Mark Shevitz et al vs Bradley G Vernon et al

Case Number

23CV04471

Case Type

Hearing Date / Time

Fri, 03/01/2024 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

For all reasons discussed herein, the court overrules the demurrer of defendants Bradley G. Vernon and Shannon Vernon to plaintiffs’ complaint. Defendants shall file and serve their answer to the complaint on or before March 11, 2024.

Background:

On October 10, 2023, plaintiffs Mark Shevitz (Mark) and Kathleen Shevitz (Kathleen), Trustees of the Shevitz Family Trust, Dated August 6, 2013 (collectively, plaintiffs), filed a complaint for specific performance and damages against defendants Bradley G. Vernon, Shannon Vernon, Shaun Lynch (Lynch), and Evoke Design, Inc. (Evoke), alleging five causes of action: (1) breach of contract – specific performance; (2) breach of implied covenant of good faith and fair dealing; (3) negligent misrepresentation; (4) fraud and intentional deceit; and (5) injunctive relief. (Note: Due to common surnames, the court will at times refer to plaintiffs by their first names. No disrespect is intended.) As alleged in the complaint:

Plaintiffs own and reside at 4000 Cuervo Avenue in Santa Barbara, California (the Shevitz property). (Compl., ¶ 1.) Bradley Vernon and Shannon Vernon (collectively, the Vernons) own and reside at property adjacent to the Shevitz property and located at 3990 Cuervo Avenue in Santa Barbara, California (the Vernon property). (Compl., ¶¶ 2, 8.) The Shevitz property and the Vernon property are located in a common interest development known as Hope Ranch which is governed and managed by the Hope Ranch Park Homes Association (the Association). (Compl., ¶ 8.) As members of the Association, plaintiffs and the Vernons have consented to abide by its governing documents including the parties’ rights and obligations with respect to easements, views, privacy, and other equitable servitudes. (Compl., ¶¶ 9-11 & Exhs. 1-5.)

The governing documents of the Association place “paramount” importance on protecting views, privacy, and the rural character of Hope Ranch, and the Association is obligated to disapprove of architectural plans if the proposed development would obstruct the views or intrude upon privacy from neighboring properties. (Compl., ¶ 12.) Plaintiffs have enjoyed views of the Santa Ynez Mountains, the Santa Barbara Channel, gently down sloping vegetation, and another historic Spanish Colonial Revival style home (the historic home) from the Shevitz property. (Compl., ¶ 14.)

Lynch is the principal, founder and Chief Executive Officer of Evoke, a corporation located in Santa Barbara, California, that specializes in residential and commercial design and land use planning. (Compl., ¶ 3.) In 2018, Lynch prepared architectural plans (the plans) to renovate the existing residence on the Vernon property (the project) which were submitted to the Association for approval. (Compl., ¶¶ 3, 15.) The plans for the project included the construction of a cabana (the Cabana) adjacent to a proposed new pool. (Compl., ¶ 15.)

In 2018 and 2019, plaintiffs expressed, in written correspondence and at Association meetings, concerns about the height, placement, and compatibility of the Cabana and its adverse effect on the existing views from and privacy of the Shevitz property. (Compl., ¶¶ 16-18 & 23-24.) The initial plans for the project were not approved at an Association meeting on October 24, 2018, because “it would interfere with and obstruct” the views from neighboring properties. (Compl., ¶ 19.)

The plans were presented to the Association for final review on October 2, 2019. (Compl., ¶ 24.) Subsequent approval of the project was conditioned on “Maintain[ing] View Corridors in Perpetuity.” (Ibid). In addition, at an Association meeting on October 23, 2019, the landscape plan for the project noted that the Vernons would protect views in the area where the Cabana was proposed. (Compl., ¶ 25.) Due to a lack of clarity and satisfactory response to plaintiffs’ concerns, the Association suspended discussion and final review of the project until the Association’s November meeting. (Ibid.) During the October 23, 2019 meeting, Mark agreed to grant Lynch and an Association board member access to the Shevitz property to assess the views. (Compl., ¶ 26.)

On October 24, 2019, a meeting between the Association and Lynch was held at the Shevitz property to discuss the project and plaintiffs’ concerns. (Compl., ¶ 27.) Plaintiffs were not present at the October 24, 2019, meeting. (Ibid.) At the meeting, it was decided that Lynch would produce a “CAD” image showing the placement of the Cabana. (Ibid.) On November 13, 2019, the Association notified Mark that, in order for the project to receive final approval, Lynch had agreed to produce the CAD image which would depict the placement of the Cabana as viewed from one window at the Shevitz property. (Compl., ¶ 29.)

On November 14, 2019, Mark stated his disagreement with the CAD image because the view shown in that image was from the ground level and not from main view areas of the Shevitz property, which were substantially higher. (Compl., ¶ 30.) Mark also stated that he would not accept verbal reassurance form Lynch regarding the impact the Cabana would have on the Shevitz property’s view, but that Mark would drop his concerns upon receipt of an enforceable document ensuring that the Cabana would not impact the existing views from the Shevitz property. (Ibid.)

On November 15, 2019, the Association, Mark, and Lynch met at the Shevitz property. (Compl., ¶ 31.) Lynch installed one story-pole which Lynch affirmatively stated represented the farthest western leading edge of the Cabana. (Ibid.) Plaintiffs’ existing southern view of the coast, with the historic home in the lower foreground and the ocean and Channel Islands visible above it, lay immediately west of where Lynch had erected the story pole that Lynch represented depicted the western-most, downslope edge of the Cabana. (Ibid.)

Lynch assured everyone present at the meeting, including Mark, that the single story pole was positioned in accordance with the plans, that the story pole accurately represented the location of the western-most edge of the Cabana, that the Cabana would be constructed entirely to the east of the story pole erected by Lynch, and that the story pole accurately represented the totality of the impact that the Cabana would have on the view from the Shevitz property. (Compl., ¶ 32.) Lynch also took a photograph from the window in plaintiffs’ living room (the photo) showing the story pole’s placement in relation to plaintiffs’ protected view. (Ibid.)

On November 18, 2019, Mark sent an email to the Association, Lynch and the Vernons stating that, based on the photo and the annotations to page A305 of the plans (plan page A305) showing that the story pole represented the exact location and approximate height of the downslope western edge of the Cabana, Mark’s concerns about the Cabana’s impacts on plaintiffs’ view had been addressed. (Compl., ¶ 33.) In a response email dated November 20, 2019 (the Lynch email), Lynch stated that “ ‘[w]e are confident that there will be no impact to the Shevitz’s view …’ ”, that “ ‘the story pole location erected was only to show the western, leading edge of the Cabana, not the finished height of the cabana’ ”, and that “ ‘… even with an increase in height, there would be no view obstruction’ ”. (Compl., ¶ 34, emphasis omitted.)

On November 20, 2019, the Lynch email, the photo, and plan page A305 (collectively, the agreement) were signed by Mark and Lynch. (Compl., ¶ 35 & Exh. 6.) In exchange for the agreement, plaintiffs dropped their opposition to the project. (Compl., ¶ 35.) On the same date, and after Mark and Lynch signed the agreement, the Association granted final approval of the plans and subsequently issued a building permit allowing the Vernons to begin construction of the project. (Compl., ¶ 37.)

Due to the Covid-19 emergency, the Vernons did not commence construction of the Cabana until May 2022. (Compl., ¶ 38.) After construction of the Cabana began, it became apparent to plaintiffs that Lynch and the Vernons were constructing the Cabana directly in plaintiffs’ view corridor such that it would entirely obstruct their view of the historic home. (Compl., ¶ 41.)

On May 11, 2022, Mark informed the Vernons and the Association that the Cabana was not being constructed as represented by and Lynch and Evoke, and provided photographs showing that the Cabana was obstructing the protected view from the Shevitz property. (Compl., ¶ 42.) On May 18, 2022, the Association issued a correction notice seeking confirmation from the Vernons that the Cabana was being built in accordance with the plans and requesting verification by a licensed surveyor of the location, finish floor height, and vertical wall height of the Cabana. (Compl., ¶ 45.)

Mark attended an Association board meeting on May 24, 2022, at which Mark alerted the Association to the fact that the Vernons and Lynch were building the Cabana in a way that blocked plaintiffs’ view corridor, in contravention of the agreement. (Compl., ¶ 46.) It was unknown to plaintiffs that, at the time Mark signed the agreement, the story pole that Lynch and the Vernons represented as the northwest corner of the Cabana actually reflected the location of the Cabana’s northeast corner. (Compl., ¶ 47.) Instead of the Cabana being built to the east of the story pole as promised and agreed to, the Vernons and Lynch were constructing the Cabana entirely to its west and blocking plaintiffs’ view corridor. (Ibid.)

On May 31, 2022, the Association notified Mark that they would not take any further action because the Vernons represented that the Cabana was being built according to the plans. (Compl., ¶ 48.) On December 13, 2022, plaintiffs made a written request to engage in the Association’s dispute resolution process. (Compl., ¶ 55.) The dispute resolution process continued until May 31, 2023; at which time the Association informed plaintiffs that it had decided to not take any action. (Ibid.)

Since May 31, 2022, the Vernons and Lynch have refused to stop construction of the Cabana despite being notified by Mark that the Cabana was being built in the wrong location blocking plaintiffs’ view, have failed to provide any proof that the story pole was erected in the correct and same location where the northwest corner of the Cabana was being built, and have made no attempt to abate, correct or mitigate the impact of the Cabana. (Compl., ¶ 52.) At the time that defendants entered into the agreement, they knew that the intended location for the Cabana would obstruct plaintiffs’ view and deliberately misrepresented the placement of the story pole to deceive plaintiffs and induce them drop their opposition to the plans. (Compl., ¶ 53.)

On November 28 and December 11, 2023, Lynch and Evoke filed, respectively, an answer and an amended answer to plaintiffs’ complaint generally denying its allegations and asserting thirteen affirmative defenses.

On December 6, 2023, the Vernons filed a general demurrer to each cause of action alleged in the complaint on the grounds that plaintiffs have failed facts sufficient to state each cause of action. The Vernons also demur to the second cause of action on the grounds that plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing is “superfluous” and to the fifth cause of action on the grounds that injunctive relief is not a remedy.

Plaintiffs oppose the demurrer. In addition, on January 23, 2024, plaintiffs filed a notice of errata to correct allegations appearing in paragraphs 33, 35, 60, 97, and 98 of plaintiffs’ complaint.

Court records reflect that on January 24, 2024, Lynch and Evoke filed a notice of related case identifying case number 23CV05093 entitled Mark Shevitz, et al. v. Hope Ranch Park Homes Association, et al., (the Association action) as related to the present action. On February 23, 2024, the court order this matter related to the Association action.

Analysis:

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “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.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)

The demurrer to the first cause of action for breach of contract and the second cause of action for breach of the implied covenant of good faith and fair dealing:

In the first cause of action for breach of contract, plaintiffs allege that the agreement constitutes a contractual relationship between the parties in which the Vernons agreed that the story pole depicted in the photo accurately depicts the placement of the western-most corner of the Cabana, that the Cabana would be sited entirely to the east of the story pole, and that the Cabana would not interfere with plaintiffs’ protected view. (Compl., ¶¶ 60-62.) Plaintiffs further allege that, pursuant to and in exchange for the agreement, they agreed to “drop their concerns and acquiesce to the … project, thereby allowing the [Association] to grant the project final approval and issue the requisite permits.” (Compl., ¶ 63.) Plaintiffs allege that after the Vernons entered into the agreement, plaintiffs ceased their opposition to the Cabana which in turn convinced the Association to approve the project. (Compl., ¶ 64.)

Plaintiffs allege that the Vernons breached the agreement by failing to construct the Cabana in the location specified in the agreement, by refusing to relocate the Cabana to the position that was represented by the Vernons and agreed to by plaintiffs in the agreement, and by refusing to make changes to the design of the Cabana so that it will not obstruct plaintiffs’ view. (Compl., ¶ 65.) As a result of the Vernons’ breach of the agreement, plaintiffs’ view of the historic home has been obstructed. (Compl., ¶¶ 66, 67.) Plaintiffs seek specific performance of the agreement requiring the Vernons to remove the Cabana and restore plaintiffs’ view. (Compl., ¶ 68.)

The Vernons contend that plaintiffs have failed to allege the material terms of the purported contract (i.e., the agreement), including whether the view of the historic home is protected under the Association’s governing documents, whether the Vernons agreed to limit the dimensions of the Cabana in any specific manner, and whether plaintiffs waived any claims regarding the location of the Cabana. The Vernons also assert that plaintiffs have failed to allege adequate consideration for the agreement, have failed to allege a breach of the agreement by the Vernons, and have failed to sufficiently allege damages because plaintiffs’ view of the historic home is not protected under the governing documents attached to the complaint.

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

A general demurrer to a complaint based on a written contract “admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible. [Citation.] While plaintiff's interpretation of the contract ultimately may prove invalid, it [is] improper to resolve the issue against [the plaintiff] solely on [the plaintiff’s] own pleading. ‘In ruling on a demurrer, the likelihood that the pleader will be able to prove his allegations is not the question.’ [Citation.]” (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.)

As the demurrer admits the pleaded meaning of the agreement alleged in the complaint, the court will accept as true the meaning offered by plaintiffs. Giving the complaint a reasonable interpretation, including facts which may be inferred from those expressly alleged, plaintiffs allege that pursuant to the agreement, the Vernons agreed to construct the Cabana in the manner set forth in the agreement so as not to obstruct plaintiffs’ view of the historic home in exchange for plaintiffs’ agreement to cease opposing the construction of the Cabana. Accepting the allegations as true, the allegations further discussed above are sufficient to allege a contract between the parties, including the essential terms of the contract with respect to the location in which the Cabana would be built. (Miles v. Deutsche Bank Nat’l Trust Co. (2015) 236 Cal.App.4th 394, 401-402.) Moreover, to the extent there exist ambiguities, the agreement is reasonably susceptible to the meaning attributed by plaintiffs in the complaint. (Connell v. Zaid (1969) 268 Cal.App.2d 788, 794-795.)

Allegations that the Vernons failed to construct the Cabana as specified in the agreement which resulted in the Cabana obstructing plaintiffs’ view of the historic home, as further discussed above, are also sufficient to allege a breach of the agreement by the Vernons.

Though the Vernons contend that plaintiffs’ view of the historic home is not “protected” under the Association’s governing documents, even if the court were to assume without deciding that any claim plaintiffs compromised by entering into the agreement as further discussed above was of questionable validity (and the court presently makes no findings in this regard), “[c]ompromise of doubtful claim, asserted and maintained in good faith, constitutes sufficient consideration for a new promise, even though it may ultimately be found that claimant could not have prevailed; and this is true whether claim be in suit or not.” (Khasigian v. Arakelian (1960) 180 Cal.App.2d 10; see also Carey v. Kraft-Phenix Cheese Corp. (1938) 24 Cal.App.2d 517, 525 [“[t]he compromise of a claim which is asserted in good faith and of the validity of which the parties at the time entertain a doubt, and about which there is a bona fide controversy, is a valuable consideration and will support a promise or a contract”].)

The allegations of the complaint demonstrate that plaintiffs held a good faith belief in the validity of their objections to the project including objections based on protections provided in the governing documents which purportedly encompass plaintiffs’ views of the historic home. On demurrer, the court does not consider whether or not a plaintiffs can prove these allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) For these reasons, the complaint sufficiently alleges adequate consideration for the agreement based on a compromise of plaintiffs’ objections to the project.
 

With respect to whether plaintiffs are entitled to specific performance of the agreement, a demurrer challenges only the legal sufficiency of the complaint. (See Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732; Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381 [“[n]either trial nor appellate courts should be distracted from the main issue, or rather, the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action”].) Therefore, even if a pleading “prays for relief to which the [pleader] is not entitled, or fails to seek the proper relief,” is it nevertheless good against a general demurrer “if it pleads facts sufficient to show that the pleader is entitled to some equitable relief.” (Woodley v. Woodley (1941) 47 Cal.App.2d 188, 190-191; see also Moropoulos v. C.H. & O.B. Fuller Co. (1921) 186 Cal. 679, 688 [“[t]he prayer for damages itself is not a part of the complaint, subject to demurrer, and the fact that plaintiff has prayed for exemplary damages, or any other relief to which he may not be entitled does not affect the sufficiency of his complaint”].) To the extent the demurrer challenges plaintiffs’ ability to allege or establish damages including whether plaintiffs are entitled to specific performance, it cannot be rightfully sustained. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.)

For all reasons discussed above, the court finds that plaintiffs have adequately alleged a cause of action for breach of contract against the Vernons. Therefore, the court will overrule the demurrer to the first cause of action alleged in the complaint.

The demurrer to the second cause of action for breach of the implied covenant of good faith and fair dealing is based on effectively the same arguments further discussed above. The Vernons argue that, because plaintiffs have failed to allege a cause of action for breach of contract including that the agreement required the Vernons to build the Cabana in a manner that did not block the view of the historic home, plaintiffs have failed to allege facts sufficient to constitute a cause of action for breach of the implied covenant of good faith and fair dealing. The same analysis applies. (See Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1204 [the covenant of good faith and fair dealing is “implied by law in every contract”].)

 In addition, the Vernons contend that the second cause of action is duplicative of the first cause of action and therefore may be disregarded as superfluous. The Vernons effectively argue that the second cause of action is redundant. However, redundancy is not grounds for a demurrer. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 302-303.) Accordingly, for all reasons further discussed above, the court will also overrule the demurrer to the second cause of action alleged in plaintiffs’ complaint.

The demurrer to the third cause of action for negligent misrepresentation and the fourth cause of action for fraud:

The Vernons contend that plaintiffs have failed to allege “where” the Vernons represented that the location of the Cabana would not block plaintiffs’ view of the historic home. The Vernons further assert that plaintiffs’ view of the historic home is not protected. For this reason, the Vernons argue, plaintiffs could not have detrimentally relied on any representations regarding the location of the Cabana. The Vernons also assert that plaintiffs have failed to allege that the Vernons intended to induce plaintiffs into believing that the Cabana would not block the view of the historic home. For these reasons, the Vernons contend that plaintiffs have failed to plead causes of action for negligent misrepresentation and fraud with the requisite specificity.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] … [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Id. at p. 645, original italics, internal quotation marks omitted.)

Though a cause of action for negligent misrepresentation (here, the third cause of action) is similar to a cause of action for fraud (here, the fourth cause of action), there exist key differences in the elements of these claims. (See, e.g., West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792 [noting that the elements of negligent misrepresentation and fraud are the same “except for the second element”].) “The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage….In contrast to fraud, negligent misrepresentation does not require knowledge of falsity.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243 (Apollo).) To sufficiently allege a claim for negligent misrepresentation, “a positive assertion is required; an omission or an implied assertion or representation is not sufficient.” (Ibid.)

The affirmative representations that plaintiffs allege were false include that the story pole erected by Lynch represented the northwest corner of the Cabana, and that the Cabana would not interfere with plaintiffs’ view of the historic home. Plaintiffs further allege that these representations were made in the agreement, and that the Vernons “had to have” known, or knew, but failed to disclose that the story pole was actually erected in the northeast corner of the Cabana and that the Cabana would therefore be sited to the west of the story pole interfering with plaintiffs’ view of the historic home. Plaintiffs allege that the Vernons never intended to perform their contractual obligations, and that these purportedly false representations induced plaintiffs into dropping their objections to the project which had previously created hurdles for the Vernons in obtaining final approval and permits for the project. Plaintiffs also allege that the placement of the Cabana as represented by the Vernons was material in plaintiffs’ decision to enter into the agreement. Plaintiffs later discovered that the story pole had been erected at the northeast corner of the Cabana, and not as represented by the Vernons. (See Compl., ¶¶ 78, 87, 88, 89, 93, 98, 99, 100, 101, 102, 104, 105, 106.)

The allegations of the complaint described above are sufficiently specific to allege a cause of action for fraud based on alleged statements regarding the location of the story pole depicting where the Cabana would be built and whether the Cabana would interfere with plaintiffs’ view of the historic home, which plaintiffs allege were made at the time of the agreement and were false. Furthermore, these allegations are sufficiently specific to give the Vernons notice of what specific representations were made, including how, when, where, to whom, and by what means the representations were tendered to plaintiffs. (Apollo, supra, 158 Cal.App.4th at p. 240; Lazar, supra, 12 Cal.4th at p. 645; see also Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838 [requirement that fraud be alleged with specificity provides notice to the defendant and permits the court to “weed out nonmeritorious actions on the basis of the pleadings”].)

Further, “even in the pleading of fraud, the rule is relaxed when it is apparent from the allegations that the defendant necessarily possesses knowledge of the facts.” (Quelimane, supra, 19 Cal.4th at p. 47.) Giving the complaint a reasonable interpretation, plaintiffs have sufficiently alleged expressly and by inference that the Vernons necessarily possessed knowledge, at the time the representations were made, that location of the story pole and the site where the Cabana would be built were not as represented to plaintiffs.

In addition, allegations that the Vernons intentionally misrepresented material facts regarding the location of the story pole or the site of the Cabana are also adequate. (Hoffman v. Kirby (1902) 136 Cal. 26, 28; see also Hall v. Mitchell (1922) 59 Cal.App. 743, 749 [in setting forth the necessary element of intent, a “simple and direct” allegation that the representation was made with the requisite intent would be sufficient]; City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803 [“[a]llegations of the defendant's knowledge and intent to deceive may use conclusive language”].) For these reasons, plaintiffs have sufficiently alleged the elements of knowledge and intent.

For all reasons further discussed above, the allegations of the complaint state causes of action for fraud and negligent misrepresentation with the requisite particularity notwithstanding whether plaintiffs can prove these allegations. Therefore, the court will overrule the demurrer to the third and fourth causes of action alleged in the complaint.

Demurrer to the fifth cause of action for injunctive relief:

As grounds for their demurrer to the fifth cause of action for injunctive relief, the Vernons contend that an injunction is neither a remedy nor a cause of action. The Vernons further contend that the causes of action alleged in the complaint do not support injunctive relief because monetary damages are sufficient, and that plaintiffs’ claim for injunctive relief necessarily fails because the other causes of action alleged in the complaint cannot be maintained.

“ ‘Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.’ [Citation.]” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356.) As such, the fifth cause of action for injunctive relief is not subject to demurrer under Code of Civil Procedure section 430.10, subd. (e). Further, the court deems the fifth cause of action not as a separate cause of action, but as related to the remedies sought under the first, second, third, and fourth causes of action which for reasons noted above, each state a cause of action for relief. (Id. at p. 355.) In addition, to the extent the demurrer is generally directed to whether plaintiffs are entitled to injunctive relief as a remedy, it cannot be sustained for reasons further discussed above. Therefore, the court will overrule the demurrer to the fifth cause of action for injunctive relief.