1.PLAINTIFF/CROSS-DEFENDANT CARVAJAL-MOTORSPORTS LLC AND CROSS-DEFENDANT ANTONIO CARVAJAL?S DEMURRER TO FIRST AMENDED CROSS-COMPLAINT

CCP ? 430.41 requires that a?demurring party meet and confer ?in person or by telephone with the party who filed the pleading that is subject to demurrer? before filing any demurrer.? Here, the demurring parties failed in their statutory obligations.? Instead of communicating in person or by telephone, they sent a written communication the day before filing the demurrer and motion to strike.? That was insufficient but in order to move this case along, the Court will address the merits of both the demurrer and the motion to strike.? The Court notes, however, that this is not the first time the parties have had difficulty with simple communication and encourages the parties to do better in the future.

Plaintiff/Cross-Defendant Carvajal-Motorsports, LLC and Cross-Defendant Antonio Carvajal?s demurrers to the 1st, 2nd, 4th and 6th causes of action are?overruled.? The demurrers to the 3rd (Fraud) and 5th (Negligence) causes of action are?sustained with leave to amend.

Defendants/Cross-Complainants have?fifteen days?in which to amend those causes of action.

First Cause of Action for Breach of Contract.?

Although the cross-complaint is not a model pleading, it attaches the alleged written contract (First Amended Cross-Complaint (?FACC?),?? 30, Exhibit 4) and sufficiently identifies the alleged breaches (FACC, ?? 27-31). The demurrer to the first cause of action is, therefore, overruled.

Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing.?

As set forth above, the breach of contract claim is sufficient at this pleading stage and the demurrer to the second cause of action is, therefore, overruled.

Third Cause of Action for Fraud.

?In California, fraud must be pled specifically; general and conclusory allegations do not suffice. Thus the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect.? This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”?Lazar v. Superior Court?(1996) 12 Cal. 4th 631, 645 (citations and internal quotation marks omitted).

The?third cause of action for fraud (by Dime against Carvajal, Antonio Carvajal, Stephen Vandervalk and Brian Vandervalk) does not include ?facts which show how, when, where, to whom, and by what means? the alleged misrepresentations were tendered.

Fourth Cause of Action for Promissory Estoppel.

The essential elements of a promissory estoppel claim include a promise, reasonable and foreseeable reliance and resulting injury.??Aceves v. U.S. Bank, N.A.?(2011) 192 Cal.App.4th 218, 225.? Dime alleges that Carvajal promised to provide the monocoque and body work for the automobile and offered to make payments in a timely manner.? Dime further alleges that it relied upon these promises in investing time, effort, and money to develop blueprint designs. Finally, Dime alleges that it was injured when it was stripped of a chance at profit from the sale of the automobile.??First Amended Cross-Complaint, ?? 69-73.? These allegations are sufficient, at this pleading stage, to state a claim of promissory estoppel.

Fifth Cause of Action for Negligence.?

The First Amended Cross-Complaint alleges that ?Carvajal, Antonio, Stephen and Brian, owed a duty of care to Dime Consulting to act reasonably with regard to the parties? business dealings.??? That allegation does not sufficiently assert the existence of a duty, an essential element of any negligence claim.? Further, Dime alleges that the Cross-Defendants failed in that duty to failing to provide satisfactory body work and the monocoque.? According to the allegations of the complaint, Carvajal, not the individual cross-defendants, had that duty, thus even if the existence of a duty were sufficiently stated, the claim, as pled, would not stand against Antonio Carvajal.

Sixth Cause of Action for Declaratory Relief.?

The First Amended Cross-Complaint alleges a controversy regarding ?the benefit of the profits to be made from the sale of the first 25 automobiles . . .???FACC, ? 33.? That allegation is sufficient to support a plea for declaratory relief.??

2.PLAINTIFF/CROSS-DEFENDANT CARVAJAL-MOTORSPORTS LLC AND CROSS-DEFENDANT ANTONIO CARVAJAL?S MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT

Plaintiff/Cross-Defendant Carvajal-Motorsports, LLC and Cross-Defendant Antonio Carvajal?s motion to strike is?granted?as to page 15, ? 83 (#6), page 17, line 12, item 7 (#13), Page 17, line 26, item 7 (#16), page 18, line 7, item 9 (#17) and page 18, line 19, item 3 (#18).? Defendants/Cross-Complainants are directed to delete the identified language from their amended cross-complaint.

The motion to strike is otherwise denied.? Emotional distress and punitive damages may be sought in connection with fraud and negligence causes of action, depending upon the allegations.? Because leave has been granted to amend the fraud and negligence causes of action, those claims are not yet settled and the Court cannot determine, at this point, whether the allegations are sufficient to support the claimed damages.

Request for indemnification.??At page 15, ? 83 of the First Amended Cross-Complaint, Dime, Atneyel and Murad request indemnity against each of the Cross-Defendants.? ?[T]he right to indemnity flows from payment of a joint legal obligation on another?s behalf.??AmeriGas Propane, LP v. Landstar Ranger, Inc.?(2014) 230 Cal.App.4th 1153.? The allegations of the cross-complaint do not support any request for indemnity and the Court strikes the paragraph as irrelevant.

Attorneys? fees.? Defendants/Cross-Complainants do not allege either a contractual or statutory provision supporting their requests for attorneys? fees.? They argue, however, that fees may recovered simply because the parties entered into a contract.? The alleged contract does not include any attorneys? fees provision and cannot support a claim for fees.? Defendants/Cross-Complainants also argue that fees may be recovered under the common fund or tort of another doctrines.? The allegations do not, however, invoke or involve either doctrine.

Emotional distress and punitive damages.? Emotional distress and punitive damages may be recoverable on both fraud and negligence causes of action.? Because the demurrers to those causes of action have, however, been sustained with leave to amend, the motion to strike the emotional distress and punitive damages is moot.