Judge: Barbara M. Scheper, Case: 22STCV10255, Date: 2023-05-22 Tentative Ruling
Case Number: 22STCV10255 Hearing Date: May 22, 2023 Dept: 30
Calendar No.
Banks vs. The Arroyo Partnership,
et. al., Case No. 22STCV10255
Tentative Ruling re: Defendants’ Motion for Judgment on the
Pleadings
Defendants Arroyo Creek Owners Association and Beven &
Brock Property Management Co., Inc. (collectively, Defendants) move for
judgment on the pleadings against the Complaint of Plaintiff Daniel Bowers
Banks, V (Plaintiff). The motion is granted as to the second through fifth
causes of action against Arroyo Creek Owners Association (Arroyo Creek) and as
to all causes of action against Defendant Beven & Brock Property Management
Co., Inc. (Beven & Brock).
A motion for judgment on the pleadings may be made after the
time to demur has expired and an answer has been filed. (Code Civ. Proc., §
438, subd. (f).) A motion by a defendant may be made on the grounds that the
complaint or cross-complaint “does not state facts sufficient to constitute a
cause of action against that defendant.” (Code Civ. Proc., § 438, subd.
(c)(B)(ii).) A motion for judgment on the pleadings has the same function as a
general demurrer but is made after the time for demurrer has expired. Except as
provided by statute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)
Like a general demurrer, “ordinarily, a [motion for judgment
on the pleadings] does not lie as to a portion of a cause of action, and if any
part of a cause of action is properly pleaded, the [motion] will be overruled.”
(Fire Ins. Exchange v. Superior Court
(2004) 116 Cal.App.4th 446, 452.) In considering a motion for judgment on the
pleadings, courts consider whether properly pled factual allegations—assumed to
be true and liberally construed—are sufficient to constitute a cause of action.
(Stone Street Capital, LLC v. Cal. State
Lottery Com’n (2008) 165 Cal.App.4th 109, 116.)
Arroyo Creek is the homeowners’ management association (HOA)
for real property located at 1050 Seco St., Pasadena, California. (Comp. ¶ 4.)
Plaintiff became the owner in fee simple of 1050 Seco St. #210 on August 1,
2014. (Comp. ¶ 15.) In July 2021, noxious odors from a “sewage leak” began to
emanate from Plaintiff’s property and Plaintiff’s neighbor’s unit. (Comp. ¶
17.) The source of the odor was a broken and leaking “wye” in the sewer system
under the building in the common area. (Comp. ¶ 18.) Plaintiff alleges that
defendants’ failure to remedy the sewage leak and odors violated their duties
under the property’s covenants, conditions, and restrictions. (Comp. ¶ 19.)
Plaintiff additionally alleges that each defendant “delayed,
obfuscated, lied, cheated and stole for 45 (FOUR) [sic] months from July 2021
to November 30th, 2021, with multiple inspections, clean-outs, tests, further
inspections et a.” (Comp. ¶ 20.) There are no further details provided
regarding the alleged lying and cheating. Defendants’ failure to remedy the
issues caused Plaintiff to incur delay and costs in selling his property. (Comp.
¶ 21.)
Plaintiff asserts five causes of action against all
Defendants, for: (1) Breach of Written Contract; (2) Uninhabitable living
conditions (Civ. Code § 1942.4); (3) Fraud; (4) Negligent Infliction of
Emotional Distress; and (5) Declaratory Relief.
Defendant Beven & Brock
The
Complaint alleges that Beven & Brock is “a California company for 1050 Seco
Street, Pasadena, CA 91103, and therefore, liable for all of the tortious acts
complained of herein. (Comp. ¶ 11.) This is the sole allegation in the
Complaint concerning Beven & Brock; Plaintiff has pled no other specific
facts as to Beven & Brock’s involvement in the events pled. This lone allegation
is clearly insufficient to state any cause of action against Beven & Brock.
Accordingly, the motion is granted as to all claims against Beven & Brock.
Defendant Arroyo Creek
Defendants
do not make any argument regarding Plaintiff’s first cause of action for breach
of contract as stated against Arroyo Creek.
Second Cause of Action for Violation of Civ. Code § 1942.4
Civil
Code § 1942.4 provides,
“[a] landlord of a dwelling may not demand rent, collect rent, issue a notice
of a rent increase, or issue a three-day notice to pay rent or quit,” if
certain statutory habitability or housing violations exist on the property, a
public employee has notified the landlord of the violations, and the landlord
has not abated the violation.
By its terms,
Section 1942.4 provides that “a landlord of a
dwelling” may be liable to “the tenant or lessee.” Here, Plaintiff alleges that
he was the owner in fee simple of the property at 1050 Seco St. and that Arroyo
Creek is the HOA for the property. (Comp. ¶¶ 4, 15.) Plaintiff was not an
alleged tenant or lessee, and Arroyo Creek was not Plaintiff’s landlord, and so
Plaintiff’s Section 1942.4 claim fails.
Third Cause of Action for Fraud
The elements of
fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure);
(2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance;
(4) justifiable reliance; and (5) damages. (See Civil Code §1709.) Fraud
actions are subject to strict requirements of particularity in pleading. (Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.)
The
liberal construction of pleadings does not apply to a fraud claim. Instead, a
fraud claim must be pled with specificity. (Tenet Healthsystem Desert, Inc.
v. Blue Cross of California¿(2016) 245 Cal.App.4th 821, 837.) “The
particularity requirement demands that a plaintiff plead facts which show how,
when, where, to whom, and by what means the representations were tendered.” (Cansino
v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)
Under his cause of action for Fraud, Plaintiff alleges that
Defendants “had no intention of honoring the contracts or agreement and had no
intention, ability, means or any such reason to make remedy or timely fix the
common area gas leak problem. Indeed, they never intended to fulfill the
contract or agreement, and instead took [four] long months to delay and
obfuscate and then [not] reimburse [Plaintiff] for his losses and not pay for
the damages.” (Comp. ¶ 45.)
These allegations fail to
state a cause of action for fraud. Plaintiff has pled no specific misrepresentation
or concealment by any defendant, and has also not alleged any specific act that
he took in justifiable reliance on the fraud. Furthermore, contrary to the
particularity requirement for pleading fraud, the allegations in the Complaint
refer only to “defendants” in the collective. (Comp. ¶ 45.) The motion is therefore
granted as to the third cause of action against Arroyo Creek.
Fourth Cause of Action for Negligent Infliction of Emotional
Distress
“[T]here is no
independent tort of negligent infliction of emotional distress. The tort is
negligence, a cause of action in which a duty to the plaintiff is an essential
element. That duty may be imposed by law, be assumed by the defendant, or exist
by virtue of a special relationship.” (Potter v. Firestone Tire &
Rubber Co. (1993) 6 Cal.4th 965, 984-985 [citations omitted]; see Eriksson
v. Nunnink (2015) 233 Cal.App.4th 708, 729; Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [“NIED is a tort in
negligence, and the plaintiff must establish the elements of duty, breach of
duty, causation, and damages.”].)
“[T]o recover damages for
emotional distress on a claim of negligence where there is no accompanying
personal, physical injury, the plaintiff must show that the emotional distress
was ‘serious.’ [Citations.] . . . ‘[S]erious emotional
distress may be found where a reasonable man, normally constituted, would be
unable to adequately cope with the mental stress engendered by the
circumstances of the case.’ [Citation.]” (Wong v. Jing (2010) 189 Cal.App.4th
1354, 1377.)
Plaintiff alleges under the NIED claim that the defendants
“never intended, and never would remedy the common area utility/gas leak/odor
and did not intend to reimburse [Plaintiff] for his losses,” and that the
defendants “did so intentionally, maliciously recklessly and with the intent to
harass, vex & annoy [Plaintiff].” (Comp. ¶¶ 53-54.)
Plaintiff’s allegations refer to intentional or reckless
conduct, not negligent conduct, and so fail to support a claim for negligent
infliction of emotional distress. Additionally, the Court agrees with
Defendants that the alleged emotional distress was insufficiently severe.
Plaintiff has pled no conduct by Defendants that might result in “the sort of
serious emotional distress with which a reasonable, normally constituted person
would be unable to cope” (Wong, 189 Cal.App.4th at 1378); the allegations regarding Defendants’ malicious and
harassing conduct are wholly conclusory. (Comp. ¶¶ 54-55.) The motion is
therefore granted as to the fourth cause of action.
Fifth Cause of Action for Declaratory Relief
“Any person
interested under a written instrument, excluding a will or a trust, or under a
contract, or who desires a declaration of his or her rights or duties with
respect to another . . . may, in cases
of actual controversy relating to the legal rights and duties of the respective
parties, bring an original action or cross-complaint in the superior court for
a declaration of his or her rights and duties in the premises, including a
determination of any question of construction or validity arising under the instrument
or contract. . . . The declaration may be had before there has been any breach
of the obligation in respect to which said declaration is sought.” (Code Civ.
Proc. § 1060.)
Under the fifth cause of action, Plaintiff seeks “a court
order for the equitable division of the Property, fees, costs, and out of
pocket costs.” (Comp. ¶ 61.) Though the exact meaning of this requested relief
is unclear, it does not appear to be declaratory relief, nor is it supported by
any of the facts pled. Plaintiff’s Opposition offers no explanation of this
claim. Accordingly, the motion is granted as to the fifth cause of action
against Arroyo Creek.