LeeAnn Morgan vs HipCamp Inc et al

Case Number

24CV00291

Case Type

Hearing Date / Time

Fri, 08/09/2024 - 10:00

Nature of Proceedings

CMC; (3) Demurrers

Tentative Ruling

For the reasons set forth below:

1. The Demurrer of defendant Darin Fiechter to plaintiff’s third cause of action for fraudulent misrepresentation and fourth cause of action for breach of contract, of the first amended complaint, is sustained with leave to amend.

2. The Demurrer of defendant Sierra Falso to plaintiff’s third cause of action for fraudulent misrepresentation and fourth cause of action for breach of contract, of the first amended complaint, is sustained with leave to amend.

3. The Demurrer of defendant Freedog Farms @ Cactus Flower Ranch, LLC to plaintiff’s fourth cause of action for breach of contract is sustained with leave to amend.

4. Plaintiff shall file and serve her second amended complaint no later than August 23, 2024.           

Background:

On January 22, 2024, plaintiff LeeAnn Morgan (“Morgan”) filed her original complaint against defendants HipCamp, Inc. (“HipCamp”), Freedog Farms @ Cactus Flower Ranch, LLC (Freedog”), Sierra Fiechter, and Darin Fiechter (“Fiechter”).

On March 7, 2024, Morgan filed the operative first amended complaint (“FAC”), removing Sierra Fiechter as a named defendant, and adding Sierra Falso (“Falso”) The judicial counsel form complaint alleges causes of action for: (1) General Negligence - alleged as to all defendants; (2) Premises Liability - alleged as to Freedog, Fiechter, and Falso; and (3) Intentional Tort. The cause of action for intentional tort is broken up into cause of action “3(a)” and cause of action “3(b).” Intentional tort 3(a) is alleged against Fiechter and Falso. Intentional tort 3(b) is alleged against all defendants.

As alleged in the FAC:

On February 13, 2022, Morgan agreed to stay overnight as a paying guest at HipCamp campground Freedog. (FAC, ¶ GN-1, subd. (1).) Falso and Fiechter are the owners and proprietors of Freedog and agreed to assign Morgan a small sleeping trailer. (Ibid.) Falso told Morgan, at that time, that payment could be made retroactively through the HipCamp website, and this was agreed to by all parties. (Ibid.)

On February 14, 2022, Morgan was exiting the sleeping tailer and a defective step outside of the trailer shifted forward causing Morgan to fall and sustain injuries. (FAC, ¶ GN-1, subd. (2).) Morgan was not warned in advance of the defective step and no warning signs were posted on the trailer. (Ibid.)

On February 22, 2022, Morgan filed an incident report of the fall with Falso, who told Morgan that Freedog had no liability insurance at the time of the incident. (FAC, ¶ GN-1, subd. (3)

On February 28, 2022, Falso sent Morgan an email with Freedog’s private waiver of liability. (FAC, ¶ GN-1, subd. (4).) The waiver of liability was not executed prior to the overnight stay and “had some issues.” (Ibid.)

From February 25, 2022, onward, Morgan “made a good faith effort to pay for the stay via the HipCamp, Inc. booking website, amounting to a verbal contract supported by all parties’ conduct . . . “ (FAC, ¶ GN-1, subd. (5).)

On March 1, 2022, HipCamp represented to plaintiff, by telephone and email, that retroactive bookings were very common, but that Falso had declined the booking, and the payment was not accepted by the HipCamp booking system. (FAC, ¶ GN-1, subd. (6).)

“On information and belief” Falso fraudulently misrepresented to HipCamp that Morgan was not a paying camper, in order to conceal the February 14, 2022, fall. (FAC, ¶ GN-1, subd. (7) Falso did not inform Morgan prior to the stay that an approved booking was conditioned on signing the waiver of liability. (Ibid.) Morgan then submitted a valid claim to HipCamp. (Ibid.)

On May 14, 2022, Morgan sent a “Preservation of Evidence letter” to Freedog with a copy to HipCamp. (FAC, ¶ GN-1, subd. (8).)

HipCamp’s insurance carrier issued a denial letter stating that since no approved record of Morgan’s stay was in their computer system, coverage would be denied. (FAC, ¶ GN-1, subd. (9).)

The defendants who “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity” were Falso and Fiechter, owners and proprietors of Freedog. (FAC, ¶ Prem.L-3.)

Intentional tort cause of action 3(a), alleged against Falso and Fiechter, sets forth the elements of fraud, reiterates the above allegations and then alleges: “Defendant Sierra Falso, agent of Freedog Farms @ Cactus Flower Ranch, made fraudulent misrepresentations to HipCamp, Inc. to induce HipCamp to decline plaintiff’s retroactive booking. This in turn resulted in damage to plaintiff by HipCamp, Inc. blocking all recovery from the injuries sustained from the incident on a HipCamp, Inc. partnered and maintained property.” (FAC, ¶ IT-1 - Cause of Action 3(a).)

Intentional tort cause of action 3(b), alleged against all defendants, sets forth the elements of breach of contract and alleges: “All named defendants had altered the terms of the contract unbeknown to plaintiff after the incident, and thereafter breached the original contract with plaintiff by their ensuing conduct and actions after the Feb 14, 2022 incident on the Freedog Farms premises by their denial of plaintiff’s camper-status and injury liability.” (FAC, ¶ IT-1 - Cause of Action (3)(b).)

As it is clear that Morgan’s Intentional Tort cause of action 3(a) is intended to be a fraudulent misrepresentation cause of action, it will be treated as such and referred to as the third cause of action. As it is also clear that Morgan’s Intentional Tort cause of action 3(b) is intended to be a breach of contract cause of action, it will be treated as such and referred to as the fourth cause of action. Morgan acknowledges that these are the intended causes of action.

Fiechter demurs to the third cause of action for fraudulent misrepresentation, and the fourth cause of action for breach of contract, on the grounds that the FAC fails to state facts sufficient to constitute a cause of action.

Falso also demurs to the third cause of action for fraudulent misrepresentation, and the fourth cause of action for breach of contract, on the grounds that the FAC fails to state facts sufficient to constitute a cause of action.

Freedog demurs to the fourth cause of action for breach of contract on the ground that the FAC fails to state facts sufficient to constitute a cause of action.

Morgan opposes the demurrers arguing that the demurrers should be overruled because the FAC is a judicial council form complaint, that the FAC states facts sufficient to constitute causes of action for fraudulent misrepresentation and breach of contract, and that her discovery responses have provided further elaboration and particularity sufficient to satisfy the required elements. Morgan sets forth proposed amendments to the FAC in the event the court finds the demurrers have merit.

Analysis:

As an initial matter, Morgan argues by way of all her oppositions that her FAC is not subject to demurrer because it is on the “Judicial Council - approved pleading forms.” That argument fails because judicial council form complaints are subject to demurrer just like any other complaint. “In some cases, merely checking a box on a Judicial Council form complaint will be sufficient. In other cases, such as this one, where specific allegations need be alleged, the form complaint is like a partially completed painting. It is up to the pleader to add the details that complete the picture. The form complaint here, standing alone, is no more immune to demurrer than any other complaint that fails to meet essential pleading requirements to state a cause of action.” (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

            “(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

            “(b) The person who filed the pleading does not have the legal capacity to sue.

            “(c) There is another action pending between the same parties on the same cause of action.

            “(d) There is a defect or misjoinder of parties.

            “(e) The pleading does not state facts sufficient to constitute a cause of action.

            “(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

            “(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

            “(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“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.)

              Third Cause of Action for Fraudulent Misrepresentation

As noted above, the third cause of action is alleged against Fiechter and Falso. Both of them demur to the cause of action.

“ ‘To establish a claim for fraudulent misrepresentation, the plaintiff must prove: ‘ “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to plaintiff.” ’ ” [Citation.]” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605-606.)

“To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged ‘facts sufficient to establish every element of that cause of action.’ [Citation.]” (Williams v. Sacramento River Cats Baseball Club, LLC (2019) 40 Cal.App.5th 280, 286.)

“For policy reasons, some causes of action, such as fraud and negligent misrepresentation, must be pleaded with particularity - that is, the pleading must set forth how, when, where, to whom, and by what means the representations were made. [Citation.]” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028.)

As to Fiechter: the FAC does not satisfy the pleading requirements for any of the elements of fraudulent misrepresentation because the primary act that must be alleged is a false representation by the defendant to the plaintiff. Nowhere in the FAC does Morgan plead that Fiechter ever communicated anything to her. In her opposition, as well as in her original complaint, Morgan claims that Fiechter “verbally assaulted” her. As that would require the court to consider extrinsic evidence that does not appear on the face of the FAC, or a matter of which the court may take judicial notice, the court may not consider that argument. Even if the court were permitted to consider that assertion, it would not constitute fraudulent misrepresentation. Fliechter’s demurrer to the third cause of action for fraudulent misrepresentation will be sustained.

As to Falso: The FAC alleges that Falso “fraudulently misrepresented plaintiff’s official camper status to HipCamp’s service agent as ‘not a paying guest’ after plaintiff did not retroactively sign the Freedog Farms at Cactus Flower Ranch ‘waiver.’ ” (FAC, ¶ IT-1) The FAC also states that Falso “made fraudulent misrepresentations to HipCamp, Inc. to induce HipCamp to decline plaintiff’s retroactive booking.” (Ibid.) There are no allegations of a fraudulent misrepresentation to Morgan, or any of the other required elements. Falso’s demurrer to the third cause of action for fraudulent misrepresentation will be sustained for the same reasons that Fiechter’s demurrer will be sustained.

“If there is a reasonable possibility that a plaintiff can amend his complaint to cure the defects, leave to amend must be granted.” (Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 674.)

As this is the first demurrer, and there may be a possibility that Morgan can amend the complaint to cure the defects, Morgan will be given leave to amend the cause of action. Without giving legal advice, the court will note that the additional proposed allegations contained in Morgan’s opposition will not be adequate to state facts sufficient to constitute a cause of action for fraudulent misrepresentation as to any defendant.

              Fourth Cause of Action for Breach of Contract

The fourth cause of action is alleged against all defendants. Fiechter, Falso, and Freedog demur to the cause of action.

“A contract is an agreement to do or not do a certain thing.” (Civ. Code, § 1549.)

“It is essential to the existence of a contract that there should be:

              “1. Parties capable of contracting;

              “2. Their consent;

              “3. A lawful object; and,

              “4. A sufficient cause or consideration.” (Civ. Code § 1550.)

The essential elements of a cause of action for breach of contract are “(1) the contract; (2) the plaintiff’s performance of the contract or excuse for nonperformance; (3) the defendant’s breach; and (4) the resulting damage to the plaintiff.” (Richman v Hartley (2014) 224 Cal. App. 4th 1182, 1186.)

“A contract is either express or implied.” (Civ. Code, § 1619.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.)

Implied contractual terms ordinarily stand on equal footing with express terms. (See, e.g., Kahsmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 829.)

Typically, in a breach of contract action, plaintiffs either set out the terms of a contract verbatim, or, more frequently, include a copy of the contract as an exhibit to the complaint. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972 (Heritage), addresses this often-argued issue. Heritage does not require plaintiffs to plead all terms of the contract verbatim or to include a copy of the contact as an exhibit to the complaint. Heritage specifically holds that a contract may be pleaded by its legal effect. “In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms.” (Id., at p. 993, italics added.)

Here, at the very least, Morgan’s allegations regarding breach of contract are highly confusing.

The FAC initially states, under the negligence cause of action: “Plaintiff nonetheless made a good faith effort to pay for the stay via the HipCamp, Inc. booking website, amounting to a verbal contract supported by all parties’ conduct under Cal. Civ. Code Secs. 1549, 1550.” (FAC, ¶ GN-1, subd. 5.) The allegation that Morgan attempted to pay for her stay in no way describes the creation of a contract.

Under her breach of contract cause of action, Morgan makes representations that “both parties” or “defendants” entered into a contract. Morgan does not set forth the substance of of the alleged contract’s relevant terms, which of the defendants contracted with her, her performance of any terms of a contract or excuse for nonperformance, any breach of terms of the alleged contract by any of the named defendants, or any resulting damage.

The demurrers to Morgan’s fourth cause of action for breach of contract will be sustained. As with the third cause of action, Morgan will be given leave to amend.

Also, as with the third cause of action, the additional proposed allegations contained in Morgan’s opposition will not be adequate to state facts sufficient to constitute a cause of action for breach of contract as to any of the demurring defendants.

As Morgan has been utilizing the optional Judicial Council Form Complaints, the court notes that there is a specific form for a breach of contract cause of action, as well as a specific form for a fraud cause of action.