Judge: Barbara M. Scheper, Case: 23SMCV01166, Date: 2023-12-18 Tentative Ruling
Case Number: 23SMCV01166 Hearing Date: December 18, 2023 Dept: 30
Calendar
No.
Kayne, et. al. vs. GK Management Co., Inc., et. al.,
Case No. 23SMCV01166
Tentative Ruling re:
Defendants’ Demurrer to First Amended Complaint
Defendants GK Management Co., Inc.,
Goldrich Kest, LLC, Goldrich & Kest Industries, LLC, Dolphin Marina Ltd.,
and Goldrich, Kest, Hirsch & Stern, LLC (collectively, Defendants) demur to
the First Amended Complaint (FAC) of Plaintiffs Marc Kayne and Paula Kayne
(collectively, Plaintiffs). The demurrer is sustained as to all causes of
action against Goldrich, Kest, Hirsch & Stern, LLC, Goldrich Kest, LLC, and Goldrich & Kest Industries, LLC, and is
sustained as to the sixth and ninth causes of action against Defendants GK
Management Co., Inc., and Dolphin Marina Ltd. The demurrer is otherwise
overruled.
In reviewing
the legal sufficiency of a complaint against a demurrer, a court will treat the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions, or conclusions of law. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank);
C & H Foods Co. v. Hartford Ins. Co.
(1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies
only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75
Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is
tested against a general demurrer are well settled. We not only treat the
demurrer as admitting all material facts properly pleaded, but also give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context.” (Guclimane Co. v. Stewart
Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For
purposes of ruling on a demurrer, the complaint must be construed liberally by
drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling
on a demurrer, the Court may only consider the complaint’s allegations or
matters which may be judicially noticed. (Blank,
supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic
evidence or judge the credibility of the allegations plead or the difficulty a
plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A
demurrer is properly sustained only when the complaint, liberally construed,
fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121
Cal.App.4th 574, 578.)
Plaintiffs’ claims arise from their tenancy at an apartment leased from
Defendant Dolphin Marina Ltd. (Dolphin), located at 13900 Panay Way, Marina Del
Rey (the Property). (FAC ¶ 20.)
Plaintiffs entered into the lease for the Property on September 29, 2018, and
resided there until June 4, 2022. (FAC ¶¶ 22, 25.) Plaintiffs allege that
Defendants GK Management Co., Inc., Goldrich Kest, LLC, and Goldrich & Kest
Industries, LLC are each property managers for the Property. (FAC ¶¶ 3-5.)
In June 2021, Defendants advised Plaintiffs and other tenants in their
building that all units in the building would be remodeled and renovated later
that year. (FAC ¶ 29.) Defendants advised that all tenants
“would be relocated for 30 days to a fully furnished and habitable unit in
another building at the Property away from the active construction zone.” (FAC ¶ 29.)
Defendants began construction on March 28, 2022, without any prior
notice, renovating units directly below, across, and next to Plaintiffs’ unit.
(FAC ¶ 30.) The construction has allegedly caused “substantial noises,
vibrations, disturbances, and dirt and debris falling in and around [Plaintiffs’]
Unit,” interfering with the habitability of the unit. (FAC ¶ 31.) There is also “toxic white dust
floating in the air and on the ground” in Plaintiffs’ unit and immediately
outside of it, as well as “garbage bins full of drywall and other toxic debris”
stored outside Plaintiffs’ unit. (FAC ¶¶ 33-34.) Defendants have failed and refused to contain the
construction and clean up the debris despite numerous requests from Plaintiffs
and other tenants. (FAC ¶ 37.)
Defendants’ construction has exposed Plaintiffs to asbestos and mold that has
not been properly contained or removed. (FAC ¶ 37.) On June 3, 2022, Defendants relocated Plaintiffs to unit in
another building at the Property, but this unit was also affected by extensive
mold. (FAC ¶¶ 39-43.)
Uncertainty
A demurrer based on uncertainty is
disfavored and will be strictly construed even when the pleading is uncertain
in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrer for uncertainty may be sustained when a
defendant cannot reasonably determine to what he or she is required to respond.
For example, when a plaintiff joins multiple causes of action as one, fails to
properly identify each cause of action, or fails to state against which party
each cause of action is asserted if there are multiple defendants, a complaint
is uncertain. (Williams v. Beechnut Nutrition Corp. (1986) 185
Cal.App.3d 135, 139, fn. 2.)
Defendants argue that the FAC is
uncertain against all Defendants, because it refers only to Defendants’ conduct
in the collective, without specifying which entity performed which alleged act.
The Court disagrees that this is grounds for uncertainty; the underlying conduct and causes of action are pled with
sufficient clarity to allow Defendants to reasonably
determine what they are required to respond to.
Goldrich, Kest, Hirsch & Stern,
LLC, Goldrich Kest, LLC, and Goldrich
& Kest Industries, LLC, Defendants
The FAC alleges no
specific facts regarding Defendant Goldrich, Kest, Hirsch & Stern, LLC
(GKHS). (FAC ¶ 7.) Plaintiffs argue that GKHS may be held liable as an alter
ego of the other Defendants; the FAC alleges, in conclusory terms, that all
Defendants were alter egos of one another. (FAC ¶ 11.) Plaintiffs argue that
their claims against Defendants Goldrich Kest, LLC and Goldrich & Kest
Industries, LLC may also be based on alter ego liability.
“[C]ourts have
followed a liberal policy of applying the alter ego doctrine where the equities
and justice of the situation appear to call for it rather than restricting it
to the technical niceties depending upon pleading and procedure.” (First Western Bank & Trust Co. v.
Bookasta (1968) 267 Cal.App.2d 910, 915.) The Court agrees with Defendants
that Plaintiffs’ allegations are insufficient to support alter ego liability.
Given the lack of any factual allegations regarding GKHS, there is no
indication that “the equities and justice of the situation appear to call for”
application of the alter ego doctrine here. Accordingly, the demurrer is
sustained as to all claims against GKHS,
Goldrich Kest, LLC, and Goldrich & Kest Industries, LLC.
Sixth Cause
of Action Trespass
“ ‘Trespass is an unlawful
interference with possession of property.’ [Citation.] The elements of trespass
are: (1) the plaintiff's ownership or control of the property; (2) the
defendant's intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) harm; and
(5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs
Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-62.)
Plaintiffs’ sixth cause of action
generally alleges that “Defendants intentionally, recklessly, and/or
negligently entered the Unit as set forth above.” (Comp. ¶ 106.) In Opposition, Plaintiffs seek to base their
trespass claim on the allegation that “Defendants came to the Unit and harassed
Plaintiffs by unreasonably and inexplicably demanding Plaintiffs vacate the
Unit within 30 minutes without any prior notice.” (Comp. ¶ 39.) However, the
alleged fact that “Defendants came to the Unit and harassed Plaintiffs” is
insufficient to show Defendants’ entry onto Plaintiffs’ property without
permission.
Ninth
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.)
“[T]here are two causation
elements in a fraud cause of action.
First, the plaintiff's actual and justifiable reliance
on the defendant's misrepresentation must have caused him to take a detrimental
course of action. Second, the detrimental action taken by the plaintiff must
have caused his alleged damage.” (Beckwith v. Dahl (2012) 205
Cal.App.4th 1039, 1062.) “In
addition to pleading actual reliance, the plaintiff must set ‘forth facts to
show that his or her actual reliance on the representations was justifiable, so
that the cause of the damage was the defendant's wrong and not the plaintiff's
fault.’ [Citation.] There must be more pled than a simple statement plaintiff
justifiably relied on the statements.” (Id. at 1066-67.)
Plaintiffs allege that, during a June
2, 2021 Zoom meeting with tenants of the Property, Defendants’ managers “expressly
represented that the Construction would occur in sections of the Property to
ensure that none of the tenants would be exposed to or be inconvenienced by the
Construction.” (FAC ¶ 131.) The managers “also represented, and Plaintiffs
understood, that they would never be in the ‘construction zone’ during the Construction.”
(FAC ¶ 131.) These representations were false; in fact, “Defendants planned to
renovate, and are renovating units in the M-Building without relocating
Plaintiffs for a substantial period during the Construction, thus forcing
Plaintiffs to live in a construction zone full of toxic debris, substantial noise,
dislocation, and inconvenience.” (FAC ¶ 149.)
The Court agrees with Defendants that
Plaintiffs have not pled the element of reliance. The FAC alleges only that “Plaintiffs
reasonably relied on these promises and representations.” (FAC ¶ 147.) To properly plead reliance for fraud, “[t]here must
be more pled than a simple statement plaintiff justifiably relied on the
statements. [Citation.] The complaint must contain ‘allegations of facts
showing that the actual inducement of plaintiffs ... was justifiable or
reasonable.’ ” (Id.
at 1066.) Plaintiffs’ conclusory allegation of reasonable reliance fails to
satisfy this standard.
Twelfth
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.”].)
Plaintiffs’ claim for NIED
alleges that Defendants “negligently violated Plaintiffs rights under the
RSTPO, failed to maintain the Unit in a habitable condition, and recklessly
exposed Plaintiffs to harmful and toxic debris.” (FAC ¶ 171.) As a result of
Defendants’ conduct, “Plaintiffs have now developed an extreme fear that they
will develop cancer and/or mesothelioma as a result of repeated exposure to
toxic substances in their home and at the Property.” (FAC ¶ 173.)
In Potter v. Firestone
Tire & Rubber Co. (1993) 6 Cal.4th 965, the California Supreme Court
considered whether “emotional distress engendered by the fear of developing
cancer in the future as a result of a toxic exposure is a recoverable item of
damages in a negligence action.” (Id. at 981.) The court concluded, “in the absence of a present
physical injury or illness, damages for fear of cancer may be recovered only if
the plaintiff pleads and proves that (1) as a result of the defendant's
negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a
toxic substance which threatens cancer; and (2) the
plaintiff's fear stems from a knowledge, corroborated by reliable medical or
scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure. Under this rule, a
plaintiff must do more than simply establish knowledge of a toxic ingestion or
exposure and a significant increased risk of cancer. The plaintiff must further
show that based upon reliable medical or scientific opinion, the plaintiff
harbors a serious fear that the toxic ingestion or exposure was of such
magnitude and proportion as to likely result in the feared cancer.” (Id.
at 981.)
Defendants demur on the
basis that Plaintiffs have failed to plead either that they suffered injury, or
that their “fear
stems from a knowledge, corroborated by reliable medical or scientific opinion,
that it is more likely than not that [they] will develop the cancer in the
future due to the toxic exposure.” (Potter at 981.) The Court disagrees.
Plaintiffs allege that they
have been exposed to asbestos and other toxic substances as a result of
Defendants’ construction. (FAC ¶ 174.) Potter, which involved an appeal
from the judgment, does not require a plaintiff to specifically
plead the scientific studies and medical opinion supporting their alleged fear.
Accordingly, the demurrer is overruled as to the twelfth cause of action.