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Geoffrey E. Woo-Ming v. Grace Cheng et al

March 8, 2013

GEOFFREY E. WOO-MING, PLAINTIFF AND APPELLANT,
v.
GRACE CHENG ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 34200900063786CUFRGDS)

The opinion of the court was delivered by: Hoch , J.

Woo-Ming v. Cheng CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The demurrer of defendants Grace Cheng and the Progressive Tax Group to the second amended complaint for fraud filed by plaintiff Geoffrey E. Woo-Ming was sustained without leave to amend. Plaintiff then moved to set aside the judgment of dismissal (Code Civ. Proc., § 473),*fn1 claiming he made a mistake of law in relying on a single cause of action for fraud, when he should have alleged causes of action for breach of oral contract, common counts, and constructive fraud.

The trial court denied his motion to set aside the judgment, and plaintiff appeals. We conclude the trial court did not abuse its discretion, and affirm the judgment.

BACKGROUND

The Complaints and Demurrers

Plaintiff hired defendants to assist him in filing delinquent income tax returns and to represent him and his wife in proceedings before the Internal Revenue Service and the California Franchise Tax Board.

A few months later, plaintiff terminated defendants' services and demanded a refund. When the parties failed to reach an agreement on the amount of the refund, plaintiff initiated this action pro se by filing a form complaint stating a single cause of action for fraud based upon intentional or negligent misrepresentation. The factual allegations of plaintiff's complaint include that his credit card was billed without his permission; he was charged for services rendered after he terminated defendants' services; he was referred by defendants to Jennifer Shapiro, whom he assumed was an attorney and he was billed for her time at the "lawyer's rate"; he subsequently learned Shapiro is not an attorney and, consequently, "practically all of the PTG [Progressive Tax Group] invoice is fraudulent."

Defendants demurred to the original complaint on the ground (among others), that the complaint failed to allege all of the elements of a fraud cause of action. Plaintiff responded by filing his first amended complaint, which stated a single cause of action for fraud based on theories of intentional or negligent misrepresentation and concealment.

Defendants demurred to the first amended complaint on the ground it failed to allege all of the elements of a fraud cause of action. The trial court sustained the demurrer with leave to amend. Plaintiff filed a second amended complaint, which stated a single cause of action for fraud based on theories of intentional or negligent misrepresentation and concealment. Soon thereafter, plaintiff filed a motion for summary judgment; the motion was ultimately dropped.

Defendants demurred to the second amended complaint on the ground it failed to allege all of the elements of a fraud cause of action. The trial court sustained the demurrer without leave to amend. It reasoned: "Plaintiff alleges a single cause of action, fraud, based on three alternative theories: intentional misrepresentation, negligent misrepresentation, and concealment. The crux of plaintiff's complaint is that he was billed at $350/hour for certain services, in particular those performed by one Jennifer Shapiro, who 'was not an attorney, and therefore not entitled to bill at the rate of $350 an hour.' [Second Amended Complaint, page 4.] Plaintiff, however, fails to allege defendants' representation or active concealment (or a duty to disclose) regarding either Shapiro or her hourly rate, as well as his detrimental reliance, two essential elements of this cause of action. The fact that plaintiff was ultimately charged ...


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