful business practice” of misrepresentation as indicated with regard to the fraudulent inducement. As that claim fails, there is no “unfair or unlawful” business practice upon which to base this cause of action. Further, disgorgement of profits and Plaintiff’s prayer for attorneys’ fees under the UCL are barred as a matter of law and should be stricken. Asset forth in detail below, Defendants’ general and special demurrers should be granted with prejudice and leave to amend should be denied. IL. APPLICABLE STANDARDS A general demurrer challenges the legal sufficiency of the complaint on the grounds it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10,( e)). While a demurrer accepts as true all properly pled allegations of a complaint, “|T]he court does not, however, assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri- City Hospital Dist. (1992) 2 Cal.4th 962, 967.) A plaintiff “must state with reasonable particularity the facts supporting the statutory elements of the violation” and those facts must not be vague or conclusory. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619; Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430,(f)). The term “uncertain” includes the issue of whether a pleading is “ambiguous and unintelligible” and should be sustained if the complaintis drafted in such a manner that the defendant cannot reasonably respond. (Code Civ. Proc., § 2 MEMORANDUM OF POINTS AND AUTHORITIES 24 25 26 27 28 430,(f); Khoury, supra, 14 Cal.App.4th 612). In addition, the Court may strike a request for punitive damages and attorneys’ fees if the facts alleged do not support this relief. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166; Code Civ. Proc., § 436,(a) [authorizing Court to “[s]trike out any irrelevant, false or improper matter inserted in any pleading.”) III. PLAINTIFF'S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS TO STATE SUFFICIENT FACTS A VALID CONTRACT EXISTS A cause of action for breach of contract requires the pleading ofa valid contract. A written contract may be pleaded either by its terms set out verbatim in the complaint or a copy of the contract attached and properly incorporated by reference. (Otworth v. Southern Pac Transportation Co. (1985) 166 Cal.App.3d 452, 459.) Code of Civil Procedure section 430.10(g) provides a demurrer should be sustained “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” The elements for a breach of contract action are: (1) parties are capable of contracting; (2) mutual consent; (3) a lawful object; (4) sufficient cause or consideration; (5) plaintiff's performance or excuse for failure to perform; (6) defendant’s breach; and (7) damages. (Civ. Code, § 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 183 Cal.App.4™ 508, 525.) Here, the alleged “contract” is not signed by Plaintiff. (Complaint, Ex. 1). In fact, JanSan subsequently repudiated the contract, including the specific term upon which Plaintiff relies heavily in its complaint: the 5% late fee charges. (Declaration of Christina Vold (“Vold Dec.” § 3, Ex. 1). Because the contract is not signed by Plaintiff and Defendant subsequently disputed the contract the agreement was never finalized by the parties and therefore is no written contract upon which this claim can be based. Therefore,it is uncertain from the pleadings whether Plaintiff alleges their contract is written, oral or implied. At the demurrer stage, the court must conditionally consider parol evidence to determine if it would be relevant to determine whether the agreement is susceptible to the interpretation alleged by the plaintiff in the complaint. (George v. Automobile Club ofSouthern California (2011) 201 Cal.App.4th 1112, 1122.) Here, the email 3 MEMORANDUM OF POINTS AND AUTHORITIES 20 21 22 24 25 26 27 28 from Ms. Vold shows the alleged contract unsigned by Plaintiff was repudiated by Defendants such that there is no written contract upon which suit can be brought. Where a defendant negates any essential element of a particular cause of action the court should sustain the demurrer as to that cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) The alleged “written agreement” does not constitute a valid contract and therefore cannot be the basis of the breach of contract cause of action. We are left without facts to determine whether Plaintiff contends the contract is written, oral or implied and as such the demurrerto the first cause of action should be sustained. A. Plaintiff Cannot Lawfully Maintain this Action and Lacks Standing Further, as part of the “agreement” and allegations of breach, Plaintiff submits various invoices it alleges were unpaid by JanSan constituting the breach of contract. (Complaint, Ex. 1). However, the alleged unpaid invoices list the “supplier” as “AA Services & Maintenance”, and not Plaintiff Adan Alvarez Services. In fact, AA Services & Maintenance is a business entity that does not exist on file with the Orange County Recorder. (Defendants’ Request for Judicial Notice (“RINEx. 1). Bus. & Prof. Code, § 17918 prohibits any person from maintaining an action in any court under a fictitious business name until the fictitious business name statement has been filed, executed, and published as required by law. Here, the alleged unpaid invoices are in the name of AA Services & Maintenance which is different from Plaintiff’s entity name, Adan Alvarez Services. No such fictitious business name exists for AA Services & Maintenance in the County of Orange. (RJN Ex. 1). Further, the fictitious business name of “AA Services” is not registered to Mr. Alvarez but is registered to Adolfo Arenas with an entirely different address listed. (RJN Ex. 2). As Plaintiff is prohibited by law from maintaining any action for recovery by a fictitious business name that is not properly registered and therefore lacks standing, the demurrer should be sustained as to all causes of action with prejudice. IV. PLAINTIFF’S BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM FAILS TO STATE SUFFICIENT FACTS TO SUPPORT THE ALLEGATION The covenant of good faith and fair dealing exists in every contract and while a breach of 4 MEMORANDUM OF POINTS AND AUTHORITIES 24 25 26 27 28 the covenant will always result in a breach of the contract, the breach of a contract term will not necessarily result in a breach of the covenant. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393-94.) In order to support a cause of action for breach of the covenant of good faith and fair dealing, the alleged breach must involve something beyond the breach of a contractual duty itself. (/d. at 1394.) Here, Plaintiff’s allegation to support its cause of action for breach ofthe covenant of good faith and fair dealing rests on the same facts as the breach of contract: alleged non-payment of invoices for services. (Complaint § 23-25, 30). Since this cause of action cannot be maintained upon the breach of a contractual term and Plaintiff’s complaint contains no other allegations beyond the non-payment, the demurrer to this cause of action should be sustained without leave to amend. Vv. PLAINTIFF'S THIRD CAUSE OF ACTION FOR FRAUDULENT INDUCEMENT FAILS TO ALLEGE DEFENDANTS INTENDED NOT TO PAY) TIMELY AT THE TIME THE CONTRACT WAS FORMED An action for promissory fraud must allege: (1) a knowingly false representation by defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) Every element must be specifically pleaded to survive a demurrer. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) It must be pled specifically that at the time the promise was made the defendant’s intent was not to perform the promise. (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1131.) A party alleging fraud or deceit in connection with a contract must establish tortious conduct independent of the breach itself and the conduct is in violation of some independent duty arising from tort law. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) Here, Plaintiff's specific allegations indicate the “intent” not to pay timely arose sometime after the contract was formed and not at the time of formation “Defendants” continued failure to fulfill its written and oral promises made at the time of contracting with Plaintiff, which makes them liable for fraudulent inducement.” (Complaint § 34). This statement indicates at some point after the agreement was made, Defendants decided not to pay timely. In fact, in its complaint, 5 MEMORANDUM OF POINTS AND AUTHORITIES 20 21 22 23 24 25 26 27 28 Plaintiff admits there were payments made to it by JanSan which contradict its allegations of fraudulent inducement. (Complaint § 17). Fraud must be pled with specificity and not in a general or conclusory way and the case of fraudulent inducement, it must be pled specifically that the intent to defraud was formed at the time the agreement was formed. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 644.) Here, there are no facts to support a claim for fraudulent inducement and the demurrer should be sustained without leave to amend. A. Plaintiff Fails to Allege Any Facts to Support Any Claim Against Defendant Christina Vold Individually The sole claim against Defendant Christina Vold appears in Plaintiffs third cause of action for fraudulent inducement. (Complaint 9 33-39). The only factual allegations relating to Ms. Vold individually are: “...Christina Vold (“Ms. Vold”) President of JanSan, negotiated the terms of the Agreement, in which Ms. Vold fraudulently represented that JanSan would pay AA Servicesforits services on a timely basis.” (Complaint § 10). In the third cause of action, Plaintiff makes another conclusory statement that “Defendants entered into a written agreement with Plaintiff, in which they misrepresented their intention to pay Plaintiffon a timely basis for services rendered by Plaintiff, according to the terms of the Agreement, Defendants’ representations were false, or made recklessly without regard for the truth.” (Complaint § 35). Plaintiff’s allegations describe a business-to-business dispute. (Complaint 9 5-6). Plaintiff alleges the two business entities entered into the “agreement”. (Complaint § 10). Plaintiff acknowledges Ms. Vold is the president of JanSan Facility Solutions, Inc. (Complaint § 10). As discussed above, the complaint is completely void of any facts that any Defendant, including Ms. Vold, had any intent to defraud Plaintiff and induce it into the agreement. The Complaint fails to state any statements made by Ms. Vold other than the general assertion the Defendants “misrepresented their intention to pay Plaintiff on a timely basis...” (Complaint § 35). There are no facts alleged that support a claim for any liability as to Ms. Vold as an individual. Directors and officers of a corporation do not incur personal liability for the acts of a corporation. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 595.) The legal fiction of a corporation as a dependent entity is intended to insulate corporate officers 6 MEMORANDUM OF POINTS AND AUTHORITIES 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | from personalliability. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 508.) | The only way Plaintiff could attach liability to Ms. Vold individually is through the alter ego doctrine. Plaintiff’s complaint fails to set forth any facts or even allege the alter ego doctrine applies. For the reasons set forth above, the demurrer on behalf of Ms. Vold individually should be sustained without leave to amend. B. Plaintiffs Claim for Fraud Fail Under the Economic Loss Rule Under the economic loss rule, a plaintiff suffering only economic damages is precluded from recovering in tort for a breach of contract by merely restating the contractual obligations. (Aas v. Superior Court (2000) 24 Cal.4th 627, 643, superseded by statute on other grounds.) The purpose of the economic loss rule is to prevent the laws of contract and torts from dissolving one another by precluding a claim in tort seeking recovery ofpurely economic loss due to disappointed expectations when the claim is based on a breach of a contractual term. (Robinson Helicopter Co., Inc., supra, 34 Cal.4th at p. 988; Marshall v. Galvanoni (E.D. Cal., Nov. §, 2017, No. 217CV00820KIMCKD) 2017 WL 5177764, at *5-6.) When a plaintiff seeks the same economic losses arising from the alleged breach of contract without setting forth facts to show the breach of a duty independent from the contract, fraud claims are barred and should not be permitted to proceed. (Arena Restaurant and Lounge LLC v. Southern Glazer's Wine and Spirits, LLC (N.D. Cal., Apr. 16, 2018, No. 17-CV-03805-LHK) 2018 WL 1805516, at *6.) Here, Plaintiff bases the fraudulent inducement claim on the same facts as its breach of contract claim, failure to pay on a timely basis. (Complaint §Y 36-36). There is no independent breach alleged and Plaintiff is only seeking the economic damagesas a result ofthe alleged failure to pay timely and the same damages are sought. Therefore, the demurrer should be sustained without leave to amend. VI. PLAINTIFF’S FOURTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES FAILS AS IT IS BASED ON ALLEGATIONS OF FRAUDULENT INDUCEMENT It is uncertain whether Plaintiff seeks to base its fourth cause of action on the “unfair”, “unlawful” or “fraudulent” prong of Business & Professions Code § 17200. (Code Civ. Proc., § 7 MEMORANDUM OF POINTS AND AUTHORITIES 19 20 21 22 23 24 25 26 27 28 430.010(f)). Plaintiff alleges Defendant JanSan violated California’s Unfair Competition Law (“UCL”) by “misrepresenting to Plaintiff that it would pay Plaintiff for its services rendered, according to the terms ofthe Agreement butfailing to do so.” (Complaint § 41). Plaintiff furthers this allegation by stating “Defendant has violated the UCL by failing and refusing to pay Plaintiff for services rendered, according to the terms of the Agreement between the parties and fraudulently inducting Plaintiff to enter into the Agreement, based upon Defendant’s false promises.” (Complaint § 44). As set forth in detail above, a fraudulent inducement claim cannot proceed unless it can be shown there has been a breach independent of the contract terms themselves. (Robinson Helicopter Co., Inc., supra, 34 Cal.4th 979.) The UCL does not independently proscribe specific acts, but broadly prohibits any unlawful or unfair business practice and borrows the “violations” from other acts forbidden by law or deemed to be unfair acts or practices. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359; Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845, 851.) The test for fraud under the UCL is there the public is likely to be deceived. (Nolte v. Cedars Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1409.) Plaintiff has failed to allege facts to show the public was likely to be deceived such thatthis claim must fail. (Bardin v. Daimlerchrysler Corp. (2006) 136 Cal.App.4th 1255, 1271.) Also, asset forth above, Plaintiff has failed to plead sufficient facts to support a claim for fraudulent inducement upon which its UCL claim rests. As the predicate claim fails, so does the UCL claim. (Bardin, supra, 136 Cal.App.4th 1255.) A. Disgorgement of Profits Is Not an Available Remedy Under the UCL in an Individual Action Plaintiff seeks disgorgement of “ill-gotten gains” through its UCL claim. (Complaint 46, Prayer, §7). Disgorgement of profits is not an available remedy in an individual action under the UCL. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-49.) As such, Plaintiff’s fourth cause of action failsto state a claim upon which such relief can be granted and Defendant’s demurrer should be sustained, without leave to amend. 111 I 8 MEMORANDUM OF POINTS AND AUTHORITIES 19 20 21 22 23 24 25 26 27 28 VII. PLAINTIFF IS NOT ENTITLED TO PUNITIVE DAMAGES OR ATTORNEYS’ FEES A. Attorneys’ Fees Plaintiff seeks attorneys’ fees under the UCL, fourth cause of action. (Complaint § 46). Under the “American Rule” attorneys’ fees are only recoverable if authorized by statute or expressly under contract. (Code Civ. Proc., § 1021; Downen's, Inc. v. City ofHawaiian Gardens Development Agency (2001) 86 Cal.App.4th 856, 860; County of Santa Barbara v. David R. (1988) 200 Cal.App.3d 98, 101.) Here, the alleged contract does not expressly provide for attorneys’ fees. (Complaint, Ex. 1). No reference is made in the Complaint to any statute that permits recovery of attorneys’ fees. The UCL does not provide for attorney fees. The relief is limited to injunctive relief and restitution. (Davis v. Ford Motor Credit Co. (2009) 179 Cal.App.4th 581, 600; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.) Therefore, Plaintiff’s prayer for attorneys’ fees should be stricken without leave to amend. B. Punitive Damages Plaintiff seeks punitive damages but has failed to allege the predicate facts necessary to support such an award. (Complaint § 39). Mere assertions an intentional tort was committed are not sufficient to warrant a claim for punitive damages. (Grieves, supra, 157 Cal.App.3d at p. 166.) Without any factual assertions to support a claim for punitive damages, the Court should strike this prayer for relief. (Grieves, supra, 157 Cal.App.3d 159 (reversing denial of motion to strike punitive damage claim because “[n]ot only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim”); Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042 (directing Superior Court to strike prayer for punitive damages because the complaint was “devoid of any factual assertions supporting conclusion [defendants] acted with oppression, fraud, or malice.”) Asset forth above, Plaintiff’s Complaint does not state facts sufficient to support a claim for fraudulent inducement. As such, there is no basis for a prayer of punitive damages and Defendants” demurrer should be sustained without leave to amend and any reference to punitive 9 MEMORANDUM OF POINTS AND AUTHORITIES 20 21 22 23 24 25 26 27 28 damages stricken. VIII. DEFENDANTS’ SPECIAL DEMURRER FOR UNCERTAINTY SHOULD BE SUSTAINED A special demurrer challenges other defects in the complaint, including whether the pleading is uncertain. (Code Civ. Proc., § 430.10,(f)). “Uncertainty” includes the issue whether the pleading is “ambiguous and unintelligible”. (Ibid) A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied. (Khoury, supra, 14 Cal.App.4th at p. 616.) To defeat a special demurrer, the complaint must contain essential facts of the case with reasonable precision and with particularity sufficiently specific to acquaint defendant with the nature, source, and extent ofeach cause ofaction. (Goldstein v. Healy (1921) 187 Cal. 206, 210; Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) Itis an issue offairness so as to give defendant such notice by the complaint that he may prepare his case. (Bauer v. Ventura County (1955) 45 Cal.2d 276, 291; Wise v. Southern Pac. Co. (1963) 223 Cal.App.2d 50, 63.) Here, Plaintiff’s first, third, and fourth causes of action consist of conclusory and vague statements related to alleged fraud. Plaintiff’s fourth cause of action is based exclusively on its fraud allegations. However, the complaint fails to state any facts to specifically identify the statements made and how it was “induced”into the contract by these statements. The complaint further fails to allege any facts other than conclusory statements to show Defendants formed the intent not to pay as the contract provided at the time it was formed. Based on these general statements Defendants are unable to determine the basis for any fraud allegations and therefore are unable to respond. As such, Defendants’ special demurrer should be sustained. IX. PLAINTIFF SHOULD NOT BE GRANTED LEAVE TO AMEND There is no abuse of discretion to sustain a demurrer without leave to amend when there is no cause of action stated by law and where there is no possibility the defect can be cured. (Wilhelm, Id. at p. 1332; Johnson v. County ofLos Angeles (1983) 143 Cal.App.3d 298, 306.) As set forth herein, all of Plaintiff's claims are based on the premise there is a valid 10 MEMORANDUM OF POINTS AND AUTHORITIES 20 21 22 23 24 25 26 27 28 contract. Ifthere is no valid contract, there are no claims. Additionally, ifPlaintiffhas no standing to enforce the alleged contract because ofits failure to properly register a fictitious business name as required by law, the action cannot be maintained. (Bus. & Prof. Code, § 17918). These defects cannot be cured by an amendment. As such, Defendants’ demurrers should be sustained in their entirety and leave to amend should be denied. X. CONCLUSION For the reasons set forth herein, Defendants respectfully request the Court sustain its demurrer and dismiss the complaint with prejudice. Dated: July 9, 2018 MAHONEY LAW GROUP, APC btaidJp Katherine J. Oder)oi Attorneys for estiants JANSAN FACILITY SOLUTIONS,INC. and CHRISTINA VOLD 11 MEMORANDUM OF POINTS AND AUTHORITIES 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civ. Proc. § 1013a, subd. (3) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 249 East Ocean Boulevard, Suite 814, Long Beach, California, 90802 On July 9, 2018, I served [X] true copies [ | originals ofthe following document described as: DEFENDANTS JANSAN FACILITY SOLUTIONS, INC. AND CHRISTINA VOLD’S NOTICE OF DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES. The document was served on the interested parties in this action, addressed as follows: Attorneys for Plaintiff ADAN ALVAREZ Pamela Tahim Thakur, Esq. SERVICES & MAINTENANCE Thakur Law Firm, APC 135 S. State College Blvd., Ste. 200 Telephone: (714) 772-7400 Brea, CA 92821 Facsimile: (714) 333-4943 Email: pamela@thakurlawfirm.com DX By overnight delivery: I enclosed the document(s) in an envelope or package provided by Federal Express and addressed to the person(s) at the addresses above. I then placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box ofthe overnight delivery carrier. DX By electronic service: Based on a court order, I caused the document(s) to be sent to the persons at the electronic service addresseslisted above by transmission through ONE LEGAL. X] (State): I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on July 9, 2018 at Long Beach, California. 5 . ¥ Nicole Pierson PROOF OF SERVICE