- Demurrer to First Amended Complaint
- Motion to Strike
Moving Party: Defendants Pinner Construction Co. and Dirk Griffin
Responding Party: Plaintiffs John and Vicki Sak
Ruling motion 1) Defendants’ Motion to Strike the Second Cause of Action is GRANTED. On the Court’s own motion, the Court strikes the Sixth and Seventh Causes of Action. Defendants’ Demurrer to the Fourth Cause of Action is OVERRULED. Within fifteen (15) days, Defendants shall file an Answer to the First Amended Complaint.
Motion to Strike: On 1/6/20, the Court granted Defendant’s Motion for Judgment on the Pleadings.
As to the First Cause of Action for Breach of Written Contract, the court granted the motion as to Pinner Construction, but denied it as to Dirk Griffin.
Of the four causes of action of the original complaint, the court granted leave only to amend the Third Cause of Action for Fraud. Plaintiff added three new causes of action. These were the Second Causes of Action for Breach of Oral Contract, Sixth Causes of Action for Open Book Account and Seventh Causes of Action Causes of Action for Money Had and Received.
“’Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.’” Zak v. Diesel (2019) 33 Cal.App.5th 431, 456. The three new causes of action do not relate to the Fraud Cause of Action.
“Absent prior leave of court, an amended complaint raising totally new and different causes of action may be subject to a motion to strike under CCP § 436(b). Cal. Prac. Guide Civ. Pro. Before Trial 7:148.1a. (Emphasis original).
In addition, the Court strikes the two other improper causes of action even though Defendant only moved to strike the Second Cause of Action. Code Civ. Proc., § 436 (b) provides that “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The status of all three causes of action are the same.
Ruling Motion 2) The Demurrer is moot as to the Second, Sixth and Seventh Causes of Action. The Fourth Cause of Action for Fraud remains.
In California, fraud must be pled specifically; general and conclusory allegations do not suffice. . . . 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. Plaintiff has alleged this cause of action with particularity. This cause of action is four pages long and complies with these requirements.