Judge: Daniel S. Murphy, Case: 21STCV45416, Date: 2023-11-03 Tentative Ruling

Case Number: 21STCV45416    Hearing Date: January 29, 2024    Dept: 32

BACKGROUND

            This is a landlord-tenant dispute concerning habitability which was initially filed on December 13, 2021. The case involves eighteen plaintiffs living in various units of an apartment building since 2018. Plaintiffs filed the operative Second Amended Complaint on November 15, 2023. The SAC asserts eight causes of action against Defendants Vine 312 N, LLC and Does 1 through 50.

            On December 1, 2023, Defendants Vine 312 N, LLC, Charlie Chung (Doe 1), Sue Chung (Doe 2), Ari C. Harrison (Doe 3), Marie C. Fimbree (Doe 4), and Julie M. Chung (Doe 5) filed the instant demurrer and motion to strike against the SAC. Plaintiffs have not filed an opposition.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) 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.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendants have complied with the meet and confer requirement. (See Tercero Decl.)

DISCUSSION

I. Demurrer

            “The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (Lazar, supra, 12 Cal.4th at p. 645.)

            Defendants demur to the eighth cause of action for fraud on the grounds that the allegations lack specificity. The fraud claim alleges that “Defendants intentionally misrepresented that the tenants of Units D and E were responsible for paying their respective electricity and gas utility usage bills.” (SAC ¶ 52.) In reality, Plaintiffs allege, “Defendants charged Tenant-E a fixed flat fee for unlimited electricity and gas knowing that in fact, the tenants of Unit D were paying for Unit-Es utilities.” (Ibid.) Plaintiffs allege that this misrepresentation induced them into signing the rental agreements. (Id., ¶ 53.) The fraud claim incorporates allegations made earlier in the complaint, which allege that “Defendants informed Tenant-D that they would be solely responsible to pay utilities, including but not limited to electrical and gas, for Unit D.” (Id., ¶ 8.) The SAC further alleges that “Defendants informed Tenant-E that utilities, including electrical and gas were included in the monthly payment but that a fixed price had to be agreed upon.” (Id., ¶ 9.) The SAC alleges that Defendants “stat[ed] both verbally and in writing that Tenant-D and Tenant-E were each responsible for their respective utilities.” (Id., ¶ 10.)

            These allegations lack the requisite specificity. They broadly attribute the deception to “Defendants” even though there are six named defendants. Moreover, Defendant Vine 312 N, LLC is a company, making it all the more critical to identify the individual(s) authorized to speak on its behalf. (See Lazar, supra, 12 Cal.4th at p. 645, quoting Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The allegations do not specify who made each statement, how each statement was made, or when each statement was made. Therefore, the fraud claim has not been properly pled.

II. Motion to Strike

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., subd. (c)(2).) Fraud is “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., subd. (c)(3).)

Defendants argue that the SAC fails to plead facts rising to the level of malice, oppression, or fraud required for punitive damages. As discussed above, Plaintiffs have failed to properly allege fraud. Plaintiffs also fail to identify any facts supporting an inference of malice or oppression.

CONCLUSION

            Defendants’ demurrer is SUSTAINED with leave to amend. The motion to strike is GRANTED with leave to amend.