Judge: Douglas W. Stern, Case: 21STCV44595, Date: 2022-09-09 Tentative Ruling

Case Number: 21STCV44595    Hearing Date: September 9, 2022    Dept: 52

Tentative Ruling:

            Defendant Pamela Jones’s Demurrer to Second Amended Complaint

            Defendant Pamela Jones, individually and as trustee for Pamela Jones Trust, demurs to the fourth, eighth, and ninth causes of action alleged in plaintiff Paula Clay’s second amended complaint.

Relevant Allegations

The fourth, eighth, and ninth causes of action all rely on the following allegations, which plaintiff added to this second amended complaint:

[O]n April 20, 2022, Defendant sent a letter to Plaintiff indicating that there would be a disruption in the water service from May 2, 2020 to May 3, 2020.  [¶]  The letter stated that “it is estimated that the water would need to be turned off on May 1, 2022 from 8:00 a.m. to 5:00 p.m. and on May 2 from 10:00 a.m. to 2:00 p.m.”  [¶] The letter also stated the following: “Unfortunately at this time I am unable to tell you how long it will take to complete all of the necessary work.”  [¶]  Following the letter, Defendant shut off the water to Plaintiff’s unit.  [¶]  As a result, Plaintiff was without consistent running water in her home for a total of 9 days.

(SAC, ¶¶ 118-122, 162-166.)

4th Cause of Action: Willful Interruption of Services

            Plaintiff alleges sufficient facts for this cause of action.   For this cause of action, a plaintiff must allege that defendant “willfully cause[d], directly or indirectly, the interruption or termination of any utility service…  furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.”  (Civ. Code, § 789.3(a).)

            The second amended complaint alleges defendant sent plaintiff a letter stating there would be a disruption in water service.  (SAC, ¶ 118.)  “Following the letter, Defendant shut off the water to Plaintiff’s unit.”  (¶ 121.)  “Upon information and belief this was done in an effort to terminate Plaintiff’s occupancy.”  (¶ 123.)  “Defendants by and through their conduct willfully caused this interruption of utility services with the intent to terminate Plaintiff’s occupancy.”  (¶ 124.)

            In contrast with the second amended complaint, the first amended complaint alleged only that plaintiff lacked various utility services (FAC, ¶¶ 117-120) but made no factual allegation that defendant “shut off the water” or turned off or interfered with any of her utilities.

8th Cause of Action: Intentional Misrepresentation & 9th Cause of Action: Negligent Misrepresentation

            Plaintiff fails to allege sufficient facts for intentional or negligent misrepresentation.  Intentional misrepresentation requires: (1) a misrepresentation of fact; (2) knowledge of falsity; (3) an intent to defraud; (4) justifiable reliance; and (5) damages.  (Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1079.)  “The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ ”  (Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559, 1573.)

These causes of action require a heightened standard of pleading.  “[F]raud must be pled specifically” by “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar), internal quotes omitted.)  “Negligent misrepresentation is, of course, a species of fraud.”  (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 69.) 

As in the first amended complaint, plaintiff’s second amended complaint makes vague and conclusory allegations that defendant concealed “that the Premises was not fit for human occupation and contained a number of issues” (SAC, ¶ 175) and “concealed said mold issues to Plaintiff and made other misrepresentations that the Premises was fit for human occupancy.”  (¶ 181.)  These allegations fail to include any of the required details of how, when, where, and by what means the misrepresentations were made.  The second amended complaint does not specify what “said mold issues” were or what the “other misrepresentations” were.

In connection with these allegations, plaintiff also fails to allege she did anything in reliance on defendant’s concealment, i.e., that she would have done something differently if she had known the truth, and that her reliance caused her damages. 

In addition to the vague allegations described above, plaintiff now alleges defendant misrepresented that the water would only be off on May 1, 2, and 3.  (SAC, ¶¶ 162-163.)  Plaintiff alleges, “Upon information and belief, Defendants knew that Plaintiff would be without water for more than two days.  Upon information and belief, Defendants intentionally and deceitfully concealed this fact from Plaintiff.”  (¶¶ 167-168.)

With respect to this alleged misrepresentation, plaintiff fails to allege justifiable reliance.  “[T]he reasonableness of the reliance is ordinarily a question of fact.  [Citations.]  However, whether a party’s reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts.”  (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843.)

Plaintiff makes the conclusory allegation, “Plaintiff reasonably relied on Defendant’s misrepresentation because Defendant is the owner of the Premises and Plaintiff is a tenant.”  (SAC, ¶ 171.)  But the purported misrepresentation was in a letter that stated both: (a) “it is estimated that the water would need to be turned off” on May 1 and May 2; and (b) “at this time I am unable to tell you how long it will take to complete all of the necessary work.”  (SAC, ¶¶ 163-164.)  One cannot reasonably rely on a written letter’s representation that the water would be off for only two days when that same letter includes an express disclaimer that the disruption could last longer. 

Plaintiff also fails to allege she suffered any damages because of the alleged intentional or negligent misrepresentation about the water disruption.  Plaintiff must “allege [her] damages were caused by the actions [she] took in reliance on the defendant’s misrepresentations.”  (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1064.)  “If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained.”  (Ibid.)  A plaintiff is “incapable of alleging damages” when “even in the absence of the defendant’s fraud, the plaintiff would have suffered the same injury.”  (Id. at pp. 1064-1065.) 

The second amended complaint makes three allegations purporting to show that plaintiff’s reliance on defendant’s misrepresentation caused her damages: “Plaintiff relied on said misrepresentation and did not seek alternative housing accommodations during the time she was denied running water inside her home.”  (SAC, ¶ 172.)  “Plaintiff had to pay out of her own pocket for food and other items since she did not have running water or other amenities contained on the Premises.”  (¶ 173.)  “Plaintiff was not provided comparable housing during this time.”  (¶ 174.)

The allegation that plaintiff incurred additional expenses because she lacked running water (¶ 173) cannot constitute damages caused by the fraud or caused by her actions in reliance on the alleged misrepresentation.  Plaintiff incurred those expenses because she had no water.  What defendant told her about her water did not cause those expenses.  She would have suffered the same injury even in the absence of defendant’s fraud. 

The other two allegations also fail to show plaintiff suffered damages because of the fraud or her actions taken in reliance on defendant’s misrepresentation.  Plaintiff alleges that if she had known she would have no water for over a week, she would have sought alternative housing accommodations.  (SAC, ¶ 172.)  That could not cause damages because it cost her nothing. 

Damages caused by plaintiff’s actions taken in reliance on the misrepresentation typically require that the plaintiff did something affirmative that cost her something.  For example, in Lazar v. Superior Court, the plaintiff quit his job and moved to California in reliance on defendant’s false promises.  The Supreme Court of California held he could “properly seek damages for the costs of uprooting his family, expenses incurred in relocation, and the loss of security and income associated with his former employment.”  (Lazar, supra, 12 Cal.4th at pp. 648-649.)

Rather than spending money in reliance on the misrepresentation, here, in reliance on the misrepresentation, plaintiff opted not to do something costly that she would have otherwise done.

The third allegation in this section clarifies the true cause of any damages: “Plaintiff was not provided comparable housing during this time.”  (SAC, ¶ 174.)  The cause of her damages was not that she relied on a misrepresentation.  The cause was that defendant failed to provide water service, failed to provide alternative housing accommodations, and failed to provide other compensation to plaintiff.  Plaintiff’s other causes of action already encompass those allegations and injuries.  The second amended complaint unsuccessfully attempts to transform landlord/tenant claims into fraud. 

Leave to Amend

After a successful demurrer, where “there is a reasonable possibility that the defects can be cured by amendment, leave to amend must be granted.”  (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)  The plaintiff bears the burden of “demonstrat[ing] how the complaint can be amended.”  (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)  Leave to amend should be denied where “no liability exists under substantive law.”  (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)

Plaintiff shows no possibility of amending the complaint to cure the defects in her eighth and ninth causes of action.  She has already amended the complaint twice.  She did not oppose this demurrer or demonstrate in any other way how she can sufficiently allege intentional or negligent misrepresentation.  This is a landlord/tenant case, not a fraud case.

Disposition

Defendant Pamela Jones’s demurrer to the fourth cause of action is overruled.  Defendant Pamela Jones’s demurrer to the eighth and ninth causes of action is sustained without leave to amend.

Defendant Pamela Jones is ordered to answer within 15 days.