Charles D. Marshall (State Bar No.

236444)
1 MARSHALL LAW FIRM
2 2121 N. California Blvd., Suite 290
Walnut Creek, CA 92596
3 Telephone: (925) 575-7105
Facsimile: (855) 575-7105
4 cdm@marshall-law-firm.com
5 Attorney for Plaintiffs/Cross-Defendants
KEITH PEARCE and JONI PEARCE
6
7

SUPERIOR COURT IF THE STATE OF CALIFORNIA

COUNTY OF CONTRA COSTA

UNLIMITED CIVIL CASE

10
11 KEITH PEARCE and JONI PEARCE, as
individuals,
12
Plaintiffs,
13
vs.
14
RAVINDRA REDDY a.k.a. Robbi Reddy, and
15 DOES 1 through 100.
16

CROSS-DEFENDANTS KEITH AND

JONI PEARCES MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF DEMURRER TO SECOND
AMENDED CROSS COMPLAINT

Defendants.

17
18 RAVINDRA REDDY a.k.a. Robbi Reddy, an
individual,
19
Cross-Complainant,
20
vs.
21
KEITH PEARCE and JONI PEARCE, as
22 individuals and DOES 1-100
23

Case No. CIVMSC 14-00208

Date:
Time:
Location: Dept. 21
Judge: Judge Jill Fannin
Trial Date: February 1, 2016

Cross-Defendants.

24
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

TABLE OF CONTENTS

1
2

I.

INTRODUCTION ...

II.

FACTUAL BACKGROUND .

III.

LEGAL STANDARD ..

6 IV.

ARGUMENT

A.

Defendants Claims for Breach of Contract, Contributory Negligence

and Intentional Infliction of Emotional Distress Were Dismissed
Without Leave to Amend, and Thus Improperly Plead Here ... 6

B.

Defendants Third Cause Of Action, For Fraud And Deceit,

Is Uncertain Because It Lacks The Required Specificity
Facts Sufficient to State A Claim . 6

C.

Defendants Third Cause Of Action, For Fraud And Deceit,

Also Fails To State Facts Sufficient To State A Claim 8

3
4
5

8
9
10
11
12
13

V.

CONCLUSION . 11

14
15
16
17
18
19
20
21
22
23
24
25
26
i
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

TABLE OF AUTHORITIES

2 California State Opinions

Blatty v. New York Times Co.
3
(1986) 42 Cal.3d 1033 .................................................................................................................. 5
4
City of Pomona v. Superior Court
5
(2001) 89 Cal.App.4th 793 ........................................................................................................... 5
6 Coffman Specialties, Inc. v. Department of Transportation
(2009) 176 Cal.App.4th 1135 ....................................................................................................... 6
7
Committee on Children's Television, Inc. v. General Foods Corp.
8
(1983) 35 Cal.3d 197 .................................................................................................................... 7
9 Consumer Cause, Inc. v. Arkopharma, Inc.
10
11

(2003) 106 Cal.App.4th 824 ......................................................................................................... 5

Dalton v. East Bay Mun. Utility Dist.
(1993) 18 Cal.App.4th 1566 ......................................................................................................... 6

12 Goldrich v. Natural Y Surgical Specialties, Inc.

13
14

(1994) 25 Cal.App.4th 772 ........................................................................................................... 7

Goodman v. Kennedy
(1976) 18 Cal.3d 335 .................................................................................................................... 5

15
16

Hall v. Department of Adoptions

(1975) 47 Cal.App.3d 898 ............................................................................................................ 7

17 Halvorsen v. Aramark Unif. Servs.

(1998) 65 Cal.App.4th 1383 .................................................................................................... 9, 10
18
Heckendorn v. City of San Marino
19
(1986) 42 Cal.3d 481 .................................................................................................................... 6
20 Hendy v. Losse
(1991) 54 Cal.3d 723 .................................................................................................................... 5
21
Lavine v. Jessup
22
(1958) 161 Cal.App.2d 59 ............................................................................................................ 7
23 Roberts v. Ball, Hunt, Hart, Brown & Baerwitz
24
25

(1976) 57 Cal.App.3d 104 ............................................................................................................ 7

Vandervort v. Farmers & Merchants Nat'l Bank
(1936) 7 Cal.2d 28 ........................................................................................................................ 8

26
ii
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

California State Statutes

Cal. Code Civ. Proc., section 430.30 ............................................................................................... 5

Civ. Code, section 1709 ............................................................................................................. 8, 10

3 Civ. Code, section 1950 ................................................................................................................... 5

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
iii
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

MEMORANDUM

1
2

Plaintiffs and Cross-Defendants Keith and Joni Pearce (hereinafter the Plaintiffs), by and

3 through their attorney, respectfully ask the Court to dismiss Defendant and Cross-Plaintiff
4
Ravindra Reddys (hereinafter Defendant) Second Amended Cross Complaint (SACC) for
5
Breach of Contract; Fraud; Contributory Negligence; and Infliction of Emotional Distress in its
6
entirety.
7
8 I.

INTRODUCTION

Plaintiffs rented a property for three months from the landlord Defendant. As part of the

10 lease agreement, Plaintiffs paid Defendant a $4,100 security deposit. At the end of the lease
11

agreement, Defendant claimed Plaintiffs did $899 in damage to the property, and informed

12
Plaintiffs that he would keep that portion of the security deposit, admitting the remaining
13
14

$3,201was due to Plaintiffs. 1 Despite the admission, however, Defendant refused, and continues to

15 refuse, to refund any portion of the deposit, demanding Plaintiffs sign a release and waiver of
16 rights to receive even the amount of the deposit Defendant is obligated to pay Plaintiffs under
17 contract and statute. Defendant also refused to honor an agreement to rebate part of Plaintiffs last
18 months rent, a promise he made in exchange for Plaintiffs early vacation of the leased premises.
19

As a result, Plaintiffs sued Defendant for breach of contract, fraud, conversion, and violation of

20
landlord tenant statutes, seeking all civil penalties and remedies allowed under law.
21
In response, Defendant continues to refuse to refund even that portion of the security

22

23 deposit to which he admits he has no claim, and instead has now made three efforts to file a Cross
24

Plaintiffs dispute that any of damage was done to the leased property, but as required, for the
25 purposes of Defendants demurrer, treat Defendants allegation as true.
26
1
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

Complaint. On March 5, 2015, this court entered an Order sustaining, with prejudice, Plaintiffs

2 demurrer to all but one of Defendants claims in his First Amended Cross Complaint. See copy of
3 the unopposed tentative order dated March 5, 2015, attached hereto as Exhibit A. Nonetheless,
4 Defendants SACC repleads all of the same claims from the first claim, regardless of the fact that
5 he was not granted leave to amend his causes of action for Breach of Contract, Contributory
6
Negligence, or Intentional Infliction of Emotional Distress. The only claim Defendant was
7
granted leave to amend was the claim for Fraud and Deceit, and that claim fails for all the same
8
reasons it did in the First Amended Cross Complaint.
9
For the reasons discussed in more detail below, Defendants SACC cannot stand and there

10

11 are no facts under which Defendant can amend to cure the deficiencies. Accordingly, Plaintiffs
12 demurrer should be sustained without leave to amend.
13

II.

14

FACTUAL BACKGROUND
In June 2013, Plaintiffs moved to California and sought a furnished rental property for

15
16

temporary lease while looking for a house to buy. See CC 7; FACC 8, 9; and SACC 8, 9.

17 On June 26, 2013, Plaintiffs entered into a Residential Lease Agreement (Lease Agreement)
18 with Defendant for the property known as 1973 Ascot Drive, Unit B, Moraga, California.
19 (Leased Property). CC 8 and Ex. A; FACC 11 and Ex. A.; and SACC 7, 11; and RJN,
20 Ex. A. 2 The term of the Lease was three monthsbeginning August 1, 2013 and ending on
21
22

Defendant attached the Lease Agreement and other documents as exhibits to the original CC and
23 the FACC , but did not attach it to the SACC. Plaintiffs claimseven his claim for Fraud and
Deceitrely heavily on the Lease Agreement. In actions based on a contract, a demurrer is
24 properly sustained where the complaint or cross complaint fails to attach the subject contract. See,
25 Coconut Global v. Banca Fin., Defendant And Respondent, 2007 Cal. App. Unpub. LEXIS 4464,
7 (Cal. App. 4th Dist. June 1, 2007); citing to Otworth v. Southern Pac. Transportation Co. (1985)
26 (footnote continued)
2
27
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
28

CASE NO. CIVMSC 14-00208

October 31, 2013 with an option to renew month-to-month afterward if necessary. See CC 9,

3
2 Ex. A, 4 and 13; FACC 13, Ex. A, 4 and 13; RJN, Ex. A.

The Leased Property was to be occupied by Plaintiffs Keith and Joni Pearce, their children

4 Alden and Nathan, as well as one cat and one dog. See, CC 8, Ex. A, 5; FACC 11, Ex. A, 5;
5 SACC 11, RJN, Ex. A, 5.The rent, $3,600 per month, was due the 1st of each month, with the
6
last months rent paid in advance. See, CC 9; FACC 12, Ex. A, 6 and 9(c); SACC 12; and
7
CDM Decl. Ex. A, 6 and 9(c). Plaintiffs also paid Defendant a security deposit of one months
8
rentor $3,600and an additional $500 for a pet deposit. The total deposit paid by Plaintiffs to
9
10 Defendant is $4,100 (referred to hereinafter as the Security Deposit). See CC 9; FACC 12,
11 Ex. A, 9(A); SACC 12. The Lease states that the Security Deposit is intended to pay the cost
12 of damages, cleaning, excessive wear and tear, and unreturned keys once the Lease Agreement has
13
14

ended and/or for any unpaid charges due by reason of Tenants default of this Lease Agreement.
See, CC 16; FACC 22, Ex. A 9(B); SACC 23; and RJN, Ex. A, 9(B).

15
16
17

In September 2013, Plaintiffs notified Defendant that they were under contract to purchase
a new home and would terminate their lease on October 31, 2013, per the Lease terms. CC 10;

18
19
166 Cal.App.3d 452, 458-459. In any event, Plaintiffs attach true and correct copies of the
documents Defendant previously attached to its cross-complaints to the Plaintiffs Request for
21 Judicial Notice Supporting Demurrer to Second Amended Cross Complaint (RJN).
3
It should be noted that Defendant eliminated from this version of his cross-complaint the
22 allegation that the agreed rental period was for three months. This obvious effort to hide a critical
23 fact fails, however, because Defendant already admitted that the lease was for a period of three
months in each of the first two versions of the Cross-Complaints, as verified by the Lease
24 Agreement he attached to each of those, but left off the SACC. As stated above, for the
convenience of the Court, the Lease Agreement is attached to the RJN filed concurrently with this
25 brief.
20

26
3
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

FACC 16; and SACC 16. 4 Acknowledging the termination notice, on September 30, 2013,

2 Defendant wrote Plaintiffs an email inquiring whether Plaintiffs were willing to vacate the Leased
3 Premises early so Defendant could find a new tenant. See CC 11 and 14; FACC 17 and 20;
4 and SACC 17 and 21. 5 Plaintiffs did indeed vacate the premises early. See CC 15, 16;
5 FACC 22; and SACC 23. 6
6
Under the terms of the Lease, Defendant had 10 days from October 26, 2013or
7
November 5to return Plaintiffs Security Deposit. CC, FACC, and RJN, Ex. A, 9(B). Instead,
8
sometime later, Defendant provided a Security Deposit Refund Form alleging that Plaintiffs
9
10 damaged the Leased Property in the amount of $899, and that Defendant owed Plaintiffs only
11 $3,201 of their security deposit. CC, Ex. B; FACC, Ex B; and RJN, Ex. B. Defendant, however,
12 did not return Plaintiffs any portion of the security deposit, and has still not paid them any portion
13
14

of the security deposit. See, CC 19, 20, 25; FACC 27, 28, 50; SACC 28-30, 51; and
Defendants Answer to Plaintiffs Complaint, 32. Instead, five days laterNovember 21,

15
16

2013Defendant sent Plaintiffs two documents: (a) Security Deposit Refund Form (SDRF)

17 purporting to list $899 in deductions from the Deposit, and (b) a General Release and Settlement
18 Agreement (Release). See, Plaintiffs Complaint, 30and Defendants Answer to Plaintiffs
19 Complaint 30.
20
21
22

Note, the paragraph numbering in Defendants SACC contains an error where after paragraph 24
23 on page 5, the number starts over again at paragraph 16. This cite refers to the second paragraph
16 , which appears on page 5.
24 5
This cite refers to the second paragraphs 17 and 21, which appears on page 6.
25 6 This cite refers to the second paragraph 23, which appears on page 6.
26
4
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

On January 31, 2014, Plaintiffs filed a Complaint alleging claims for breach of contract for

2 Defendants failure to return any portion of the security deposit, breach of contract for
3 Defendants failure to honor the separate rent-rebate agreement, fraud, conversion, and for
4 violations of Civil Code section 1950(b) addressing a landlords responsibilities to a tenant with
5 regard to the security deposit and agreement. On March 17, 2014, Defendant Answered and filed
6

his Cross Complaint. Plaintiffs demurrer was sustained against Defendants initial Cross-

7
Complaint on August 4, 2014, based on Defendants failure to oppose it. On August 14, 2104,
8
9

Defendant filed the First Amended Cross-Complaint, and this Court sustained a demurrer, with

10 prejudice, against the claims for breach of contract, contributory negligence, and intentional
11 infliction of emotional distress, and allowing Defendant to amend and replead his claim for Fraud
12 and Deceit. In response, Defendant filed the SACC which attempts to amend and replead all
13

counts from the FACC.

14
III.

LEGAL STANDARD

15
16

A complaint must allege facts sufficient to establish every element of each cause of

17 action. (Consumer Cause, Inc. v. Arkopharma, Inc. (2003) 106 Cal.App.4th 824, 827.) A
18 demurrer may be made to the sufficiency of the complaint based on any ground appearing on its
19 face or from any matter judicially noticed. See Cal. Code Civ. Proc. 430.30(a). When the cause
20 of action is defective, the plaintiff bears the burden of showing how it can be cured by
21

amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040-1041; Goodman v.

22
Kennedy (1976) 18 Cal.3d 335, 349.) If the Defendant/Cross-Complainant in the present matter
23
24

does not do so, or if it is clear that the defect cannot be cured, the demurrer is properly sustained

25 without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; City of Pomona v. Superior
26 Court (2001) 89 Cal.App.4th 793, 800.) A trial court does not abuse its discretion by sustaining a
5
27
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
28

CASE NO. CIVMSC 14-00208

general demurrer without leave to amend if it appears from the complaint that under applicable

2 substantive law there is no reasonable possibility that an amendment could cure the complaints
3 defect (Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135,
4 1144; Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486; Dalton v. East Bay Mun.
5 Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-1571).
6

IV.

ARGUMENT

7
A.

8
9
10

Defendants Claims for Breach of Contract, Contributory Negligence

and Intentional Infliction of Emotional Distress Were Dismissed
Without Leave to Amend, and Thus Improperly Plead Here

On March 4, 2105, this Court issued a tentative ruling sustaining Plaintiffs previous

11 demurrerwithout leave to amendDefendants claims for breach of contract, contributory

12 negligence and intentional infliction of emotional distress. Nonetheless, Defendant repleads each
13
14

claim in his SACC. Because Defendant was not granted leave to amend or replead any of these
causes of action, they are, once again, subject to demurrer and must be dismissed. Plaintiff will

15
16

give Defendant, an in pro per litigant, the benefit of the doubt and not seek sanctions for his

17 failure to comply with the obvious language of the court order.

18

B.

Defendants Cause Of Action, For Fraud And Deceit, Is Uncertain

Because It Lacks The Required Specificity

19
20

Plaintiffs demurrer was also sustained as to Defendants cause of action for Fraud and

21 Deceit, however Defendant was granted leave to amend. Specifically, this Court found
22 Defendant failed to allege facts, with the requisite specificity, demonstrating the elements of
23 intent to defraud, justifiable reliance and resulting damages. Defendants amended cause of action
24 fails for the same reasons.
25
26
6
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

Fraud must be specifically pleaded. The effect of this rule is twofold: (a) General pleading

2 of the legal conclusion of fraud is insufficient and the facts constituting the fraud must be
3 alleged; (b) Every element of the cause of action for fraud must be alleged in the proper manner
4 (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not
5 ordinarily be invoked to sustain a pleading defective in any material respect. (Committee on
6

Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded on

7
other grounds, (citing, 3 Witkin, Cal. Proc. (2d. ed. 1971) Pleading, 574; see Hall v. Department
8
9

of Adoptions (1975) 47 Cal.App.3d 898, 904; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz

10 (1976) 57 Cal.App.3d 104, 109; Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69.) Thus, a party
11 alleging fraud must state what was said, by whom, in what manner (i.e., oral or in writing) and
12 when. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)
13
14

Defendants fraud claim again lacks the required specificity on most, if not all, of these
grounds. For example, Defendant alleges that [Plaintiffs] represented to [Defendant] that an

15
16

extended lease was needed because it was required to enroll their children in the local school

7
17 district . CC, 9 ; FACC 14; SACC 13. Defendant alleges, for the first time in any pleading or

18 document related to this matter in the over 12 months since its filing, that Plaintiffs supposedly
19 negotiated a lower rent price based on the premise that the three-month lease that was offered and
20 signed would might become a longer lease later. Even if this were true, which Plaintiffs will
21

contest, at most it represents a possibility of a longer lease, not a promise. Indeed, if Defendant

22
wanted to secure a longer lease term, he had every opportunity to draft the lease for a longer term.
23
24

Note, Defendants CC has a numbering error where paragraph number 8 and 9 are repeated
25 twice. This cite refers to the second paragraph 9 at lines 15-18 on page 3.
26
7
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

Interestingly, Defendant eliminated from this latest iteration of his claim all allegations stating that

2 the Lease he drafted and offered to Plaintiffs was for three months, but Defendant cannot bury
3 such a prominent and admitted facts so easily. See CC 9, Ex. A, 4 and 13; FACC 13, Ex. A,
4 4 and 13; RJN, Ex. A.
5
6

In any event, Defendants allegation lacks the required specificity because it fails to state
(a) that a promise was actually made (needed is not a promise, nor is the discussion of the

7
8
9

possibility of longer lease), (b) whether the alleged promises were oral or written, and (c) when the
promise was allegedly made. Indeed, as to the question of when, Defendant cannot make up his

10 mind whether the alleged promise took place prior to or subsequent to signing the Lease
11 Agreement. Compare FACC 13 (prior) to CC 8 (subsequent) to SACC 13 (which at
12 signing of the lease).
13

Because the claim fails to meet the pleading standard, the demurrer should be sustained.

14
15

C.

Defendants Cause Of Action, For Fraud And Deceit, Also Fails to State
Facts Sufficient to State A Claim

16

In addition to failing to meet the required specificity standard, Defendant fails to plead the

17

required elements for a fraud claim. To be an actionable deceit, a misrepresentation must be made

18
with intent to induce another to alter his or her position to that persons injury or risk. (Civ. Code
19
20

1709; Vandervort v. Farmers & Merchants Nat'l Bank (1936) 7 Cal.2d 28, 30-31.) Assuming

21 for the sake of this brief that Plaintiffs did communicate a desire or an intention to later consider a
22 lease extension, Defendant fails to meet almost every requirement of this standard.
23

First, there is no allegation that Plaintiffs made a misrepresentation. Defendant does not,

24 nor could he, allege Plaintiffs desire or intent to live in the areawhether by extending the lease
25

or buying a homewas a misrepresentation. Defendant does not even allege that the Plaintiffs

26
8
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

agreed to extend the lease, because Plaintiffs did not do so. In fact, any such alleged promise is

2 expressly contradicted by the parties written agreement that the Lease was for a three month
3 period from August 1st 2013 to October 31st 2013 with an option to renew on a month to month
4 basis. See CC 9, Ex. A, 4 and 13; FACC 13, Ex. A, 4 and 13; RJN, Ex. A. Indeed,
5 Defendant admits that Plaintiffs informed him in Septemberone month prior to the expiration of
6
the three-month Lease Agreementthat they would not renew the Lease Agreement. CC 10;
7
FACC 16; and SACC 16. 8 This allegation is in direct conflict with Defendants claim that
8
Plaintiffs somehow deceived him, and the admission provides a clear affirmative defense to the
9
10 claim. (Halvorsen, (1998) 65 Cal.App.4th at 1391) (when a complaint affirmatively alleges facts
11 amounting to an affirmative defense, it is subject to a demurrer.)) Defendant attempts to repair
12 this allegation with a new one stating, essentially that, once Defendant learned of the lease
13
14

termination, he sought Plaintiffs agreement to vacate the premises early so he could find a new
tenant sooner. See, SACC 17. 9 He then claims Plaintiffs did not respond to that email, and that

15
16

he understood the lack of response as a revocation of the lease termination notice. Even if true,

17 any failure to respond to Defendants request for an earlier termination date meantat mostthat
18 the termination date remained at October 31 and not earlier. The only representation made by
19 Plaintiffs was that they were electing to terminate the lease, and they did so according to the terms
20 of the lease as drafted by Defendant himself.
21

Second, even if a misrepresentation could be read into Defendants claim, Defendant fails

22
to plead Plaintiffs intended to induce Defendants reliance. A stated before, Defendant admits that
23
24

This cite refers to the second paragraph 16, which appears on page 5.

25

This cite refers to the second paragraph 17, which appears on page 6.

26
9
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

Plaintiffs gave him over a months notice of their intent to not to renew the lease. If anything, that

2 admissionby Defendant himselfdemonstrates an intent to ensure that Defendant had ample

3 time to find a new tenant, not an intention to somehow prevent him from doing so. Again,
4 Defendant affirmatively alleges a fact amounting to an affirmative defense to the claim, thus
5 subjecting it to demurrer. (Halvorsen, (1998) 65 Cal.App.4th at 1391.)
6

Finally, damage is a necessary element for fraud, (see Civ. Code, 1709), and Defendant

7
remains unable to plead any damage. There was no agreement to extend the Lease past the
8
9

original October 31 termination date. Plaintiffs Lease Agreement terminated under its own terms.

10 CC 8, Ex. A; FACC 13, Ex. A; RJN Ex. A. Plaintiffs already paid Defendant the full last
11 months rent in advance. CC 9; FACC 12; SACC 12. Defendant had over a month to market
12 for a new tenant, which is about the same, or more than he would have had even had Plaintiffs
13
14

agreed to continue forward on a month-to-month tenancy as he claims to have relied. CC 9;

FACC 13; RJN Ex. A. Indeed, Defendant alleges that he was able to rent the apartment. 10

15
In short, Defendant cannot plead facts showing a misrepresentation, cannot plead facts

16
17

showing intent, and cannot plead damages as a result of an alleged misrepresentation. For these

18 reasons, Plaintiffs demurrer to the fraud and deceit claim must be sustained with prejudice.
19
20
21
22
23
10

The fact that the Defendant charged the next tenant lower rent than Plaintiffs does not establish
damage. If anything, it only tends to show that Defendant was likely overcharging Plaintiffswho
25 relocated due to work from across the country and were looking for temporary housing.
24

26
10
27
28

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT
CASE NO. CIVMSC 14-00208

Ex. A

CONTRA COSTA SUPERIOR COURT

MARTINEZ, CALIFORNIA
DEPARTMENT: 21
HEARING DATE: 03/05/15

11. TIME: 9:00 CASE#: MSC14-00208

CASE NAME: KEITH PEARCE vs. RAVINDRA REDDY
HEARING ON DEMURRER TO 1st Amended CROSS-COMPLAINT of REDDY
FILED BY JONI PEARCE, KEITH PEARCE
* TENTATIVE RULING: *
Plaintiffs/Cross-Defendants Keith and Joni Pearces demurrer to the First Amended CrossComplaint is sustained.
As to the 1st Cause of Action for Breach of Contract, the demurrer is sustained without
leave to amend on the ground Defendant/Cross-Complainant Ravindra Reddy has failed to allege
facts sufficient to constitute a cause of action. The standard elements of a claim for breach of
contract are (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3)
defendant's breach, and (4) damage to plaintiff therefrom. [Citation.] Wall Street Network, Ltd. v.
New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.
Defendant Reddy has not alleged facts showing Plaintiffs/Cross-Defendants failure to
perform under the Lease Agreement as Defendant has not clearly identified which term or terms
Plaintiffs/Cross-Defendants allegedly breached. Moreover, Defendant Reddy has not alleged
facts demonstrating he suffered damages as result of any alleged breach by Plaintiffs. Defendant
Reddys Opposition failed to address how an amendment could cure defects to this cause of
action.
As to the 2nd Cause of Action for Contributory Negligence, the demurrer is sustained
without leave to amend. The demurrer is sustained on the ground Defendant Reddy has not
alleged facts sufficient to constitute a cause of action. Contributory negligence is not a recognized
tort in California.
As to the 3rd Cause of Action for Fraud and Deceit, the demurrer is sustained with leave to
amend. The demurrer is sustained on the ground Defendant Reddy has not alleged facts
sufficient to state a cause of action. "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.

-8-

CONTRA COSTA SUPERIOR COURT

MARTINEZ, CALIFORNIA
DEPARTMENT: 21
HEARING DATE: 03/05/15

Fraud must be pled with particularity. Every element must be pled factually and
specifically. "It is essential that the facts and circumstances which constitute the fraud should be
set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is
called on to answer, and to enable the court to determine whether, on the facts pleaded, there is
any foundation, prima facie at least, for the charge of fraud." Scafidi v. Western Loan & Bldg. Co.
(1946) 72 C.A.2d 550, 553.
Defendant Reddy has not alleged facts, with the requisite specificity, demonstrating the
elements of intent to defraud, justifiable reliance and resulting damages.
As to the 4th Cause of Action for Infliction of Emotional Distress, the demurrer is sustained
without leave to amend. The demurrer is sustained on the ground Defendant Reddy has not
alleged facts sufficient to constitute a cause of action. The elements of the tort of intentional
infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation
of the emotional distress by the defendant's outrageous conduct. . . . Conduct to be outrageous
must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.
(Citation) The defendant must have engaged in conduct intended to inflict injury or engaged in
with the realization that injury will result. Christensen v. Superior Court (1991) 54 Cal.3d 868,
903.
Defendant Reddy has failed to allege facts showing extreme and outrageous conduct.
Furthermore, Defendant has not alleged facts demonstrating he suffered severe mental distress
as a result of Plaintiffs conduct. Nor has Defendant suggested anyway that he could cure the
defects by amendment.
Request for Judicial Notice
Pursuant to Evidence Code 452 and 453, Plaintiffs/Cross-Defendants request the court to
take judicial notice of the following:
1. The September 30, 2013 email from Defendant to Plaintiffs, which is referenced in the
FACC at 16-20.
2. Plaintiffs Complaint in this action
3. Defendants Reddys Answer to the Complaint
Plaintiffs/Cross-Defendants request for judicial notice is granted in part. As to the
Complaint and Answer, the court may properly take judicial notice of the records of any court of
record of any state of the United States. (Evid. Code, 452(d)). The court may take judicial notice
of the existence of each document in a court file, but can only take judicial notice of the truth of
facts asserted in documents such as orders, findings of fact and conclusions of law, and
judgments." Day v. Sharp (1975) 50 Cal.App.3d 904, 914.
As to the September 30, 2013 email referenced in the First Amended Cross-Complaint, the
court declines to take judicial notice. Pursuant Evidence Code 452(h), the email is reasonably
-9-

CONTRA COSTA SUPERIOR COURT

MARTINEZ, CALIFORNIA
DEPARTMENT: 21
HEARING DATE: 03/05/15
subject to dispute and is incapable of immediate and accurate determination by resort to sources
of reasonably indisputable accuracy.
Defendant has 20 days to file an amended cross-complaint.
The Court sets a CMC for June 12, 2015 at 8:30 a.m.

- 10 -