Mystica Fleury vs Byron Richard Tarnutzer et al

Case Number

22CV02886

Case Type

Hearing Date / Time

Fri, 01/12/2024 - 10:00

Nature of Proceedings

Demurrer and Motion to Strike

Tentative Ruling

1. The Tarnutzer Defendants’ demurrer is overruled.
2. The Tarnutzer Defendants’ motion to strike clam for punitive damages is denied.
3. The Tarntuzer Defendants shall file and serve their answer to plaintiff’s second amended complaint no later than February 2, 2024.

Background:

This action was commenced on July 26, 2022, when plaintiff Mystica Fleury (Fleury) filed a complaint against defendants Byron Richard Tarnutzer (aka Rick Tarnutzer), Vonna Carol Tarnutzer, and American Interior, alleging nine causes of action related to an underlying transaction in which defendant Rick Tarnutzer (Rick) induced Fleury to purchase a run-down property and hire him and his wife, Vonna Carol Tarnutzer (Vonna), to perform design and construction work to remodel the property. [Note: In order to avoid any confusion, the Court will refer to the Tarnutzer defendants by their first names; no disrespect is intended.] The complaint alleged that in reliance on various representations made by defendants, plaintiff paid substantial sums of money to defendants for their work. It alleged further that defendants were not licensed contractors, failed to obtain any permits for the work, failed to provide promised documentation of work completed, invoices, proof that subcontractors had been paid, failed to perform the work in a workmanlike manner, charged in excess of the hourly wage they had promised the work would be performed for, charged a fee for acting as general contractor when they had promised they would not do so, impeded progress on the project by failing to timely pay subcontractors, and stopped work prior to completion when plaintiff challenged the billing.

On October 10, 2022, Rick and Vonna appeared in this action through counsel, by filing a demurrer to and motion to strike the complaint, setting their hearings for February 2, 2023.

On January 23, 2023, Fleury filed her first amended complaint (FAC), which mooted the hearings on the demurrer and motion to strike.

Rick and Vonna demurred to the FAC and filed a motion to strike. Fleury then agreed to file a second amended complaint (SAC), which she did on August 24, 2023. The SAC contains causes of action for: (1) Breach of Contract - Services; (2) Breach of the Covenant of Good Faith and Fair Dealing - Services; (3) Violation of the Contractors’ State License Law; (4) Negligence; (5) Concealment; (6) Unfair Business Practices; (7) Accounting; (8) Breach of Contract - Loan Agreement; and (9) False Promise - Loan Agreement.

As alleged in the SAC:

Fleury is the owner of real property located at 540 Owen Road, Santa Barbara (the property). (SAC, ¶ 2.)

Fleury and Rick had been good friends for approximately 18 years, and, through that friendship, Rick learned intimate details of Fleury’s life. (SAC, ¶ 9.) Rick took on a father figure role with Fleury and purported to act as Fleury’s advisor and confidante. (Ibid.)

In May 2020, Rick contacted Fleury with a plan for Fleury to purchase the property, but Fleury was skeptical because the property was rundown. (SAC, ¶ 10.) Rick assured Fleury that he had a crew that would be able to remodel the property quickly and efficiently. (Ibid.) Rick told Fleury that he would manage and run the project because he and Vonna had remodeled many homes, and that it would be a straightforward project. (Ibid.) Rick coached Fleury to tell anyone who asked that Fleury was an owner/builder, when it was really Rick that was pretending to be a general contractor. (Ibid.) Rick told Fleury that permits were not necessary and would only slow down the remodeling process. (Ibid.) Relying on Ricks representations, Fleury believed that permits were either not required or were unnecessary. (Ibid.)

Fleury purchased the property on November 24, 2020, and entered into an oral agreement with Rick, Vonna, and American Interior whereby the defendants agreed to perform design and construction work with an estimated completion date of June 2021. (SAC, ¶ 11.) “The work to be performed by Defendants, and each of them, required a general contractor’s license, as it included, but was not limited to, such things as constructing new bathrooms and closets, moving, and configuring walls, installing cabinetry, replacing plumbing, installing drywall, and doing rough electrical work, among other things. Yet, at no time did Defendants advise Plaintiff that none of them had a contractor’s license.” (Ibid.) Fleury agreed to reimburse defendants for the costs of the work with the understanding that defendants would not charge a fee for acting as general contractor. (Ibid.) Fleury requested that defendants provided her with a total price for the work performed, but they did not do so even though they represented multiple times that they would provide a budget. (Ibid.) “Additional material terms of the agreement were that all work would be up to Code, timely performed to meet the estimated completion date, and that all work would be photographed before walls were closed in as proof that all work was performed according to Code.” (Ibid.)

“Between August 2021, and January 28, 2022, Plaintiff wired approximately $780,000.00 to Defendant Vonna, as directed by Defendants, with respect to work purportedly performed on the project. At all times, Plaintiff was under the belief, based on the conduct of Defendants, that the work on the property was being lawfully completed. However, due to Defendants’ lack of a contractor’s license, no permits, and other factors, the money spent on the project did not go towards any lawful work.” (SAC, ¶ 13.)

On February 24, 2022, a sub-contractor informed Fleury that defendants had not paid them for their work, but when Fleury attempted to questions the subcontractor, she was told that Vonna had instructed him not to speak with Fleury about money. (SAC, ¶ 14.)

On March 9, 2022, Fleury asked Rick for photos of all states of the project, but defendants have failed to provide any photos. (SAC, ¶ 15.) Fleury was supposed to meet with Vonna on March 12, 2022, to review defendants’ invoicing to Fleury, with supporting documents, but the meeting never took place. (SAC, ¶ 16.)

“On or about March 17, 2022, Plaintiff showed a subcontractor on the job a summary of Defendants’ billing rates for every hourly worker on the job that Plaintiff had received from Defendants. The subcontractor told Plaintiff that except for himself, the other workers on the job were not being paid at those rates.” (SAC, ¶ 18.)

Fleury believes, in violation of the oral contract, defendants were charging her a fee for acting as general contractor on the project and were failing to pay workers and subcontractors, despite Fleury having paid defendants for the work at the property. (SAC, ¶ 22.)

In paragraph 24 of the SAC, Fleury sets forth 10 separate alleged breaches of the agreement with defendants.

As of the date of drafting the SAC, Fleury has paid approximately $1,492,066.09 to the defendants on the project, which is still not complete. (SAC, ¶ 25.)

“Plaintiff has been damaged and has incurred, and will incur, expenses for labor and materials to remediate and mitigate the damage inflicted by said Defendants, and/or to repair the substandard work performed by said Defendants, and obtain permits for same, all in an amount to be proven at the trial of this matter . . .” (SAC, ¶ 26.)

“[A]t the time of consummating the agreement alleged above, each of the Defendants knew, but failed to disclose to Plaintiff that each of the Defendants did not hold valid contractor’s licenses to perform the work contemplated under the agreement as required by California law, that each of the Defendants did not have the requisite skill, experience, and knowledge to enable them to perform the home improvement work in a good and workmanlike manner, and that each of the Defendants had no intent to perform per the work as promised, per required permits, and in good and workmanlike manner.” (SAC. ¶ 30.)

The defendants were acting in the capacity of contractors and were in violation of Business & Professions Code sections 7028. subdivision (a). and Fleury is entitled to the remedies provided for by Business & Professions Code section 7031. (SAC, ¶¶ 34, 35, 36, 38.)

Defendants, and their agents under defendants’ supervision and control, negligently performed their functions in connection with the project such that it was left in a defective condition. (SAC, ¶ 41.) In addition to the issues described in paragraph 24 of the SAC, Fleury lists several other defects in paragraph 42 of the SAC.

Defendants had a duty to disclose facts, including that they did not hold valid contractor’s licenses, and knew that they could not lawfully perform the work required without obtaining the correct licenses and obtaining permits. (SAC, ¶ 46.) The defendants concealed this information from Fleury and intentionally led her to believe that defendants had the necessary contractor’s licenses. (Ibid.) “Said Defendants further knew, but failed to disclose to Plaintiff, that that Defendants did not have the requisite skill, experience, and knowledge to enable them to perform the home improvement work in a good and workmanlike manner, and had no intent to perform per the work as promised, per required permits, and in a good and workmanlike manner, fully permitted and free of defects.” (Ibid.)

Rick and Vonna now demur to the SAC and move to strike Fleury’s claim for punitive damages.

The grounds for demurrer for the first through seventh causes of action are based on arguments that they fail to set forth facts sufficient to constitute a cause of action and they are uncertain. The grounds for demurrer for the eighth and ninth causes of action are that they fail to set forth facts sufficient to constitute a cause of action.

Fleury opposes the demurrer and motion to strike.

Analysis:

            Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)

1. Uncertainty

As the first seven causes of action are demurred to on the grounds of uncertainty, the court will address that argument first and then address each cause of action as it pertains to the argument that they fail to set forth facts sufficient to constitute causes of action.

“ ‘[U]ncertain’ ” includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).)

“Demurrers for uncertainty . . . are disfavored. . . . A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

“Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809; disapproved by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300 on other grounds.)

Rick and Vonna argue the merits of their case, which is irrelevant for purposes of ruling on a demurrer. Disregarding the arguments based on the merits of the case, Rick and Vonna do argue that Fleury has failed to allege facts “describing the scope of work engaged in by Defendants or articulating which defendant promised to perform what scope of work.” (Demurrer, p. 5, ll. 26-28.)

Rick and Vonna’s arguments fail. As set forth above, the SAC clearly alleges which defendant made which promise, when the promises were made, and what the scope of the work was to be based on agreement. There is no uncertainty contained in the SAC that would support the sustaining of a demurrer. The demurrer based on the argument that the first seven causes of action are uncertain is without merit and will be overruled.

2. First Cause of Action for Breach of Contract-Services

Rick and Vonna argue that Fleury fails to allege the specific scope of the work to be performed by each defendant, that the substance of the contract is not alleged with particularity, the breach is not alleged with specificity, and that the SAC does not set forth all of the elements of a breach of contract cause of action.

“An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.” (Khoury v. Maly’s of California, Inc., supra, 14 Cal.App.4th at p. 616.)

In Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394 (Miles), the “plaintiff alleged the basic elements of a breach of contract claim. ‘A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.’ (citation.) Plaintiff alleged an express contract to refinance his loan, including the loan balance, the interest rate, and the monthly payment. He alleged he performed by making payments under the agreement. He alleged defendants breached that contract by repudiating it and refusing to accept payments under it. And he alleged he was damaged by various fees he was charged and by being evicted from his home.” (Id., at p. 402.) The court found those allegations sufficient and held that “plaintiff’s failure either to attach or to set out verbatim the terms of the contract was not fatal to his breach of contract cause of action.” (Ibid.)

Here, Fleury has adequately pled the existence of an oral contract to perform services, her performance under the oral contract, defendants’ many breaches of the oral contract, and resulting damages. Rick and Vonna appear to disregard the contentions of the SAC. The demurrer to the first cause of action will be overruled.

3. Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing

Rick and Vonna argue that the second cause of action fails because it assumes the existence of a contract and that without a valid contract the second cause of action fails.

As discussed above, Fleury has adequately pled the existence of an oral contract and a breach by defendants. As such, the demurrer to the second cause of action will be overruled.

4. Third Cause of Action for Violation of State Contractors License Law

Rick and Vonna argue that Fleury has failed to plead the third cause of action with particularity. Specifically, that the scope of work is not alleged, “so that it cannot be determined whether any part of the scope fell within the license law.” (Demurrer, p. 10, ll. 16-19.)

Again, and as explained above, the SAC provides more than sufficient particularity regarding the scope of work agreed upon. There are several specific allegations regarding what the defendants were to do and which of those tasks required a contractor’s license.

The demurrer to the third cause of action will be overruled.

5. Fourth Cause of Action for Negligence

Rick and Vonna argue that the fourth cause of action fails because it is conclusory. However, they fail to articulate how the SAC is conclusory with respect to the negligence cause of action.

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

Fleury clearly alleges sufficient facts of negligence on the part of defendants to overcome demurrer. As such, the demurrer to the fourth cause of action will be overruled.

6. Fifth Cause of Action for Concealment/Fraud

Rick and Vonna argue that the fifth cause of action fails because it is not pled with the requisite specificity.

“ ‘The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]’ ” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

“[F]raud 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.)

“Less specificity should be required of fraud claims “ ‘when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,’ ” [citation]; “ ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. . . .’ ” [Citation.] (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

There are “four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651.)

Allegations of “knowledge” and “intent” are allegations of facts, which are sufficiently alleged through use of the term. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803 [“Allegations of the defendant’s knowledge and intent to deceive may use conclusive language.”].)

The facts alleged in the SAC, as set forth above, are more than adequate, at the pleading stage, to overcome demurrer to the fifth cause of action. The demurrer to the fifth cause of action will be overruled.

7. Sixth Cause of Action for Unfair Business Practices

Fleury’s sixth cause of action is brought under Business & Professions Code section 17200, et seq. 

Rick and Vonna argue that the sixth cause of action fails because it is predicated on the allegations in the first five causes of action and, as such, fails to state a claim. The argument is one paragraph long and fails to explain what about the cause of action is lacking other than to state that “there is no allegation that the alleged actions were part of a ‘business practice.’ ” (Demurrer, p. 13, ll. 5-6.) In their reply brief, Rick and Vonna argue that the cause of action fails because it is “wholly derivative of the other claims.” (Reply, p. 7, ll. 6-8.)

“[U]nfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice . . .” (Bus. & Prof. Code, § 17200.)

Rick and Vonna have failed to substantiate their demurrer to the sixth cause of action. As pled, the SAC contains sufficient allegations that defendants engaged in unlawful, unfair, and fraudulent business practices. The demurrer to the sixth cause of action will be overruled.

8. Seventh Cause of Action for Accounting

Rick and Vonna argue that the seventh cause of action fails because it assumes the existence of a contract and fails to specify scope of work subject to any contractor’s licensing requirement. Again, the argument is one paragraph long and is devoid of any legal authorities. In their reply brief, Rick and Vonna improperly attempt to argue the merits of the case and claim the alleged contract is void. Such argument is not proper on demurrer and will be disregarded.

“An action for an accounting has two elements: (1) “ ‘that a relationship exists between the plaintiff and defendant that requires an accounting’ ” and (2) “ ‘that some balance is due the plaintiff that can only be ascertained by an accounting.’ ” [Citations.]” (Sass v. Cohen (2020) 10 Cal.5th 861, 869.)

Fleury pleads: “An amount is due to Plaintiff from Defendants RICK, VONNA, AMERICAN, and DOES 1 through 20, inclusive, as a result of Defendants improperly charging Plaintiff a fee for acting as general contractor, for failing to pay workers and subcontractors on the job despite Plaintiff making payment to Defendants therefore, and for failing to account that all sums paid by Plaintiff were in fact used for reimbursement of the project expenses as the parties had agreed. The exact disposition of all funds paid by Plaintiff to Defendants is currently uniquely within the knowledge of said Defendants, the exact amount due is currently unknown to Plaintiff, and the amount due to Plaintiff cannot be reasonably determined without an accounting.” (SAC, ¶ 62.)

The SAC adequately pleads a cause of action for an accounting and the demurrer to the seventh cause of action will be overruled.

1. Eighth Cause of Action for Breach of Contract-Loan Agreement

The eighth cause of action is alleged as to Rick only. Although somewhat convoluted, Rick and Vonna appear to argue that the eighth cause of action fails because the SAC does not clearly set forth the purpose of the loan from Fleury to Rick, the SAC does not explain how the proceeds were to be invested, whether the loan had anything to do with the project, and whether or not Rick ever made any payments. No authority is set forth requiring that the cause of action contain said information. And, presumably, Rick would have personal knowledge pertaining to those things.

As set forth above, the elements of breach of contract are the existence of the contract, plaintiff’s performance or excuse for nonperformance, defendant’s breach, and resulting damages.

Fleury has attached a copy of the May 6, 2021 promissory note, that was signed by Rick, to the SAC. The note contains all necessary terms to show the existence of a contract. As quoted above, the SAC contains more than sufficient allegations that Fleury performed on the contract, that Rick breached the contract, and that Fleury suffered damages as a result of the breach.

The demurrer to the eighth cause of action will be overruled.

10. Ninth Cause of Action for False Promise-Loan Agreement

The ninth cause of action is alleged as to Rick only. Rick and Vonna argue that the cause of action is not pled with the requisite specificity.

“One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” (Civ. Code, § 1709.)

Deceit includes:

“1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

“2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

“3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

“4. A promise, made without any intention of performing it. (Civ. Code, § 1710.)

Fleury has alleged that she lent Rick money, that Rick promised to repay the money, that Rick’s representation he would repay the money was false, that Rick made the representation to plaintiff to induce her reliance, that Rick never intended to repay the loan, and that Fleury has suffered damages. (See SAC, ¶¶ 77, 78, 79, 80.)

The ninth cause of action alleges sufficient facts to constitute a cause of action. As such, the demurrer will be overruled as to the ninth cause of action.

            Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Rick and Vonna move to strike the punitive damages claims which are set forth in the fifth cause of action for fraudulent concealment and the ninth cause of action for false promise.

“The question is whether defendants’ conduct may be characterized as “ ‘despicable.’ ‘Despicable conduct’ has been described as conduct which is “ ‘ “... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ ” [Citations.] “ ‘Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ ” [Citation.] As well stated in Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149 . . .: “ ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] . . . Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . .. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ ” [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)

“[F]raudulent concealment is an intentional tort that may support a punitive damage award.” (Nissan Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 829.) Likewise, Fleury’s ninth cause of action for false promise is based on the concept of fraud.

“A fraud cause seeking punitive damages need not include an allegation that the fraud was motivated by the malicious desire to inflict injury upon the victim. The pleading of fraud is sufficient.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.)

Punitive damages are recoverable for fraud actions involving intentional misrepresentation. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241.) “[F]raud alone is an adequate basis for awarding punitive damages.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135.)

As the court finds that Fleury has adequately pled her fraud causes of action the motion to strike will be denied.