Judge: David B. Gelfound, Case: 24CHCV02580, Date: 2024-10-25 Tentative Ruling

Case Number: 24CHCV02580    Hearing Date: October 25, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 8/1/24

MOVING PARTY: Defendant Burns & Partners, Inc.

RESPONDING PARTY: None. 

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendant’s Demurrer to the First and Third Causes of Action in Plaintiffs’ Second Amended Complaint and striking portions thereof.

TENTATIVE RULING: The Demurrer is SUSTAINED IN PART. The Motion to Strike is DENIED AS MOOT.

BACKGROUND

This action stems from a dispute over a property insurance claim related to water loss and damages at Plaintiffs’ residential property and contract work provided by the moving defendant.

On August 28, 2023, Plaintiffs Teresa Arasheben (“Arasheben”) and Teresa Arasheben as Trustee of Teresa Arasheben Trust (collectively, “Plaintiffs”) initiated this action.

On April 3, 2024, the Court granted in part an Anti-SLAPP motion, filed by the non-moving Defendant Standard Fire Insurance Company (“Standard”) on November 2, 2023, and granted Plaintiffs 10 days’ leave to amend. Subsequently, on April 9, 2024, Plaintiffs filed their First Amended Complaint.

On June 24, 2024, Plaintiffs filed their operative Second Amended Complaint (“SAC”) against Defendant Burns & Partners, Inc. d/b/a Burns Environmental Services (“Burns”), Standard (collectively, “Defendants”) and Does 1 through 20, alleging the following causes of action: (1) Breach of Contract (against all Defendants), (2) Breach of Implied Covenant of Good Faith and Fair Dealing (against Standard), and (3) Gross Negligence (against Burn). Subsequently, Standard filed its Answer to the SAC on July 23, 2024.

On August 1, 2024, Burns filed the instant Demurrer with a Motion to Strike to the SAC. Subsequently, on October 22, 2024, Burns filed a Notice of Non-Receipt of Opposition.

No Opposition papers have been received by the Court.

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

A.    Request for Judicial Notice

Burns requests that the Court take judicial notice of the following matters:

1.      Request for Judicial Notice (“RJN”) No. 1: Plaintiffs’ original Complaint,

2.      RJN No. 2: Plaintiffs’ First Amended Complaint,

3.      RJN No. 3: Plaintiff’s Second Amended Complaint, and

4.      RJN No. 4: Declaration of R. Dolan in Support of Extension to File Demurrer and Motion to Strike Due to Plaintiffs’ Counsel’s Refusal to Meet and Confer, filed July 24, 2024.

The Court notes that Burns seeks judicial notice of four prior filings within this case. The Court need not take notice of filings within its own case record. Judicial notice of court filings recognizes only the fact of their filing and that the statements therein were made; the court does not take notice of their contents’ truth. (Wolf v. CDS Devo (2010) 185 Cal.App.4th 903, 914-915.) The facts of the documents’ filing and contentions are already in the case file. To take unnecessary, redundant judicial notice would only create confusion.

            Accordingly, the Court DENIES the RJN.

B.     Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) However, a failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Here, Burns made a good faith effort to fulfill the meet and confer requirement. (2024/7/24 Dolan Decl. ¶¶ 4-6.)

Additionally, because Burns and Plaintiffs were unable to meet and confer at least 5 days before the date the responsive pleading was due, an automatic 30-day extension to file the instant Demurrer is triggered, as provided by Code of Civil Procedure section 435.5, subdivision (a)(2).

C.    Demurrer

Burns demurs to the First and Third Causes of Action in the SAC.

1)       First Cause of Action – Breach of Contract

A plaintiff must plead the following elements for a breach of contract cause of action: (1) existence of contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s’ breach (or anticipatory breach), and (4) resulting damage to plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

Burns contends that the First Cause of Action is deficient on two grounds: (1) Plaintiffs fail to allege the existence of a second contract, specifically the waiver letter, either by including its terms verbatim in the SAC or by adequately stating its legal effect; and (2) the inconsistency between Plaintiffs’ allegations and the attached exhibit undermines the First Cause of Action insufficient under the doctrine of truthful pleading. (Dem. at p. 16.)

As further explained below, the Court finds these arguments unpersuasive for the following reasons.

i)                   Failure to Allege the Existence of the Waiver Letter

The SAC references its Exhibit “1” in two instances. First, Plaintiffs describe Exhibit “1” as a “written agreement.” (SAC ¶ 41 [“PLAINTIFFS entered into a written agreement with BURNS which is hereinafter called the BURNS AGREEMENT and attached hereto at Exhibit ‘1’. The BURNS AGREEMENT sets forth the description for the project, the work to be performed, BURNS’ general procedures, materials to be used and the equipment to be installed.”] (Underlines added.))

In another instance, the SAC alleges that Exhibit “1” contains “a letter waiving Clearance testing of the work.” (SAC ¶ 24, [“BURNS was contacted, and a contract was signed by TERESA to start the Lead abatement. Upon completion of the work, BURNS contacted TERESA requesting her to sign a letter waiving Clearance testing of the work. TERESA refused, however due to BURNS’ constant harassment TERESA instead of signing her name wrote “Duress” in the signature block. A copy of said contract is attached hereto as Exhibit ‘1’.”] (Underlines added.))

However, the Court observes that the Exhibit “1” to the SAC contains only a 21-page document titled the “Home Improvement Contract” (the “Home Improvement Contract”) (SAC Ex. “1”) and does not include the alleged “letter waiving Clearance testing of the work” (the “Waiver Letter”).

Nevertheless, this omission is not consequential. While Burns points out that “Plaintiffs appear to allege, albeit vaguely, duress” concerning the Waiver Letter, Plaintiffs are not required to plead the existence of the Waiver Letter in this instance, as the cause of action is based on the Home Improvement Contract.

This is supported by the allegations in the SAC, which states, “BURNS breached the BURNS AGREEMENT when it, inter alia,: (1) did not provide proper mobilization charges to set up and contain the work area or adequate in capsulation with plastic sheeting to prevent dispersion of dust and debris during the abatement process; (2) conducted Lead abatement in the Property without adequate capsulation; (3) failed to commence procedures reasonably necessary to effectively and properly abate Lead, and ( 4) failed to show proof of air and surface clearance test indicating compliance with thresholds for Lead, before taking the barriers down (5) Take adequate measures to remove the Lead contaminated material to avoid cross contamination of backyard” (SAC ¶ 44.)

It is evident that the alleged breach pertains to the obligations within the scope of the Home Improvement Contract, which is distinct from the purpose of the Waiver Letter. (SAC ¶ 24.)

Additionally, the claim should be interpreted as seeking enforcement of the Home Improvement Contract, not rescission. As such, the grounds for rescission under the Code of Civil Procedure section 1689, subdivision (b)(1), as cited by Burns, are irrelevant to this matter.

In other words, recognizing that the Waiver Letter is separate from the Home Improvement Contract, the omitted Waiver Letter is not necessary to establish the existence of the contract. Therefore, it does not affect the Court’s review of the Demurrer to the breach of the Home Improvement Contract claim.

Conversely, if Burns wishes to assert an affirmative defense based on the Waiver Letter, the burden rests with Burns, not Plaintiffs, to plead and prove its existence.

Accordingly, the Court finds Burns’s argument misplaced regarding the alleged breach of the Home Improvement Contract.

ii)                 Inconsistency between the Allegation and Exhibit

Burns argues that the Home Improvement Contract, as reflected in Exhibit “1” with “Duress” in Plaintiffs’ signature blocks, should be given preference over any allegation seeking to enforce the contract.

However, the Court notes that the effect of duress on a contract is not the issue here. As previously discussed, the First Cause of Action is clearly seeking to enforce the Home Improvement Contract, not to rescind it.

            Furthermore, even assuming that the Home Improvement Contract was tainted by duress, it would be voidable, not void. (See Barnette v. Wells Fargo Nevada Nat. Bank of San Francisco (1926) 270 U.S. 438, 444 [“Acts induced by duress ... are not void in law, but are voidable only, at the election of him whose act was induced by it”].)

This means the victim of duress, allegedly Plaintiffs here, has the option to void the contract but may also choose to affirm it, making the contract enforceable. Consequently, there is no inconsistency between Plaintiffs seeking to enforce the Home Improvement Contract while alleging that the contract was signed under duress.

            Therefore, the Court OVERRULES the Demurrer as to the First Cause of Action for Breach of Contract.

1)      Third Cause of Action – Gross Negligence

            California law does not recognize an independent cause of action for gross negligence. Rather, gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. To set forth a claim for “gross negligence” the plaintiff must also allege conduct by the defendant involving either “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [citation omitted].)

i)                   Sufficiency of Allegation for Gross Negligence

Burns first argues that the Third Cause of Action fails to sufficiently allege facts demonstrating “an extreme departure from the ordinary standard of conduct” required to support a claim of gross negligence.

            Since gross negligence is pleaded based on the traditional elements of negligence, the Court first examines the elements of duty and breach of duty, as raised by Burns.

            Here, the SAC alleges, “BURNS owed PLAINTIFFS a duty not to impose injuries and/or damages onto PLAINTIFFS and/or the Property and to exercise reasonable care to protect PLAINTIFFS from harm while conducting its asbestos abatement services at the Property.” (SAC ¶ 61.)

Moreover, the SAC states, “...BURNS grossly breached its duty to exercise reasonable skill and care in performing its Lead abatement services at the Property, in that it: (1) did not provide proper in-capsulation to set up and contain the work area with plastic sheeting to prevent dispersion of dust and debris during the abatement process; (2) conducted Lead abatement in the Property without adequate capsulation; and, (3) failed to commence procedures reasonably necessary to effectively and properly abate the lead (4) failed to obtain proper clearance before taking the barrier down. BURNS, knowing that their breach of duty to PLAINTIFFS would result in severe injury to PLAINTIFFS did not take any measure to prevent such injury and exhibited a lack of care and/or extreme departure from what a reasonably careful person would do in the same situation as them respectively, to prevent harm to others.” (SAC ¶ 62.)

The Court finds that the SAC has alleged the traditional elements of negligence: especially, duty and breach as outlined in the above paragraphs. However, even when liberally construing these allegations, as required at this stage of the proceeding, the Court does not find that Burns’s conduct rises to the level required to establish gross negligence. Specifically, Burns’s actions, as alleged, do not constitute conduct that “substantially or unreasonably increased the inherent risk of an activity,” “actively concealed a known risk,” or “evinces an extreme departure from [contractor’s] safety direction or an industry standard.” (See Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881.) The conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not meet the threshold of gross negligence.

Accordingly, the Court SUSTAINS the Demurrer as to the Third Cause of Action on this basis.

ii)                 Absence of a Legal Duty Independent of the Contract

Alternatively, the Court also finds persuasive Burns’s second argument that this claim is subject to Demurrer because it attempts to convert the Breach of Contract claim into a tort cause of action. (Dem. at pp. 19-20.)

It is well-established that “conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) “An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.” (Ibid., quoting Jones v. Kelly (1929) 208 Cal. 251, 255.)

As the California Supreme Court explained in Erlich v. Menezes (1999) 21 Cal.4th 543 (Erlich), “[g]enerally, outside the insurance context, “a tortious breach of contract ... may be found when (1) the breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion or; (3) one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages. [Citations]” (Id. at p.  553.)

            Here, without considering mere deductions or conclusion of fact or law, the Court finds that the Third Cause of Action fails to allege any fraudulent conduct or intentional breach by Burns. Nor have Plaintiffs included any factual allegation suggesting that Burns’s breach of contract caused physical harm.

Consequently, the Court determines that Plaintiffs have failed to establish a duty that give rise to tort liability that is completely independent of the contract obligations. (See J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396 [holding that a negligence claim must be based on a duty owed by defendant to plaintiff. Absent such a duty, there is no liability, no matter how easily the injury might have been prevented.])

            Therefore, the Court SUSTAINS the Demurrer as to the Third Cause of Action on this alternative ground.

2)      Leave to Amend

Generally, leave to amend is available when “the defect raised by a motion to strike or by demurrer is reasonably capable of cure . . . to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) A demurrer may be sustained without leave to amend where, “‘the facts are not in dispute, and the nature of the plaintiff's claim is clear, but, under the substantive law, no liability exists.’ [Citation.]” (Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1233.) The burden of proving the existence of a reasonable possibility to cure the defect by amendment is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

As previously discussed, the Third Cause of Action for Gross Negligence is subject to Demurrer on two independent grounds: (1) failure to state facts sufficient to constitute a gross negligence claim, and (2) improper splitting the breach of contract claim into a tort claim.

The second independent ground leads the Court to conclude that this defect may not be cured with a reasonable possibility by amendment, as no liability is viable for any form of negligence.

Additionally, Plaintiffs have failed to submit an Opposition, waiving the issues at bar. Furthermore, Plaintiffs have had two opportunities in amending the pleading but fail to meet the pleading standards.

Therefore, the Court SUSTAINS the Demurrer as to the Third Cause of Action without leave to amend.

iii)               Motion to Strike

Burns moves for the Court to strike portions of the SAC pertaining to the Third Cause of Action:

1.      Paragraph 64: “PLAINTIFFS are informed and believe, and thereon allege that the actions of BURNS and of its agents, were a conscious and voluntary disregard of the need to use reasonable care, BURNS' actions, or lack thereof, were willful, wanton and reckless conduct which was likely to cause foreseeable grave injury or harm to persons, property, or both. When compared to ordinary Negligence, BURNS conducts were extreme, and that by reason of BURNS' Gross Negligence, PLAINTIFFS are entitled to punitive and exemplary damages in a sum according to proof.”

2.      Item 14 under Prayer: “Punitive Damages”

Since the Court has sustained the Demurrer as to the Third Cause of Action, all related portions are stricken in their entirety, making the motion to strike those portions moot.

Therefore, the Court DENIES AS MOOT the Motion to Strike.

CONCLUSION

Defendant Burns & Partners, Inc.’s Demurrer to the First Cause of Action for Breach of Contract in the Second Amended Complaint is OVERRULED.

Defendant Burns & Partners, Inc.’s Demurrer to the Third Cause of Action for Gross Negligence in the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Burns & Partners, Inc.’s Motion to Strike is DENIED AS MOOT.

Defendant Burns & Partners, Inc. is ordered to serve and file its Answer to the Second Amended Complaint within 30 days.

Moving party to give notice.