Case Name:??? Xilin Xiang, DDS v. Sy Tong, et al.
Case No.:??????? 16-CV-289880
Demurrer by Defendant Robert Kelly to the Second Amended Complaint of Plaintiff Xilin Xiang, DDS
Factual and Procedural Background
??????????? This case arises from the alleged breach of a contract to remodel a medical office located at 365 South Redwood Avenue, San Jose, California (the ?Property?). (Second Amended Complaint (?SAC?), ?? 6-38.) Plaintiff Xilin Xiang, DDS (?Plaintiff?) purchased the Property and ?was looking for a general contractor to remodel the Property into a dental office to which he planned to move his dental practice.? (Id., at ?? 6-7.) Plaintiff interviewed two general contractors, who provided proposal prices between $80,000 and a little over $100,000 for materials and labor. (Id., at ? 8.) He also interviewed two architects, who indicated that their design fees were $5,000 for internal remodeling and $8,000 for whole house remodeling. (Ibid.) Plaintiff had $100,000 in savings and $100,000 in an equity line, and felt he could accomplish the remodeling project easily. (Ibid.)
In August 2013, Plaintiff was introduced to defendant Sy Tong (?Tong?), who represented that ?he was a general contractor with close to 30 years of construction experience and was very skillful in remodeling old residential and commercial buildings.? (SAC, ?? 9-10.) Plaintiff invited Tong to look at the Property and Tong suggested several improvements, such as installing a roof furnace, extending the back wall of the building by five feet, and changing the main entrance to the house. (Id., at ? 11.) However, Tong did not tell Plaintiff that ?the roof-installed furnace meant the new office would have a flat roof instead of its original gable roof,? the flat roof would suffer from problems (such as ?poor protection from weather elements and difficulty in installing and servicing utility lines and pipes?), and ?the flat roof was much cheaper to build than the gable roof.? (Ibid.)
Plaintiff told Tong that he had $200,000 available for the project and asked Tong to ?make a proposal.? (SAC, ? 12.) Tong told Plaintiff that he ?could give [him] a significant discount? and ?do the entire remodeling for $200,000.? (Id., at ? 13.) He stated that he ?would use the best materials, including commercial-grade windows and the front door,? and ?ask his good friend [defendant Robert Kelly (?Kelly?)] to design [Plaintiff?s] dental office.? (Ibid.) Tong represented that he had ?partnered with [Kelly] on many remodeling projects? and ?Kelly had graduated from UC-Berkeley.? (Ibid.) Tong also took Plaintiff to see a house in Oakland that he and Kelly built, as an example of what they could do for Plaintiff?s project. (Id., at ? 14.) Tong stated that Kelly?s fees were ?about $12,000? and ?Kelly was exceptional and ? very much worth the extra money.? (Id., at ? 15.) Tong also informed Plaintiff that ?he and Kelly would operate together with a single contract and Kelly would not just design the Project, he would also provide oversight to the construction process.? (Ibid.) In addition, ?[w]hen [Plaintiff] told Tong that he ? needed to spend about $70,000 on dental equipment, Tong said [Plaintiff] could pay him $130,000 initially so that he could have funds to buy the dental equipment? and Plaintiff ?could repay him the remaining $70,000 when his new dental office started to generate profits.? (Id., at ? 16.)
While Plaintiff was hesitant because of the higher costs associated with Tong?s proposal, he agreed to meet with Kelly to allow Kelly take measurements of the building and make a formal proposal for the project. (SAC, ? 17.) The meeting took place in September 2013. (Id., at ? 18.) At the meeting, Kelly represented that ?he had partnered with Tong on many projects? and ?$200,000 for the project was cheaper than the normal price for this kind of project based on his many years of experience in the remodeling industry.? (Ibid.) He also ?gave Tong high praises for his 30 years of experience in construction in general and his experience in office remodeling?; ?assured [Plaintiff] that Tong was a very qualified contractor?; and told Plaintiff that ?he and Tong had done dental and doctor offices before.? (Ibid.) ?Kelly?s representations regarding Tong?s qualifications and ? [their experience] in dental office construction were false.? (Ibid.)
Plaintiff subsequently ?agreed to see a formal proposal by Kelly for the project? and a vendor, Joe Fazzio (?Fazzio?), provided Tong and Kelly with the connection and installation requirements for the dental equipment to be installed in the office. (SAC, ? 19.) Kelly allegedly told Fazzio that he ?made all major decisions on the designs and materials for the Project.? (Ibid.) He also ?assured Fazzio that between Tong and himself there should not be any problems with the proper setup for the power and plumbing required for the installation of the dental equipment.? (Ibid.) ?Such presentation was false as ? Kelly and Tong had never worked on any dental office renovation or construction project before ?.? (Ibid.)
On October 3, 2013, Kelly emailed Plaintiff a formal written proposal, in which he stated that ?[Tong] said he would do the work listed on the enclosed document for $200,000.? (SAC, ? 20, Ex. A.) Kelly also indicated that the project was a ?special discount? for Plaintiff because, in his experience, basic residential and commercial construction costs for a project of the same size were significantly more than $200,000. (Id., at ? 21.) The proposal itself indicated that the ?contract price ? [was] $200,000 including labor and materials, but excluding permit costs,? and the architect fee was $20,000. (Id., at ? 20.) Plaintiff alleges that the ?proposal presented the project as a partnership between Kelly and Tong, without any segregation of payments between them.? (Ibid.) Plaintiff further alleges that ?Kelly and Tong ? intended to form a partnership to work on the Project for their mutual profit?; ?[he] viewed Kelly and [Tong] as a partnership?; ?Kelly acted as the agent of the partnership to made [sic] the proposal to [him] and encourage [him] to hire the partnership for the project.? (Ibid.) ?The above statements were false as Kelly, at the time of making said statements, knowingly concealed the facts that Tong and [him] intended to use old materials and shoddy construction.? (Id., at ? 22) Plaintiff alleges that ?[t]he actual price and costs in light of their substandard materials and labor should be less that what Kelly presented to [him].? (Ibid.) ?Kelly also concealed the facts that the price they offered was for a flat roof instead of the original gable roof of the building, and that a flat roof was much cheaper to build.? (Ibid.) Kelly made the misrepresentations and concealments to induce Plaintiff to hire the partnership. (Ibid.) Had Plaintiff ?known about the change of the roof type, he would not have done it as the roof was fairly new.? (Ibid.) Plaintiff was persuaded by Kelly?s representations and ?later informed Kelly by telephone to accept [the] proposal and to hire Kelly and Tong for remodeling the Property.? (Id., at ? 23.)
In November 2013, Kelly submitted architectural designs for the Property to the City of San Jose. (SAC, ? 24.) The designs were rejected and Kelly and Tong falsely told Plaintiff that the engineering designs were part of the permit costs, which were excluded from the contract price, as opposed to part of the architectural designs. (Ibid.) Plaintiff was forced to pay an additional $7,100 to cover engineering design costs. (Ibid.) One month later, the designs were approved and a building permit was obtained. (Id., at ? 25.)
??????????? Construction on the project began in January 2014. (SAC, ? 26.) During the construction, Tong made several false representations about the progress of the construction, the outcome of inspections performed by the City of San Jose, and the quality of materials used on the project. (Id., at ?? 26-28.) Additionally, Kelly falsely represented to Plaintiff that ?the construction was going well,? the construction ?was passing inspections on schedule,? ?most of the items of the Project had passed inspection,? and ?the entire Project would be finished soon.? (Id., at ?? 27-28.) In April 2014, Plaintiff paid Tong the remaining $50,000, which would complete the initial $130,000 payment, based on Kelly and Tong?s misrepresentations regarding the progress of the project. (Id., at ? 28.)
After the payment was made, work on the project slowed substantially. (SAC, ? 29.) In June 2014, Plaintiff confronted Tong, who blamed the lack of progress on Fazzio. (Ibid.) Plaintiff asked Kelly to come to the construction site to clear up any disputes between Fazzio and Tong, but he refused and told Plaintiff that the contract price did not include installation of the plumbing and electrical hookups. (Id., at ? 30.) Plaintiff also learned for the first time, after the roof was built, that the roof was flat by design. (Id., at ? 31.)
Because of these problems, Plaintiff became concerned about the progress of the project and was informed by ?a friend? and ?another contractor? that the construction suffered from several defects. (SAC, ?? 32-33.) After Plaintiff asked Tong to provide him with the permit inspection record, Tong stopped working on the project and removed all of his construction tools and unused materials. (Id., at ? 34.) Plaintiff attempted to convince Tong to resume work on the project, but Tong refused. (Id., at ? 35.)
Subsequently, Plaintiff interviewed other contractors and learned that the entire project needed to be redone because of numerous construction defects. (SAC, ?? 36-37.) Plaintiff also learned that the construction performed by Tong ?failed most of the inspections,? Tong ?had to take much time to redo many parts of the project,? ?many major items still had not passed inspection,? and Kelly and Tong significantly inflated the price of many items such as windows, doors, and furnaces. (Id., at ?? 37, 39.) Additionally, Plaintiff learned that ?[c]ontrary to Tong and Kelly?s knowingly false representation that they would use the best materials ?, Tong used many old materials, including termite-damaged wood studs and even studs with live terminate [sic] infections,? the electric wiring was defective, the front door was not code compliant, and the furnace and plumbing were old and improperly installed. (Id., at ? 38.) Plaintiff eventually hired a new contractor and spent approximately $250,000 to fix the problems caused by Tong. (Id., at ? 41.) Nonetheless, several structural problems and design defects remain as Plaintiff did not have sufficient funds to redo the entire project. (Id., at ?? 41-45.)
Based on the foregoing, on June 2, 2016, Plaintiff filed the operative SAC against Tong and Kelly, alleging causes of action for: (1) fraud and deceit; (2) breach of contract; (3) breach of covenant of good faith and fair dealing; (4) intentional infliction of emotional distress (?IIED?); (5) negligence, and (6) rescission of contract.
Currently before the Court is the demurrer by Kelly to the SAC. Plaintiff filed papers in opposition to the demurrer on August 25, 2016. Kelly filed a reply on September 1, 2016.
Discussion
Kelly demurs to each and every cause of action of the SAC on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., ? 430.10, subds. (e), (f).) Kelly also demurs to the fifth cause of action on the ground of failure to file a certificate as required by Code of Civil Procedure section 411.35. (See Code Civ. Proc., ? 430.10, subd. (h).)
- Meet and Confer
As an initial matter, though not raised by the parties, the Court notes that Kelly failed to comply with Code of Civil Procedure section 430.41 (effective January 1, 2016), which provides that the moving party must meet and confer prior to filing a demurrer.
While the parties met and conferred regarding perceived deficiencies in the original complaint and first amended complaint (?FAC?) (Maclear Dec., ?? 1-3), there is no indication that Kelly attempted to meet and confer with Plaintiff again after the SAC was filed. (See Code Civ. Proc., ? 430.41, subd. (a) [?Before filing a demurrer ?, the demurring party shall meet and confer ? with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint ? is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.?], emphasis added.)
In the interest of addressing the issues raised by the demurrer and moving the case forward, the Court will overlook?in this instance only?Kelly?s failure to meet and confer. Kelly is admonished to comply with the Code of Civil Procedure going forward.
- Request for Judicial Notice
??????????? In connection with his moving papers, Kelly asks the Court to take judicial notice of the original complaint, his demurrer to the complaint, the FAC, his demurrer to the FAC, the May 12, 2016 court order on his demurrer to the FAC, and the SAC. Kelly also makes a request for judicial notice in a footnote on page six of his reply.
Kelly?s request for judicial notice is procedurally improper because he did not provide the Court with a copy of the materials to be noticed and there is no indication that he made arrangements with the clerk to have the file in the courtroom at the time of the hearing. (Cal. Rules of Ct., rule 3.1306(c) [a party requesting judicial notice in connection with a motion must provide the court and each party with a copy of the material to be noticed or, if the material is part of a file in the court in which the matter is being heard, make arrangements with the clerk to have the file in the courtroom at the time of the hearing].) Additionally, Kelly?s request for judicial notice set forth in a footnote in his reply is procedurally improper because it is not made in a separate document. (Cal. Rules of Ct., rule 3.1113(l) [a request for judicial notice must be made in a separate document listing the specific items for which notice is requested].)
To the extent Kelly requests judicial notice of the complaint, his demurrer to the complaint, the FAC, his demurrer to the FAC, and the May 12, 2016 court order on his demurrer to the FAC, the request is also substantively improper. ?There is ? a precondition to the taking of judicial notice in either its mandatory or permissive form?any matter to be judicially noticed must be relevant to a material issue.? (People ex rel. Lockyer v. Shamrock Foods Co. (?Lockyer?) (2000) 24 Cal.4th 415, 422, fn. 2.) Here, the complaint and FAC are not relevant to any material issue before the Court because they are no longer the operative pleading. Similarly, Kelly?s demurrers to the earlier pleadings and the court order on his demurrer to the FAC are not material to the issues pending before the Court because the SAC is now the operative pleading. For these reasons, the earlier pleadings, Kelly?s demurrers thereto, and the prior order on Kelly?s demurrer to the FAC are not proper subjects of judicial notice. (See ibid.)
To the extent Kelly requests judicial notice of the SAC, the request is simply unnecessary. The SAC is the pleading under review; consequently, the contents thereof must necessarily be considered by the Court when ruling on the demurrer.?(See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)
Accordingly, the request for judicial notice is DENIED.?
III.?????? Legal Standard?
In reviewing the sufficiency of a complaint against a general demurrer, courts are guided by long settled rules. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) ? ?The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]? ? (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.) The question of the plaintiff?s ability to prove the factual allegations of the complaint, or the possible difficulty in making such proof, does not concern the reviewing court. (Committee on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213?214.) ?
- Uncertainty?
Kelly does not specifically address the ground of uncertainty in his memorandum of points and authorities. Rather, he only sets forth arguments pertaining to the ground of failure to allege facts sufficient to constitute a cause of action.[1]?Since Kelly does not specify how or why the claims are uncertain or where the uncertainty appears in the SAC, the demurrer on this ground lacks merit. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of Univ.of Cal. (2002) 29 Cal. 4th 300, 328; Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)
Furthermore, uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so bad the responding party cannot reasonably respond.?(See Khoury v. Maly?s of Cal., Inc. (1993) 14 Cal App 4th 612, 616 [?A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.?].) Here, it is readily apparent from Kelly?s arguments that he understands what each cause of action at least attempts to allege and there is no true uncertainty.
??????????? Accordingly, the demurrer to each and every cause of action on the ground of uncertainty is OVERRULED.
- Failure to Allege Facts Sufficient to State a Claim
- Second Cause of Action?
??????????? The second cause of action for breach of contract states that ?[t]he partnership of Tong and Kelly, via its agent Kelly, entered into a construction contract with [Plaintiff] for the remodeling project of the Property?; the contract provided that ?Tong and Kelly would perform the remodeling of the Property according to an architectural plan for a total of $130,000 plus license and permit fees, with another $70,000 to be paid after the dental office ? started to generate profit?; the contract ?was a joint obligation of Tong and Kelly?; Plaintiff fully performed his duties under the contract; Tong and Kelly did not conduct the remodeling project in accordance with the engineering and architectural plan; Kelly and Tong abandoned the project before it was completed; ?Tong and Kelly thus have breached the construction contract?; Kelly and Tong failed to inform Plaintiff of the design change to the roof; Kelly and Tong also failed to inform Plaintiff that the architectural services did not include engineering designs; and Kelly and Tong failed to perform ?the basic duties of the contracted architectural services in light of the failure to design the cantilevers for the lobby overhang and to allow sufficient space for the cantilevers.? (SAC, ?? 57-61.)?
??????????? Kelly argues that the second cause of action fails to state a claim because there is no contract between him and Plaintiff. Kelly contends that the only contract alleged is between Tong and Plaintiff. Kelly also asserts that the partnership allegations in the SAC are insufficient because the email referenced in the SAC, in which he allegedly forwarded the written proposal for the remodel project to Plaintiff, states that Tong?as opposed to him and Tong?would perform the work listed in the proposal. Kelly contends that his role in the project ended after the building permits were secured.
In opposition, Plaintiff asserts that he adequately states a claim for breach of contract because he alleges that Kelly and Tong were partners and the proposal was submitted on behalf of the partnership. Plaintiff further argues that, at the very least, there is an implied contract between him and Kelly for the provision of architectural services in exchange for the payment of $20,000. Plaintiff contends that Kelly breached this implied contract by providing defective architectural designs.
??????????? ?A partnership is an association of two or more persons to carry on a business for profit as coowners [citation]. The sharing of profits of a business is prima facie evidence that a partnership exists except where such profits are received as debts, wages or rent, interest on a loan or consideration for the sale of good will of a business or other property [citations]. The ultimate test of the existence of a partnership is the intention of the parties to carry on a definite business as coowners. Such intention may be determined from the terms of the parties? agreement or from the surrounding circumstances [citations]. It is immaterial that the parties do not designate the relationship as a partnership or realize that they are partners, for the intent may be implied from their acts [citations]. Some degree of participation by partners in management and control of the business is one of the primary elements of partnership [citation].? (Greene v. Brooks (1965) 235 Cal.App.2d 161, 165?66.) Importantly, ?[w]hether a partnership ? exists is primarily a factual question to be determined by the trier of fact from the evidence and inferences to be drawn therefrom. [Citations.]? (Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 364.)
Here, Plaintiff alleges that: Tong represented that he had ?partnered with [Kelly] on many remodeling projects? (SAC, ? 13); Tong informed Plaintiff that ?he and Kelly would operate together with a single contract and Kelly would not just design the Project, he would also provide oversight to the construction process? (id., at ? 15); Kelly represented that ?he had partnered with Tong on many projects? (id., at ? 18); Kelly told Plaintiff that ?he and Tong had done dental and doctor offices before? (ibid.); Kelly told Fazzio that he ?made all major decisions on the designs and materials for the Project? (id., at ? 19); Kelly ?assured Fazzio that between Tong and himself there should not be any problems with the proper setup for the power and plumbing required for the installation of the dental equipment? (ibid.); Kelly emailed Plaintiff the formal written proposal for the remodeling project to Plaintiff (id., at ? 20, Ex. A); the contract price included both Kelly?s architectural fee and the construction costs (ibid.); Kelly and Tong intended to form a partnership carry out the business of remodeling the Property and to share profits from the business (id., at ?? 20, 47); ?Kelly acted as the agent of the partnership to make the proposal to [Plaintiff] and encourage [him] to hire the partnership for the project? (id., at ? 20); Plaintiff ?later informed Kelly by telephone to accept [the] proposal and to hire Kelly and Tong for remodeling the Property? (id., at ? 23); ?[t]hroughout the project, [Plaintiff] communicated with both Tong and Kelly regarding the issues of the project? (ibid.); after construction work began, ?[w]henever [Plaintiff] asked Kelly about the Project, he ? stated to [Plaintiff] that the construction was going well and was passing inspections on schedule? (id., at ?? 26-27); and, in April 2014, ?[w]hen [Plaintiff] asked Kelly about the progress of the Project, Kelly re-assured him that most of the items of the Project had passed inspection and the entire Project would be finished soon? (id., at ? 28). It can reasonably be inferred from these allegations that Kelly and Tong intended to carry on a definite business (i.e., the remodeling project) as co-owners, share the profits of the business, and Kelly participated in the management and/or control of the alleged business. Since the partnership allegations are sufficient for pleading purposes, Plaintiff adequately pleads a claim for breach of contract against Kelly.
Accordingly, the demurrer to the second cause of action is OVERRULED.
- Third and Sixth Causes of Action
??????????? The third cause of action for breach of implied covenant of good faith and fair dealing alleges that Tong and Kelly breached the implied covenant to use good faith and reasonable effort to complete the project in compliance with the industry standard. (SAC, ?? 64-67.) The sixth cause of action for rescission alleges that Tong and Kelly fraudulently induced Plaintiff to enter into the contract and, as an alternative to enforcement, Plaintiff seeks rescission of the contract. (Id., at ?? 79-80.)
Kelly argues that the third and sixth causes of action ?both fail for the same reason as the breach of contract claim ? there is no contract sufficiently alleged between [him] and [Plaintiff].? (Mem. Ps. & As., p. 6.)
As articulated above, Kelly?s arguments regarding the breach of contract claim are not well-taken as the partnership allegations are sufficient for pleading purposes.
Accordingly, the demurrer to the third and sixth causes of action is OVERRULED.
- Fifth Cause of Action
The fifth cause of action for negligence incorporates the prior allegations of the SAC regarding alleged defects in Kelly?s architectural designs. (SAC, ?? 43-46, 74.) The fifth cause of action further alleges that Tong and Kelly breached their duty to use reasonable care in conducting the remodel project. (Id., at ? 75.) Attached to the SAC as Exhibit B, is a ?Certificate of Merits? executed by Plaintiff?s counsel, which states: ?Pursuant to CCP ? 411.35(b)(3), I hereby certify that I was unable to obtain the consultation required by CCP ? 411.35(b)(1). I had made separate good faith attempts with three architects to obtain such consultation and none of those contacted would agree to the consultation.??
Kelly argues that the negligence claim fails because the ?Certificate of Merits? executed by Plaintiff?s counsel does not comply with Code of Civil Procedure section 411.35. He further argues that the fifth cause of action fails to allege facts sufficient to state a claim for negligence because there is no contractual privity between him and Plaintiff.[2]
In opposition, Plaintiff argues that he has complied with Code of Civil Procedure section 411.35 and adequately alleged privity between himself and Kelly.
The Court finds that the ?Certificate of Merits? attached to the SAC as Exhibit B complies with Code of Civil Procedure section 411.35. That statute provides that before serving a professional negligence complaint against a licensed architect the plaintiff?s attorney must file a certificate of merit. (Code Civ. Proc., ? 411.35, subd. (a).) The certificate must be executed by the attorney for the plaintiff and set forth one of three possible declarations, including ?[t]hat the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts with three separate architects ? to obtain this consultation and none of those contacted would agree to the consultation.? (Code Civ. Proc., ? 411.35, subd. (b)(3).) The ?Certificate of Merits? filed by Plaintiff sets forth a declaration by his counsel, providing that counsel made three separate good faith attempts with architects to obtain a consultation and none of the architects would agree to the consultation. Thus, the declaration complies with Code of Civil Procedure section 411.35, subdivision (b)(3).
Moreover, Kelly?s arguments regarding privity are not well-taken because, as indicated above, the partnership allegations in the SAC are sufficient for pleading purposes.
Accordingly, the demurrer to the third cause of action is OVERRULED.
- First Cause of Action?
??????????? The first cause of action for fraud and deceit alleges that the partnership of Tong and Kelly, through either Tong or Kelly, made intentional misrepresentations regarding Tong?s experience and qualifications, Kelly?s experience renovating dentist offices, the quality of the materials used on the project, the cost of the materials, the progress of the project, the outcome of inspections, and the exclusion of engineering design fees from the contract price. (SAC, ?? 49-52.) Each misrepresentation was knowingly false at the time it was made. (Ibid.) Additionally, Kelly and Tong concealed the following facts: the contract price was based on a change in the design of the original gable roof; Kelly?s design left almost no attic space; and a new furnace?of the same capacity as the one used on the project?was half the size and weight of the furnace that was used on the project. (Id., at ? 50.) Plaintiff relied on those misrepresentations and concealments by initially entrusting the project to Tong and Kelly, and continuing to entrust them with the project. (Id., at ? 53.)?
Kelly argues that the first cause of action fails because the allegations do not establish the existence of a partnership between him and Tong. He further contends that the representations he made?as opposed to those made by Tong?are not pled with the requisite specificity and, in any event, those representations did not cause Plaintiff to entrust the project to himself and Tong.
In opposition, Plaintiff contends that Kelly?s argument improperly ignores the misrepresentations made by Kelly regarding the cost of the project, the quality of the materials used, the outcomes of inspections, and the completion of the project.
Kelly?s demurrer fails to address the sufficiency of misrepresentations allegedly made by Tong. Since the partnership allegations are adequate, Kelly?s failure to address the sufficiency of the misrepresentations allegedly made by Tong is fatal to his demurrer to this cause of action. (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 [a demurrer cannot lie to only part of a cause of action].)?
Accordingly, the demurrer to the first cause of action is OVERRULED.
- Fourth Cause of Action
??????????? The fourth cause of action for IIED alleges that: Tong and Kelly knew the remodeling project was important to Plaintiff and he had ?attached a high emotional factor to the success of the project?; Tong and Kelly, thereafter, intentionally deceived Plaintiff and abandoned the project without completing it; Tong and Kelly?s conduct was extreme and outrageous; and their conduct caused Plaintiff to suffer severe emotional distress, including physical injury. (SAC, ?? 70-72.)
Kelly argues that the fourth cause of action fails to allege facts sufficient to constitute a claim for IIED because his alleged conduct is not sufficiently outrageous and a construction contract dispute, as a matter of law, does not rise to the level of outrageous conduct.
In opposition, Plaintiff contends that he has adequately pled a claim for IIED because the SAC sets forth allegations of fraud, as opposed to a mere breach of a construction contract, and he alleges physical injuries as a result of Tong and Kelly?s conduct.
?The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff?s injuries were actually and proximately caused by the defendant?s outrageous conduct.? (Cochran v. Cochran (?Cochran?) (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744-745.) In order for conduct to be considered ?outrageous? for the purpose of tort liability for IIED, it must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.) ?There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser?s values, sensitivity threshold,?and standards of civility.? (Cochran, supra, 65 Cal.App.4th at 494, internal quotations omitted.) The outrageousness of a defendant?s conduct normally presents an issue of fact to be determined by the jury; nevertheless, the court may determine the issue as a matter of law where it would be unreasonable to conclude that the defendant?s conduct rose to the requisite level of outrageousness. (See Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883.)
Here, Kelly does not cite any legal authority involving similar allegations of misconduct, in which courts have found that the misconduct failed to constitute outrageous conduct as a matter of law. First, Kelly cites several cases that do not involve allegations of physical injury as a result of the misconduct. Those cases are distinguishable because Plaintiff alleges that he experienced stomach upset, headaches, and fell and injured his face and hands as a result of Kelly?s alleged misconduct. (SAC, ?? 35-36.) Second, Kelly cites Fuentes v. Perez (?Fuentes?) (1977) 66 Cal.App.3d 163 and Erlich v. Menezes (?Erlich?) (1999) 21 Cal.4th 543?cases that involved claims for breach of contract and negligence arising out of the negligent construction of homes. Fuentes and Erlich are distinguishable from this action because those cases do not involve any allegations of intentional fraud. Thus, the Court is not prepared to hold, at this point in time, that the allegations of misconduct set forth in the SAC do not constitute outrageous conduct as a matter of law.
Accordingly, the demurrer to the fourth cause of action is OVERRULED.
[1] Notably, a ?demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.? (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.)
[2] Kelly also asks the Court to order Plaintiff?s counsel to disclose the names and contact information of the three licensed architects that he consulted with pursuant to Code of Civil Procedure section 411.35, subdivision (e), which? provides that ?[i]f ? the attorney makes a claim under paragraph (3) of subdivision (b) that he ? was unable to obtain the required consultation with the architect ?, the court may require the attorney to divulge the names of architects ? refusing the consultation.? The Court declines to consider this request because Kelly raised the issue for the first time in his reply and, consequently, Plaintiff did not have an opportunity to address the same. (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [stating that, ordinarily, a ?court will not consider points raised for the first time in a brief for the obvious reason that opposing counsel has not been given the opportunity to address those points?].)