California Demurrer — Fraud Claims

The cleanest demurrer to a fraud count walks the court through the five elements and identifies which one the complaint fails to allege. Most commonly, the casualty is "intent to induce reliance" — complaints that allege falsity and knowledge often forget to plead scienter as to the purpose of the statement.

Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.

Complaints that allege "defendants made false representations regarding the product" without names, dates, or medium are the single most common fraud-demurrer target. The specificity rule exists because fraud is a serious allegation with reputational consequences that ordinary negligence pleading does not carry — California makes the plaintiff show the facts before imposing the cost of fraud defense on a defendant. California requires the names of the speaker, their authority, the listener, the substance, and when and how the statement was made. A complaint that cannot be broken down into that grid is vulnerable at the pleading stage.

Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.

Plaintiffs often invoke the Committee on Children's Television softening rule without pleading why the defendant's knowledge is superior or exclusive. The softening is a limited carve-out for situations where the plaintiff could not reasonably have access to the underlying facts — not a general license to plead fraud on information and belief.

Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216–217; Alfaro v. Community Housing Improvement System (2009) 171 Cal.App.4th 1356, 1384.

A concealment count that alleges "defendant failed to disclose" without grounding the duty to disclose in one of the recognized categories is routinely sustained. After Rattagan v. Uber (2024), California recognizes five duty-to-disclose categories: (1) duty imposed by statute; (2) fiduciary or confidential relationship; (3) exclusive knowledge of facts plaintiff could not discover; (4) partial representation that makes silence misleading; (5) active concealment. Categories 3–5 also require a preexisting transactional relationship. Attack the duty element directly: which category does the complaint plead, and what facts support it?

Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 44–45; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336–337.

Full picture: the five categories, the preexisting-relationship requirement, and both sides of the table →

A common pleading error is to plead negligent misrepresentation as a fallback to a fraud count that alleges recklessness. The two are mutually inconsistent: intentional fraud requires knowledge or reckless disregard; negligent misrepresentation requires an honest-but-unreasonable belief. A complaint that alleges both in the same paragraphs, without clean alternative pleading, is vulnerable.

Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028; Civ. Code § 1710, subd. (2).

When the alleged fraud is a promise, the complaint must allege facts supporting the inference that the defendant had no intention of performing at the time of the promise. Non-performance alone is not enough, and it is not sufficient to recite the test. The demurrer question: does the complaint plead facts from which the court can infer present intent not to perform?

Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060; Tarmann v. State Farm (1991) 2 Cal.App.4th 153, 159.

Where the three-year SOL under § 338(d) has run on the face of the complaint, the plaintiff must plead the discovery rule — and plead it with facts: time and manner of discovery, inability to have discovered earlier despite reasonable diligence. A generic "plaintiff did not discover the fraud until 2024" allegation is the most common SOL demurrer target in the corpus.

Code Civ. Proc. § 338(d); Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.

For any fraud count that arises out of a contractual relationship, Rattagan is now the controlling framework. Before Rattagan, the economic loss rule was a near-automatic bar to fraud-in-a-contract claims. After Rattagan, the rule does not apply to intentional concealment at all — the court held it "only applies to bar tort recovery for negligently inflicted economic losses unaccompanied by physical or property damage under the limits recognized in Sheen." A separate two-part test governs whether an independent tort duty exists: the concealment must be (1) independent of the contractual relationship, and (2) expose the plaintiff to risks beyond the reasonable contemplation of the parties when they entered into the agreement. Complaints that rely on pre-2024 ELR briefing, or that do not affirmatively plead the two-part test, are vulnerable to sustain on the new framework.

Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 41.

Whether the fraudulent-concealment count pleads the defendant's knowledge basis with specificity required under Tarmann and the Rattagan/Dhital template.

Under Tarmann (1991) and Dhital (2023), a fraud-by-concealment claim requires the complaint to identify how the defendant knew of the defect. Generic allegations that “defendant knew or should have known” do not satisfy Tarmann's specificity requirement. The complaint must name the specific source of knowledge: pre-production testing program, NHTSA complaint database and entry date, internal Technical Service Bulletin number, or warranty-data-aggregation system.

If you're the moving party: Go element-by-element on knowledge. The most common gap is the complaint that alleges “defendant knew” without identifying which internal data stream, which NHTSA database entry, or which TSB. A complaint that says “defendant was aware of the defect through pre-production testing” without naming the testing program or its results is not specific enough under Tarmann.

If you're the opposing party: Name the knowledge basis in the complaint. Use the Dhital template: (1) specific defect identified; (2) symptoms plaintiff experienced; (3) defendant's knowledge basis with specificity — name the pre-production testing program, cite the NHTSA complaint number if known, identify the internal TSB by number; (4) duty via exclusive knowledge or active concealment; (5) materiality and reliance.

Primary sources: Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157; Dhital v. Nissan North America, Inc. (2023) 86 Cal.App.5th 717. See also Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 44–45 (duty-to-disclose taxonomy).

Corpus signal: very strong — knowledge-basis specificity was the contested element in Tillman v. Mercedes-Benz, Estrada v. Honda, Marquez v. GM, and Barrios v. GM (all LA Superior, May 3–7, 2026).

Whether the fraudulent-concealment count pleads a transactional relationship sufficient to support a duty to disclose — the direct-dealings element under LiMandri and Bigler-Engler.

LiMandri v. Judkins (1997) provides the controlling taxonomy of duty-to-disclose relationships. Bigler-Engler v. Breg (2017) holds that exclusive knowledge alone does not create a duty to disclose — there must be a transactional relationship between the parties. In vehicle-defect cases, the manufacturer warranty contract between plaintiff and manufacturer satisfies this requirement under Dhital.

If you're the moving party: Identify whether the complaint alleges any transactional relationship between plaintiff and the concealing defendant. Where the defendant is a component manufacturer or supplier with no direct consumer relationship, exclusive knowledge alone is insufficient. Bigler-Engler is the clean citation: the court sustained on this ground where the plaintiff alleged exclusive knowledge but no direct dealings.

If you're the opposing party: Allege the transactional relationship explicitly. In lemon-law cases, the manufacturer warranty contract runs directly between plaintiff and the vehicle manufacturer — plead it. Where the complaint names an intermediate supplier, plead whatever direct dealings occurred: repair visits, warranty repair authorizations, customer service contacts. Each interaction is potential evidence of the relationship.

Primary sources: LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336–337; Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311; Dhital v. Nissan North America, Inc. (2023) 86 Cal.App.5th 717.

Corpus signal: strong — Barrios v. GM (LA Superior, Mosk Dept 415, May 6, 2026) sustained concealment count specifically for failure to plead direct dealings; exclusive-knowledge allegations held insufficient standing alone.

Whether the economic loss rule bars the negligent-repair or negligent-misrepresentation count absent physical injury or property damage.

Rattagan (2024) confirmed that the economic loss rule (ELR) bars tort recovery for pure economic loss — including negligent repair and negligent misrepresentation in the product context — absent physical injury or damage to property other than the defective product itself. Intentional torts (fraudulent concealment, intentional misrepresentation) survive the ELR.

If you're the moving party: Identify any negligence-adjacent count and show the complaint alleges only economic loss: diminished value, out-of-pocket repair costs, overpayment. Rattagan forecloses these as standalone negligence theories without physical injury. The Supreme Court addressed negligent repair directly — this is the cleanest ELR argument post-2024.

If you're the opposing party: The ELR does not bar intentional torts. If the facts support it, recast as fraudulent concealment or intentional misrepresentation — Rattagan expressly preserved intentional fraud claims. Alternatively, plead actual physical injury (personal injury or property damage to other property) if the facts are there.

Primary sources: Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 41; Seely v. White Motor Co. (1965) 63 Cal.2d 9.

Corpus signal: strong — Tillman v. Mercedes-Benz USA (LA Superior, Van Nuys Dept 107, Hon. Eric Harmon, May 7, 2026) sustained negligent-repair count on ELR grounds; overruled fraudulent concealment and Song-Beverly counts in the same motion.