promissory fraud claim in California

2022(Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498 .) The trial court sustained the demurrer to the third cause of action on the grounds that the complaint did not plead each element with sufficient particularity: “ ‘Each element [of a promissory fraud claim] must be alleged with particularity.’ [(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060 .)] Plaintiff’s claim for promissory fraud fails because Plaintiff does not plead each element with the requisite particularity.” We agree with the trial court in this respect, particularly as to the allegations regarding intent not

2021Co. (2011) 196 Cal.App.4th 1443, 1453 [the elements of promissory fraud are “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the [promisee]”].) “As with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity.” (Rossberg v. Bank of America, N

2022(Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498 .) The trial court sustained the demurrer to the third cause of action on the grounds that the complaint did not plead each element with sufficient particularity: “ ‘Each element [of a promissory fraud claim] must be alleged with particularity.’ [(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060 .)] Plaintiff’s claim for promissory fraud fails because Plaintiff does not plead each element with the requisite particularity.” We agree with the trial court in this respect, particularly as to the allegations regarding intent not

2021Co. (2011) 196 Cal.App.4th 1443, 1453 [the elements of promissory fraud are “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the [promisee]”].) “As with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity.” (Rossberg v. Bank of America, N

2021Co. (2011) 196 Cal.App.4th 1443, 1453 [the elements of promissory fraud are “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the [promisee]”].) “As with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity.” (Rossberg v. Bank of America, N

2020If we accept Loretta’s evidence as true (which, as noted above, we must), then Loretta made no such promise, and the first element of a promissory fraud claim is missing (Behnke, supra, 196 Cal.App.4th at p. 1453 ), and this constitutes a prima facie showing that the parents accordingly lacked probable cause to bring that claim.

2021(Ibid.) “[T]he intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance.” (Riverisland Cold Storage, Inc. v. 29 Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 (Riverisland); Lazar, supra, 12 Cal.4th at p. 638 [a promissory fraud claim “does not depend upon whether the defendant’s promise is ultimately enforceable as a contract”].) “[P]romissory fraud requires proof of ‘(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promis

2016They also fail to appreciate that a promissory fraud claim may not be based on evidence “of an unkept but honest promise, or mere subsequent failure of performance.” (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 .) The conclusory allegations of “sham grounds” for nonpayment in the Taisei complaint do not plead fraud with sufficient particularity and do not suggest that respondents had evidence of actual fraud, as opposed to simple nonperformance, to support the request for exemplary damages in that complaint.

2021(Ibid.) “[T]he intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance.” (Riverisland Cold Storage, Inc. v. 29 Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 (Riverisland); Lazar, supra, 12 Cal.4th at p. 638 [a promissory fraud claim “does not depend upon whether the defendant’s promise is ultimately enforceable as a contract”].) “[P]romissory fraud requires proof of ‘(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promis

2021(Ibid.) “[T]he intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance.” (Riverisland Cold Storage, Inc. v. 29 Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 (Riverisland); Lazar, supra, 12 Cal.4th at p. 638 [a promissory fraud claim “does not depend upon whether the defendant’s promise is ultimately enforceable as a contract”].) “[P]romissory fraud requires proof of ‘(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promis

2025(See Gruber, supra, 48 Cal.App.5th at p. 540; see also Wilhelm, supra, 186 Cal.App.3d at p. 1331 [affirming dismissal of fraud claim because plaintiff did not allege with specificity a factual basis for how the defendant knew her representations were false].) In short, we conclude the trial court properly sustained K-Swiss’s demurer to Carter’s cross-claim for fraud because Carter has not alleged that claim with sufficient specificity.

2025(See Gruber, supra, 48 Cal.App.5th at p. 540; see also Wilhelm, supra, 186 Cal.App.3d at p. 1331 [affirming dismissal of fraud claim because plaintiff did not allege with specificity a factual basis for how the defendant knew her representations were false].) In short, we conclude the trial court properly sustained K-Swiss’s demurer to Carter’s cross-claim for fraud because Carter has not alleged that claim with sufficient specificity.

2023Moreover, Blue Mountain does not argue or assert a promissory fraud claim, such that Riley’s statements constituted a “promise” about how the contract would be interpreted (Cf. Cicone, supra, 183 Cal.App.3d at p. 203 [corporate attorney’s statements made about how a contract would be interpreted effectively alleged “a promise without any intention to perform”].) Because the statements Blue Mountain alleges were fraudulent did not relate to past or existing material facts, we affirm the trial court’s ruling sustaining attorneys’ demurrer to this cause of action without leave to amend.

2022As such, the court’s findings on the promissory fraud claim exclusively hinged on the communicative statements made by Barnum.9 ( Navellier, supra, 106 Cal.App.4th at pp. 771–772 [harm arose from communicative act, and thus litigation privilege barred fraud action]; see also Rusheen, supra, 37 Cal.4th at at p. 1065 [“[U]nless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies”].) Finally, the Tribe argues that the litigation privilege does not apply because Barnum’s promises constitute unprotected “extrinsic f

2022As such, the court’s findings on the promissory fraud claim exclusively hinged on the communicative statements made by Barnum.9 ( Navellier, supra, 106 Cal.App.4th at pp. 771–772 [harm arose from communicative act, and thus litigation privilege barred fraud action]; see also Rusheen, supra, 37 Cal.4th at at p. 1065 [“[U]nless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies”].) Finally, the Tribe argues that the litigation privilege does not apply because Barnum’s promises constitute unprotected “extrinsic f

2022(See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [“It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal” and “[i]f no citation ‘is furnished on a particular point, the court may treat it as waived’”].) 30 [equating breach of contract claim with breach of settlement agreement].)18 DISPOSITION The judgment is reversed with respect to the promissory fraud claim and the award of punitive damages.

2022As such, the court’s findings on the promissory fraud claim exclusively hinged on the communicative statements made by Barnum.9 ( Navellier, supra, 106 Cal.App.4th at pp. 771–772 [harm arose from communicative act, and thus litigation privilege barred fraud action]; see also Rusheen, supra, 37 Cal.4th at at p. 1065 [“[U]nless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies”].) Finally, the Tribe argues that the litigation privilege does not apply because Barnum’s promises constitute unprotected “extrinsic f

2021“Rather, ‘something more than nonperformance is required to prove the 14 defendant’s intent not to perform his promise.’” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 [“for example, . . . fraudulent intent has been inferred from such circumstances as defendant’s insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform”]; accord, Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 [“the intent element of promissory fraud entails more than

2020(Jarrow, supra, 31 Cal.4th at p. 742 [probable cause is lacking where there is “‘no competent evidence’” to support an element of a claim]; Wilson, supra, 28 Cal.4th at p. 822 [same]; Cole v. 14 Patricia A. Meyer & Associates (2012) 206 Cal.App.4th 1095, 1113 [same].) The parents respond with what boil down to three arguments.

2020(Jarrow, supra, 31 Cal.4th at p. 742 [probable cause is lacking where there is “‘no competent evidence’” to support an element of a claim]; Wilson, supra, 28 Cal.4th at p. 822 [same]; Cole v. 14 Patricia A. Meyer & Associates (2012) 206 Cal.App.4th 1095, 1113 [same].) The parents respond with what boil down to three arguments.

2020(Jarrow, supra, 31 Cal.4th at p. 742 [probable cause is lacking where there is “‘no competent evidence’” to support an element of a claim]; Wilson, supra, 28 Cal.4th at p. 822 [same]; Cole v. 14 Patricia A. Meyer & Associates (2012) 206 Cal.App.4th 1095, 1113 [same].) The parents respond with what boil down to three arguments.

2020(Jarrow, supra, 31 Cal.4th at p. 742 [probable cause is lacking where there is “‘no competent evidence’” to support an element of a claim]; Wilson, supra, 28 Cal.4th at p. 822 [same]; Cole v. 14 Patricia A. Meyer & Associates (2012) 206 Cal.App.4th 1095, 1113 [same].) The parents respond with what boil down to three arguments.

2019(See Park , supra , 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130 , 393 P.3d 905 .) Wynder's statement, unlike Mayor Dear's, did relate to the EAA renewal issue before the City Council. *627 Yet Wynder's statement was made in 2012, about two years before the renewal issue even came before the City Council. 5 **911 Section 425.16, subdivision (e)(2) protects only those "written or oral statement[s] or writing[s] made in connection with an issue under consideration or review ." (Italics added.) The subdivision thus appears to contemplate an ongoing-or, at the very least, immediately pending-official

2019(See Park , supra , 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130 , 393 P.3d 905 .) Wynder's statement, unlike Mayor Dear's, did relate to the EAA renewal issue before the City Council. *627 Yet Wynder's statement was made in 2012, about two years before the renewal issue even came before the City Council. 5 **911 Section 425.16, subdivision (e)(2) protects only those "written or oral statement[s] or writing[s] made in connection with an issue under consideration or review ." (Italics added.) The subdivision thus appears to contemplate an ongoing-or, at the very least, immediately pending-official

2014While this may generally be true under some circumstances (see West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793-794 (West)), the complaint in this case does not even specifically identify the corporate entity or entities who made the promises at issue.