Judge: Elaine W. Mandel, Case: 19SMCV01622, Date: 2022-12-16 Tentative Ruling
Case Number: 19SMCV01622 Hearing Date: December 16, 2022 Dept: P
Tentative Ruling
Ryan Ghods v.
Coldwell Banker Commercial NRT et al., Case No. 19SMCV01622
Hearing Date
December 16, 2022
Cross-Defendants
Lionhead Global #2 LLC and Robert Mayman’s Demurrer to Third Amended
Cross-Complaint and Motion to Strike
Plaintiff Ghods
alleges defendant Coldwell Banker Commercial and its agents David Thind and
David Maldonado represented him in the negotiation of a sublease agreement for
a commercial property. Plaintiff intended to use the property as a retail
store, but he alleges that use was prohibited by local zoning rules. Plaintiff alleges
defendant Coldwell negligently or fraudulently failed to inform him that his
intended use of the property was illegal.
Kailah Pink,
plaintiff Ghods’s ex-fiance and former business partner, filed a
cross-complaint containing similar allegations of professional negligence,
breach of fiduciary duty and constructive fraud against the property’s owner,
LionHead Global #2 LLC and its alleged property manager Robert Mayman. LionHead
and Mayman demur to the third amended cross-complaint (TACC).
Agent’s Immunity Rule
Cal. Civ. Code §1714.10 shields an attorney from
liability for civil conspiracy with his or her client arising from an attempt to
contest or compromise a claim or dispute. Cal. Civ. Code §1714.10.
Cross-defendants argue Mayman is protected from liability
by §1714.10. The TACC, however, does not allege an attorney-client civil
conspiracy “arising from an attempt to contest or compromise a claim or
dispute.” The statute does not apply.
Professional Negligence
A cause of action for professional negligence, as
opposed to ordinary negligence, is premised on a duty that a professional owes
to a client. Loube v. Loube (1998) 64 Cal.App.4th 421, 425. Absent a
contractual relationship between the professional and their client, there can
be no liability for professional negligence. Id. at 429.
Cross-defendants demur on the grounds that the TACC
does not allege a professional-client relationship between Mayman/LionHead and
Pink. This is a valid basis for demurrer. No such relationship is alleged, so
no professional negligence cause of action can lie. SUSTAINED.
Breach of Fiduciary Duty
A cause of action for breach of fiduciary duty
requires plaintiff to plead that defendant knowingly undertook to act on behalf
of or for the benefit of another or entered into a relationship which imposes
that undertaking as a matter of law. Committee on Children’s Television,
Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221. A landlord and a
tenant generally do not stand in a fiduciary relationship. Frances T. v.
Village Green Owners Ass’n. (1986) 42 Cal.3d 490, 513.
The TACC does not specifically allege how a fiduciary
relationship between Pink and Mayman/LionHead was created. It states they “owed
Ghods and Plaintiff fiduciary duties of care, imposed by law and state statute
as a legal tenant of 1511 Abbot Kinney.” TACC ¶49. As explained above, a
landlord-tenant relationship, without more, does not create a fiduciary duty. SUSTAINED.
Constructive Fraud—Concealment
A cause of action for constructive fraud applies only
to a fiduciary or confidential relationship. Prakashpalan v. Engstrom,
Lipscomb, & Lack (2014) 223 Cal.App.4th 1105, 1132.
The TACC does not adequately allege a fiduciary
relationship. Therefore, no cause of action for constructive fraud can proceed.
SUSTAINED.
Intentional Infliction of Emotional
Distress (IIED)
A cause of action for IIED requires a plaintiff to
plead “outrageous” conduct, defined as conduct “so extreme as to exceed all
bounds of that usually tolerated in a civilized community.” Hughes v. Pair (2009)
46 Cal.4th 1035, 1050-1051.
The TACC states LionHead and Mayman “allowed the
sub-sublessors to engage in a retaliatory eviction against co-plaintiffs Pink
and Ghods[.]” TACC ¶88. “Allowing” a third party to engage in litigation
activity does not constitute outrageous conduct. SUSTAINED.
Motion to Strike
Because the demurrer has been sustained to all causes
of action alleged against LionHead and Mayman, the motion to strike is MOOT.