Judge: Curtis A. Kin, Case: BC685367, Date: 2023-01-31 Tentative Ruling
Case Number: BC685367 Hearing Date: January 31, 2023 Dept: 72
DEMURRER AND MOTION TO STRIKE
Date: 1/31/23
(9:30 AM)
Case: Yvette Crayon v. Walter
Gillies (BC685367)
TENTATIVE RULING:
Defendant STS Property Management, Inc.’s Demurrer to
Complaint is OVERRULED.
Defendant STS Property Management, Inc.’s UNOPPOSED Motion
to Strike Portions of Complaint is DENIED.
I.
DEMURRER TO COMPLAINT
Defendant STS Property Management, Inc.’s requests for
judicial notice are DENIED as “unnecessary to the resolution” of the issues
before the Court. (Martinez v. San Diego County Credit Union (2020) 50
Cal.App.5th 1048, 1075.) In any event, defendant STS asks this Court to take
judicial notice of certain public records and certain statements of fact
therein, but “[t]he hearing on demurrer may not be turned into a contested
evidentiary hearing through the guise of having the court take judicial notice
of documents whose truthfulness or proper interpretation are disputable.” (Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)
Defendant STS Property Management, Inc. (“STS”) demurs to
the third cause of action for negligence, the sole remaining cause of action
against it. According to STS, plaintiff Yvette Crayon fails to allege that STS
owed plaintiff a duty because STS neither owned, possessed, or controlled the
property. (See Preston v. Goldman (1986) 42 Cal.3d 108, 119 [“‘[A] defendant
cannot be held liable for the defective or dangerous condition of property
which it did not own, possess, or control…. [Citations]’”].)
Defendant Walter Gillies, as landlord, and plaintiff, as
tenant, entered into a lease of the subject premises. (Compl. ¶ 15.) Gillies
“owned, maintained and/or managed” the subject premises. (Compl. ¶ 9.) STS,
however, was allegedly Gillies’ agent acting within the course and scope of its
authority or agency. (Compl. ¶ 10.) Accordingly, plaintiff sufficiently alleges
STS was also responsible for maintaining and/or managing the subject premises.
(Compl. ¶ 9; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 [“In
determining the merits of a demurrer, all material facts pleaded in the
complaint and those that arise by reasonable implication, but not conclusions
of fact or law, are deemed admitted by the demurring party”].)
STS asserts that the subject premises are located on
commercial property. (RJN Ex. 1.) Without taking judicial notice of defendant’s
assertion of fact, even if this fact were true, “a commercial landowner, cannot
totally abrogate its landowner responsibilities merely by signing a lease.” (Mora
v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.) “At the time
the lease is executed and upon renewal a [commercial] landlord has a right to
re-enter the property, has control of the property, and must inspect the
premises to make the premises reasonably safe from dangerous conditions.” (Ibid.)
“When there is a potential serious danger, which is foreseeable, a landlord
should anticipate the danger and conduct a reasonable inspection before passing
possession to the tenant.” (Id. at 782.)
A tenant may sue a property manager, as well as the
landlord, for failure to remedy defective conditions. (Stoiber v. Honeychuck
(1980) 101 Cal.App.3d 903, 929-30 [“[S]ince appellant can plead a cause of
action in negligence against the landlord, such a cause of action could also be
pleaded against the agent defendants. The fact that an agent owes a duty to his
principal does not preclude him from also owing a duty to third parties
foreseeably injured by his conduct”].) The subject premises were delivered to
plaintiff in a defective condition, even though defendants, including STS, had
control over the premises before passing possession to plaintiff. (Compl. ¶¶ 10,
15, 16.) Plaintiff informed defendants of the defective conditions. (Compl. ¶
23.) The conditions were never corrected. (Compl. ¶ 23.)
Plaintiff sufficiently alleges that STS had control over the
premises and thus owed plaintiff a duty of care. (Compl. ¶ 10.) Plaintiff also
sufficiently alleges that she suffered damages, including physical injuries and
emotional distress, as a result of defendants’ failure to correct the defective
conditions. (Compl. ¶ 17.)
STS also contends that plaintiff was not the tenant of the
subject premises. (Reply RJN Ex. 2.) STS makes this argument for the first
time in reply. The Court declines to consider it. (St. Mary v.
Superior Court (2014) 223 Cal.App.4th 762, 782-83 [new grounds raised in
reply brief on motion to deem matters admitted in trial court precluded party
from addressing new grounds]; Plenger v. Alza Corp. (1992) 11
Cal.App.4th 349, 362, fn. 8 [“Although, the inclusion of additional evidentiary
matter with the reply [on a motion for summary judgment] should only be allowed
in the exceptional case, the trial court's consideration of such additional
evidence is not an abuse of discretion so long as the party opposing the motion
for summary judgment has notice and an opportunity to respond to the new
material”]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th
1446, 1453 [“Points raised for the first time in a reply brief will ordinarily
not be considered, because such consideration would deprive the respondent of
an opportunity to counter the argument”]; Balboa Ins. Co. v. Aguirre
(1983) 149 Cal.App.3d 1002, 1010 [“The salutory rule is that points raised in a
reply brief for the first time will not be considered unless good cause is
shown for the failure to present them before”].)
Even if the Court were to consider the new contention, it
would be unavailing. STS contends that the lease was between Gillies and Green
Thumb AV Youth Program, of which plaintiff was purportedly president. According
to the lease that plaintiff previously filed in support of the opposition to
defendant Gillies’ motion to dismiss, the lease was “made by and between Walter
Gillies (‘Landlord’) of Free Fuel Forever and Yvette Crayon (‘Tenant’) of Green
Thumb AV Youth Program, Palmdale, CA.” (Reply RJN Ex. 2 at ¶ 1.) Even though
the lease mentions Green Thumb AV Youth Program, the lease also mentions
plaintiff. At the very least, a question of fact exists as to whether plaintiff
was a party to the lease such that, accordingly, defendants, including STS,
owed a duty to her.
The demurrer is OVERRULED.
II.
MOTION TO STRIKE PORTIONS OF COMPLAINT
Defendant STS Property Management, Inc. (“STS”) moves to
strike the prayers for punitive damages, attorney fees, and prejudgment
interest.
With respect to punitive damages, although the only cause of
action against STS is for negligence, the prayer for punitive damages applies
against co-defendant Walter Gillies, against whom fraud-based causes of action
for concealment and intentional misrepresentation remain.
With respect to attorney fees, unsupported attorneys fee
allegations need not be stricken pursuant to a motion to strike, because later
discovery may reveal a basis for their recovery. (Camenisch v.
Superior Court (1996) 44 Cal.App.4th 1689, 1699.)
With respect to prejudgment interest, “[a] person who is
entitled to recover damages certain, or capable of being made certain by
calculation, and the right to recover which is vested in the person upon a
particular day, is entitled also to recover interest thereon from that day.”
(Civ. Code § 3287(a).) Plaintiff’s claim for property damage and economic loss
may be damages which are or were “capable of being made certain by
calculation.” (Compl. ¶ 37.)
The motion is DENIED in its entirety.
Ten (10) days to answer.