17-CIV-05156 CRUZ DE JESUS VS. CHRISTOPHER DABIT, ET AL.
CRUZ DE JESUS CHRISTOPHER DABIT
ARTHUR A. NAVARETTE MARK J. SOLOMON
MOTION FOR JUDGMENT ON PLEADINGS TENTATIVE RULING:
Defendant Dabit’s motion for judgment on the pleadings is GRANTED, in part, and DENIED, in part.
With respect to Plaintiff’s claim for negligent misrepresentation, Defendant provides no pertinent authority in support of his assertion that a misrepresentation that serves as the basis of the claim must be verbalized. However, there is authority holding that an “affirmative misrepresentation” is required, and that an “implied assertion” is not enough. E.g., Lopez v. Nissan North America, Inc. (2011) 201 CA4th 572, 596, 135 CR3d 116, 136. Plaintiff has not alleged an affirmative misrepresentation by Defendant. Accordingly, Defendant’s motion for judgment with respect to Plaintiff’s cause of action for negligent misrepresentation is GRANTED, with leave to amend the complaint to add facts relating to an affirmative misrepresentation, to the extent such facts exist.
With respect to Plaintiff’s cause of action for fraud, Plaintiff has alleged that Defendant represented that MAC Investments had the ability and intent to fulfill its obligations to Plaintiff under the terms of the Settlement Agreement, that Defendant knew those representations to be false, that Defendant intended to deceive Plaintiff, and that Plaintiff relied on Defendant’s representations. Unlike a claim for negligent misrepresentation, a cause of action for fraud may be based on an implied assertion. Thrifty-Tel, Inc. v. Bezenek (1996) 46 CA4th 1559, 1567, 54 CR2d 468, 473-474. Defendant’s motion for judgment with respect to Plaintiff’s cause of action for fraud is DENIED.
Finally, with respect to Plaintiff’s claim for intentional interference with a contract, the questions of whether Defendant is immune because he was acting within the scope of his employment, or whether he is privileged because he was acting in the best interests of the corporation, are questions of fact, not subject to resolution in an attack on the pleadings. Collins v. Vickter Manor, Inc., 47 Cal. 2d 875, 883; Culcal Stylco, Inc. v. Vornado, Inc., 26 Cal. App. 3d 879, 882–83. As a result, Defendant’s motion for judgment with respect to Plaintiff’s cause of action for intentional interference is DENIED.