Jakubaitis, et al. v. Antonowitsch, et al.
30-2015-00826973
The court overrules Defendants James H. Antonowitsch and Kathy G. Antonowitsch?s (individually and as co-trustees) Demurrer to the first and fourth causes of action of the First Amended Complaint (?FAC?). The court denies the Motion to Strike Punitive Damages.
DEMURRER
First Cause of Action for Fraud in the Inducement
Defendants argue ?[t]he mere failure of a defendant to perform a promise made in good faith does not constitute fraud.?? Promissory fraud is a subspecies of fraud and deceit.? (CACI no. 1902.) A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973?974.)
A promise of future conduct is actionable as fraud only if made without a present intent to perform. A declaration of intention, although in the nature of a promise, made in good faith, without intention to deceive, and in the honest expectation that it will be fulfilled, even though it is not carried out, does not constitute a fraud. Moreover, ?something more than nonperformance is required to prove the defendant’s intent not to perform his promise.? . . . [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.? (Magpali v. Farmers Group, Inc.(1996) 48 Cal.App.4th 471, 481.)
Here, the FAC alleges that the promise to fix up the house and sell it was just a ruse to get Plaintiffs to rent the property.? The FAC alleges that these promises were made without intent to perform and that Plaintiffs relied on these promises by agreeing to rent the property to their detriment.? More than a simple breach of contract has been alleged. Plaintiffs have stated a claim for promissory fraud.? The court overrules the Demurrer as to the first cause of action.
Fourth Cause of Action for Retaliation
Defendants argue that pursuant to Civil Code section 1942.5, a tenant who is in default of paying rent may not invoke the protection of that statute.? However, the assertion that Plaintiffs were in default is extrinsic to the FAC.
The court grants Defendants? Request for Judicial Notice pursuant toEvidence Code section 452, subdivision (d). However, judicial notice of other court records and files is limited to matters that are indisputably true. This generally means judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein. (Fremont Indem. Co. v. Fremont Gen. Corp.(2007) 148 Cal.App.4th 97, 113; Arce v. Kaiser Found. Health Plan, Inc.(2010) 181 Cal.App.4th 471, 482-484; see Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660 [trial court properly took judicial notice of Taiwanese complaints but should not have used them to resolve factual dispute regarding whether instant action was time-barred].) The court cannot accept as true the contents of pleadings or exhibits in the other action just because they are part of the court record or file. Such documents are inadmissible hearsay in the present case. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)
Therefore, the court cannot accept as true the fact that Plaintiffs were behind in their rent.? Further, there have been no findings in the unlawful detainer case that the court could judicially notice. The court overrules the Demurrer as to the fourth cause of action.
MOTION TO STRIKE
Defendants argue that there are insufficient facts to show malice, fraud or oppression. On page 6 of the Moving Papers, Defendants argue there are insufficient allegations as to causes of action that do not exist in this case.? (See, e.g., Memorandum of Points and Authorities, at p. 6, lines 3-7 [referring to ?Defendant SILVERSTEIN? and to causes of action for set aside trustee?s sale, void or cancel trustee?s deed upon sale, wrongful foreclosure, unjust enrichment, violation of Business and Professions Code section 17200, intentional and negligent infliction of emotional distress, and wrongful eviction].)
As discussed above, the court overruled the demurrer as to the fraud cause of action.? Furthermore, there are other allegations of intentional conduct sufficient to withstand a motion to strike. Therefore, the court denies this Motion to Strike.
Defendants are ordered to answer the FAC within 15 days.
Plaintiffs shall give notice of this ruling.