DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.
Case Number: 20STCV00540 Hearing Date: January 06, 2021 Dept: 56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
WBN HOME DESIGN, INC., etc., et al.,
[TENTATIVE] ORDER RE: DEMURRER TO SECOND AMENDED COMPLAINT; MOTION TO STRIKE
Date: January 6, 2021
Time: 8:30 a.m.
MOVING PARTIES: Defendants WBN Home Design, Inc. and Arc Services, LLC
RESPONDING PARTY: Plaintiff Jaquan Barnett
The Court has considered the moving, opposition, and reply papers.
Plaintiff filed the operative Second Amended Complaint (“SAC”) arising from an alleged breach of a written agreement for the restoration of Plaintiff’s personal property such as musical instruments, recorded songs, hard drives, and pianos, alleging the following causes of action: (1) failure to account; (2) failure to disclose; (3) unfair competition/unfair business practice; (4) breach of contract; (5) money had and received (common count); (6) deceit—intentional concealment of fact; (7) fraud—intentional misrepresentation of fact; (8) conversion; (9) negligence (negligent per se); and (10) intentional infliction of emotional distress.
Defendants filed a demurrer to the second through fourth, sixth through seventh, and tenth causes of action in the SAC. Defendants also filed a motion to strike portions of the SAC.
MEET AND CONFER
The meet and confer requirement has been met.
The Court GRANTS Defendants’ request for judicial notice and the Court OVERRULES Plaintiff’s objection to Defendants’ request for judicial notice.
The function of a demurrer is to assess the sufficiency of a complaint. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) A court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility is on the plaintiff. (Id.)
Issue No.1: Statutory Bases for the SAC
Defendants contend that some of the statutes relied upon in the SAC are inapplicable to this action.
California Commercial Code
The SAC alleges that Defendants had affirmative obligations under Com. Code §§ 7209 and 7210. Such code sections contemplate obligations where one has goods in a warehouse and such person whose goods are at the warehouse is sent a warehouseman’s lien. There are no allegations, however, that any of the Defendants were a warehouse as required by Com. Code § 7201(a). Due to the lack of such allegations, Defendants cannot be liable under Com. Code §§ 7209 and 7210.
Issue No.2: Second Cause of Action
Defendants contend that the second cause of action fails because it is duplicative of the sixth cause of action in the SAC.
A court can sustain a demurrer to a cause of action where such cause of action is duplicative of another cause of action alleged in the complaint and adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)
The opposition fails to address Defendants’ argument that the second cause of action in the SAC is duplicative of the sixth cause of action in the SAC, and the Court finds Plaintiff has conceded to such argument under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215. Additionally, when compared to the sixth cause of action, the second cause of action does not add anything to the SAC by way of facts or theory of recovery under Palm Springs. Therefore, the second cause of action is duplicative of the sixth cause of action.
The Court SUSTAINS the demurrer of Defendants to the second cause of action in the SAC without leave to amend under Blank. Plaintiff has had multiple opportunities to state a sufficient cause of action for failure to disclose. This is the third iteration of Plaintiff’s complaint.
Issue No.3: Third Cause of Action
Bus. & Prof. Code § 17200 prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. Bus. & Prof. Code § 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) A plaintiff alleging unfair business practices is required to state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Civ. Code § 3051 allows a person who is in lawful possession of the personal property of another and renders a service in connection with such property, and has a lien on the property, to retain such property until the charges for the repair of the property are paid. Where a party intends to sell property coming within the scope of Civ. Code § 3051, such party must give at least 10 days’ notice prior to such sale through advertising or newspaper under Civ. Code § 3052.
The third cause of action is premised on Defendants’ alleged violations of: (1) Civ. Code § 3052; (2) Com. Code § 7209; and (3) Com. Code § 7210. As stated above, Comm. Code §§ 7209-7210 do not apply to this action. Additionally, while the SAC alleges that Defendants violated Civ. Code § 3052, Defendants’ request for judicial notice shows that Defendants gave proper notice as required by Civ. Code § 3052 of the impending sale. Plaintiff therefore lacks a statutory basis to hold Defendants liable for a violation of Bus. & Prof. Code § 17200.
Therefore, the Court SUSTAINS the demurrer of Defendants to the third cause of action in the SAC without leave to amend under Blank.
Issue No.4: Fourth Cause of Action
Defendants contend that the fourth cause of action in the SAC is uncertain and fails to state a cause of action.
To state a cause of action for breach of contract, a plaintiff must plead: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) the resulting damage to plaintiff. (Wise v. Southern Pac. Co. (1963) 223 Cal.App.2d 50, 59.) Where a written contract is at issue, a plaintiff must plead its terms either set out verbatim in the complaint or a copy of the contract must be attached to the complaint. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
The Court finds that Plaintiff has not sufficiently set out the terms of the alleged April 18, 2017 contract or the March 1, 2018 modification of such contract giving rise to the breach of contract cause of action. The purported contract and modification at issue conflict with Plaintiff’s allegations under the fourth cause of action, and the exhibits attached to the SAC are not indicative of a contract between Plaintiff and Defendants dated April 18, 2017.
Therefore, the demurrer of Defendants to the fourth cause of action in the SAC is SUSTAINED without leave to amend under Blank.
Issue No.5: Sixth Cause of Action
To state a cause of action for fraudulent concealment, a plaintiff must plead the following elements: (1) concealment or suppression of a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) plaintiff sustained damage due to the concealment or suppression of the fact. (Lovejoy v. AT&T Corp. (2004) 119 Cal.App.4th 151, 157-158.) Civ. Code § 1710(3) defines deceit as the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact. There are four circumstances in which nondisclosure may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)
The Court finds that Plaintiff has sufficiently alleged the sixth cause of action in the SAC. In their reply brief, Defendants assert that the economic loss rule bars the sixth cause of action; however, such argument: (1) was not presented in their moving papers; and (2) Defendants offer no reason why such argument was not articulated in their moving papers. The Court will not consider such argument. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 (points raised for the first time in a reply brief will ordinarily not be considered).)
Therefore, the demurrer of Defendants to the sixth cause of action in the SAC is OVERRULED.
Issue No.6: Seventh Cause of Action
A complaint for fraud must allege the following elements: (1) knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) Every element of fraud must be specifically pled. (Id.) To state a fraud-based cause of action a plaintiff must plead facts which show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
The Court finds that the seventh cause of action is not pled with the required specificity as it does not state how and by what means the alleged misrepresentations were tendered.
The demurrer of Defendants to the seventh cause of action in the SAC is SUSTAINED without leave to amend under Blank.
Issue No. 7: Tenth Cause of Action
The elements of a prima facie case for the tort of intentional infliction of emotional distress (“IIED”) are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) The conduct must be so outrageous that it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) Insults, indignities, threats, annoyances, petty oppressions, or other trvialities do not give rise to liability for an IIED cause of action. (Id.)
The Court finds that the tenth cause of action does not allege conduct that is outrageous for the purpose of an IIED cause of action.
The demurrer of Defendants to the tenth cause of action in the SAC is SUSTAINED without leave to amend under Blank.
MOTION TO STRIKE
Cal. Rules of Court, Rule 3.1112(a) requires that a motion must consist of the following: (1) a notice of hearing of the motion; (2) the motion itself; and (3) a memorandum in support of the motion. Defendants’ motion to strike is defective as it does not have a notice of motion setting forth the grounds for relief and requested relief as required by Code Civ. Proc. § 1010. The memorandum of points and authorities thereto also does not contain a concise statement of facts and law as required by Cal. Rules of Court, Rule 3.1113. The motion is strike is procedurally defective.
Therefore, the Court DENIES Defendants’ motion to strike as to the SAC.
Moving parties are ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 6th day of January 2021
Hon. Holly J. Fujie
Judge of the Superior Court
 When the demurrer and motion to strike to the SAC were filed on December 3, 2020, they were not filed with an accompanying notice of motion and were only filed with a memorandum of points and authorities which set forth the hearing date and time. The memorandum of points and authorities as to the demurrer sets forth the causes of action to which Defendants filed their demurrer. Defendants filed a Revised Notice of Hearing on the demurrer and motion to strike on December 9, 2020; however, such notice did not set forth: (1) the causes of action to which the demurrer was applicable; or (2) to which portions of the SAC the motion to strike was directed. The opposition to the demurrer does not address the lack of proper notice and the Court therefore will consider the demurrer in its entirety. The opposition to the motion to strike, however, does address the lack of proper notice.
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