Alderson v. JP Morgan Chase Bank Case No. T12-5158C
Defendants’ Demurrer to the First Amended Complaint is sustained with leave to amend in part and without leave to amend in part.
The demurrer is sustained with leave to amend as to the argument that an indispensable party, Richard Tucker, has not been joined. While Plaintiffs have argued that Mr. Tucker no longer has a financial interest in the property, such allegations are not set forth in the first amended complaint. Moreover, as the purported contract which is at issue includes him as a borrower, his appearance in this action is necessary.
The demurrer is sustained with leave to amend as to the argument that Plaintiff Gerald Alderson lacks standing as a real party in interest. The opposition sets forth various reasons as to why Mr. Gerald Alderson is an interested party. However, those allegations are not set forth in the first amended complaint.
The demurrer is sustained with leave to amend as to all seven breach of contract causes of action based on the argument that the written contract is not attached. Plaintiffs are required to include ALL material terms of the contract or attach the contract to the complaint. Material terms include, but are not limited to, all parties to the contract, the date the contract was entered, and the specific terms of the contract (i.e., paragraphs, sections, or articles) that are alleged to have been breached.
The demurrer to all seven breach of contract causes of action are likewise sustained with leave to amend on the grounds that insufficient facts are set forth demonstrating actual damages, which specific payments were purportedly misapplied, what administrative charges specifically were wrongfully added, what money was actually paid out by the plaintiffs, and that proof of insurance was actually supplied. Specific facts are required. Moreover, the fourth and fifth causes of action are duplicative.
As to the eighth and ninth causes of action for fraud, the demurrer is sustained without leave to amend. As previously ordered by this court, the causes of action fail because they are not pled with specificity: how, when, where, to whom, and by what means. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Also, claims against a corporation must include the names of the persons who made the misrepresentation, their authority, to whom they spoke, what they said, and when it was said. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Furthermore, no facts are alleged to show there was a material misrepresentation of fact, an intent to defraud, or reliance. Additionally, lenders do not owe a debtor a fiduciary duty, so there can be no constructive fraud. Nymark v. Heart Fed. Sav. & Loan Ass’n (1991) 231 Cal.App.3d 1089, 1092. Moreover, a party “may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Aas v. Superior Court (2000) 24 Cal.4th 627.
The unopposed Motion to Strike the attorney’s fees allegations in the first amended complaint is granted with leave to amend. Plaintiffs have failed to allege what statute or contract provision supports attorney’s fees. Code of Civil Procedure § 1021.
Any amended complaint must be served and filed by May 30, 2013.
Defendants’ attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.
This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 582-7835 by 2:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
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