Judge: Daniel M. Crowley, Case: 22SMCV02713, Date: 2023-04-12 Tentative Ruling
Case Number: 22SMCV02713 Hearing Date: April 12, 2023 Dept: 207
Background
Plaintiff Seyed Farid Hajimirsadeghi (“Plaintiff”) was a
tenant of an apartment building owned by Defendant SM 10000 Property, LLC (“Defendant”).
Plaintiff brings this action against Defendant arising from the theft of a
collection of watches stored at his apartment worth $1,000,000. Plaintiff
alleges Defendant either improperly failed to deactivate lost key cards to his
apartment or, alternatively, that one or more of Defendant’s employees
improperly access his apartment unit to steal his watches. Plaintiff’s
Complaint asserts five causes of action for premises liability, negligence,
breach of contract, fraud, and conversion. Defendant now brings a demurrer to
each of these causes of action, arguing they fail to state facts sufficient to
constitute a cause of action against them under Code Civ. Proc. § 430.10(e) or
are uncertain under Code Civ. Proc. § 430.10(f). Defendant separately moves to
strike Plaintiff’s claim for punitive damages. Plaintiff opposes Defendant’s
motions.
Legal
Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must
be apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the
pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such,
the court assumes the truth of the complaint’s properly pleaded or implied
factual allegations. (Id.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
The general rule is that the plaintiff need only allege
ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles
(2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter
of pleading, even as against a special demurrer, is that his complaint set
forth the essential facts of the case with reasonable precision and with
sufficient particularity to acquaint the defendant with the nature, source and
extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be sustained
where the pleading is so unintelligible that a defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. (Khoury v.
Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Id., § 436(b).) The grounds for a
motion to strike are: the pleading has irrelevant, false, or improper matter,
or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id. § 437.)
Analysis
1. Meet and
Confer Requirement
The Court
finds Defendant has complied with the meet and confer requirements set forth
under Code of Civil Procedure §§ 430.41 and 435.5. (Goodman Decl. at ¶5.)
2. Premises
Liability, Negligence, and Breach of Contract
Defendant alleges Plaintiff’s
first, second, and third causes of action for premises liability, negligence,
and breach of contract are barred by a contractual limitation on liability
contained in Plaintiff’s lease which states in pertinent part:
To the
fullest extent allowed by law, no member of the Landlord Indemnitees shall be
liable to Resident for any personal injury or property damage caused by the act
or omission of a Landlord Indemnitee, any other resident or Occupant or
household member of the residential or commercial portions of the project in
which the Premises is located or any other third party, or by any criminal act
or activity, war, riot, insurrection, fire, or act of God except to the extent
that such member’s liability arises from a duty of care imposed by law to
prevent the personal injury or property damage.
(Ex. A to Complaint at ¶26.) Plaintiff argues under a line
of cases beginning with Tunkl v. Regents of the University of
California
(1963) 60 Cal. 2d 92, such contractual limitations on future negligence may be
held void as against public policy when certain criteria are met. Tunkl
arose in the context of a contractual limitation on liability in a hospital
administration form, but its holding was subsequently recognized to apply to
similar contractual limitations in residential leases in Henriolle v. Marin Ventures,
Inc. (1978) 20 Cal. 3d 512, 518-519 [“exculpatory clauses in residential leases violate public
policy”].)
In its reply, Defendant attempts
to distinguish Tunkl as arising in the context of a hospital admission
form, but offers no response or rebuttal to the holding of Henriolle
which expressly extended the reasoning of Tunkl to residential leases. Defendant
also argues under Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057,
the enforceability of such an exculpatory clause will turn on the
interpretation of the parties’ intent in entering into the clause. The Court
disagrees. Burnett did not concern the circumstances in which an
exculpatory clause can be held void as violative of public policy, but rather concerned
whether the scope of a clause would cover the claims being asserted in a given
case. The Burnett Court acknowledged this determination “requires an
inquiry into the circumstances of the damage or injury and the language of the
contract; of necessity, each case will turn on its own facts.” (Id. at
1066.) Thus, even if Burnett applied, it requires a factual inquiry
which is beyond the scope of a demurrer.
Defendant also argues Plaintiff’s third
cause of action for breach of contract is fatally uncertain because Plaintiff
checked a box indicating he was seeking attorney’s fees by agreement or statute
“according to proof” but did not check the box stating he was entitled to
attorney’s fees. (Complaint at 7.) Defendant argues it cannot tell whether
Plaintiff is asserting a right to attorney’s fees. The Court notes the lease
attached to the Complaint contains an attorney fee clause. (Ex. A to Complaint
at ¶34.) Thus, the Complaint when read together with its exhibits evidences a
right to recover attorney’s fees.
Further, a plaintiff is not
required to pled or pray for attorney fees in a complaint to recover such fees
pursuant to a contractual fee provision. In Ganey v. Doran (1987) 191
Cal.App.3d 901, the appellant asserted “the trial court erred in awarding
attorney fees because [Respondent] neither pled nor prayed for attorney fees in
his complaint.” (Id. at 911). The Court found the argument was without
merit, explaining: “An action on a contract with an attorney fee provision ... has
not been treated by the courts as an action where the fees must be pleaded and
proved at trial.” (Id.) “Rather, the plaintiff may elect to have the
court determine the fees under section 1717 as costs.” (Id.). Thus, the
Court in Ganey found no error, where attorneys’ fees were awarded by
motion despite the lack of a prayer for such relief in the operative complaint.
As there is no requirement that Plaintiff affirmatively pled a claim for
attorney’s fees, any ambiguity as to whether Plaintiff is seeking those fees
does not render the Complaint fatally uncertain under Code Civ. Proc. §
430.10(f).
Defendant’s demurrer to the first,
second, and third causes of action is OVERRULED.
3. Fraud
The elements of a claim for fraud
are “(a) a misrepresentation (false representation, concealment, or
nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance;
(d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)
The facts constituting the alleged fraud must be alleged factually and
specifically as to every element of fraud, as the policy of “liberal
construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.) To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false representations,
their authority to speak, to whom they spoke, what they said or wrote, and when
it was said or written. (Tarmann v. State
Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Plaintiff’s claim for fraud is
based on theories of misrepresentation and concealment. The Complaint alleges
Defendant misrepresented to Plaintiff that any lost key cards to his apartment
would be automatically de-activated upon the issuance of new replacement cards.
Alternatively, Plaintiff contends Defendant concealed the fact that it would
not automatically de-activate lost key cards when new cards were issued.
(Complaint at 8.) Defendant argues Plaintiff has failed to plead these alleged
misrepresentations with the requisite specificity. Defendant claims the Complaint
does not state when these representations were made, by whom, or when.
In response, Plaintiff states the
misrepresentations were made in the lease itself, which states “Resident
further acknowledges that each copy of each key will be re-issued as any
previously as any previously issued keys will be automatically de-activated
upon issuance of a new key.” (Ex. A to Complaint at ¶44.) In his opposition,
Plaintiff argues the alleged misrepresentation “was made in writing in
paragraph 44 of the Lease Agreement” and was made “when Defendant presented
Plaintiff with a signed lease agreement.” (Opposition at 7.) However, these
factual allegations do not appear in the Complaint itself. If the alleged
misrepresentation is limited to the language in the written lease itself, that
should be pled expressly. As this issue can be cured by amendment, the Court
SUSTAINS Defendant’s demurrer to this cause of action with leave to amend.
4. Conversion
“Conversion is the wrongful
exercise of dominion over the property of another. The elements of a conversion
claim are: (1) the plaintiff’s ownership or right to possession of the
property; (2) the defendant’s conversion by a wrongful act or disposition of
property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th
1225, 1240.)
Defendant argues Plaintiff’s cause
of action for conversion does not appear to plead any facts against Defendant,
but only against Does 20-40. Defendant also notes the Complaint at first
indicates this cause of action is being asserted against Defendant and Does
1-40, but elsewhere indicates it is being pled only against Does 20-40. The
Court agrees it is unclear what parties this cause of action is being asserted
against and SUSTAINS Defendant’s demurrer to this cause of action on the basis
of uncertainty.
Plaintiff explains in his opposition that he
is asserting the fifth cause of action against Defendant on a theory of
respondeat superior liability for the acts of Does 20-40, who are alleged to be
employees of Defendant acting within the scope of course of their employment.
If this is Plaintiff’s theory as to the cause of action for conversion, it
should be pled expressly so Defendant is on notice of the claims and theories
of liability being asserted against it. The Court will sustain the demurrer to
this cause of action with leave to amend to allow Plaintiff to clarify its
theory of liability as to his cause of action for conversion.
Defendant argues in reply that it
cannot be held liable for conversion under a respondeat superior theory of
liability because conversion is an intentional tort and thus its employees
could not have possibility been acting in the scope and course of their
employment even if they did steal Plaintiff’s watches. Defendant’s argument is
contrary to law. “An employee’s willful, malicious and even criminal torts may
fall within the scope of his or her employment for purposes of respondeat
superior, even though the employer has not authorized the employee to commit
crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial
Hospital (1995) 12 Cal.4th 291, 296-297.) Respondeat superior liability may
attach even if the tortious act does not benefit the employer. (Id. at 296.)
The fundamental inquiry is whether the employee’s tort has a “causal nexus” to
the work he has undertaken. (Ibid.). This causal nexus is
distinguishable from “but for” causation. (Id. at 298.) It is not enough
that the employment brought the tortfeasor and the victim together in time and
place. (Ibid.) The tortious act must be “typical of or broadly
incidental to the enterprise” undertaken. Stated another way, the nature of the
work must be such that it inherently creates a risk “employees will commit
intentional torts of the type for which liability is sought.” (Ibid.) “Whether
or not the tort was committed in the scope of employment is a question of fact
not to be decided on demurrer.” (Noble v. Sears, Roebuck & Co.
(1973) 33 Cal.App.3d 654, 663.)
5. Motion to
Strike
Defendant moves to strike
Plaintiff’s claim for punitive damages. A review of the Complaint indicates
Plaintiff’s claim for punitive damages is based on its allegations of fraud and
conversion as pled in the fourth and fifth cause of action. Plaintiff
acknowledges as much in his opposition, stating “Multiple causes of action have
been alleged, with a Fourth Cause of Action for Fraud and a Fifth Cause of
Action for Conversion fully supportive of an award of punitive damages.”
(Opposition at 2.) As the Court has sustained Defendant’s demurrer to those
causes of action with leave to amend, the same result follows with respect to
Plaintiff’s claim for punitive damages. The Court thus GRANTS Defendant’s
motion to strike with leave to amend.
Conclusion
Defendant’s demurrer is OVERRULED as to Plaintiff’s first, second,
and third causes of action and is SUSTAINED with 30-days’ leave to amend as to
the fourth and fifth causes of action. Defendant’s motion to strike Plaintiff’s
claim for punitive damages is GRANTED with leave to amend.