Liberty Property Limited Partnership v. 10721 Jasmine LLC, et al.

Defendant Washington Capital Management, Inc.’s (“WCM”) demurrer to the fifth cause of action of the First Amended Complaint (“FAC”) is sustained with 15 days leave to amend.  Defendant Scott Gladstone’s demurrer to the fifth cause of action of the FAC is also sustained with 15 days leave to amend.

Defendant Washington Capital Management, Inc.’s request for judicial notice of the complaint and the first amended complaint is denied.  It is unnecessary to ask the court to take judicial notice of materials previously filed in this case.  “[A]ll that is necessary is to call the court’s attention to such papers.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)-33.)

The fifth cause of action alleges conspiracy to commit fraud.  “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.  (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.)

Because there is no cause of action for civil conspiracy to commit fraud, the demurrer is sustained with leave to amend to permit Plaintiff to properly allege a fraud claim based on a civil conspiracy theory against WCM and Gladstone.  The court notes that Plaintiff has already alleged promissory fraud and two fraud causes of action against Gladstone.  The court expresses no opinion as to whether Plaintiff can cure the deficiency through either alleging another fraud case of action or whether it can amend existing fraud causes of action.  The court need not address WCM’s argument that it owed no independent duty to Liberty with respect to the sale of the real property.

Plaintiff shall give notice of the ruling.