Judge Elaine W. Mandel, Case Number: 21SMCV00336, Date: 2023-09-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 21SMCV00336, Date: 2023-09-06 Tentative Ruling

Case Number: 21SMCV00336 Hearing Date: September 6, 2023 Dept: P

Tentative Ruling

Rowley v. James et al., Case No. 21SMCV00336

Hearing Date September 6, 2023

Rowley’s Demurrer to/Motion to Strike Portions of Third Amended Cross-Complaint (UNOPPOSED)

Cross-complainant James alleges cross-defendant Rowley guaranteed rent payments due under James’ lease (which he shared with Rowley’s daughter, cross-defendant Madeleine Rowley) with cross-defendant EQR-411 Sout Marina LP. James alleges Rowley failed to pay rent under the guaranty agreement and defamed him by accusing him of domestic violence.

Breach of Contract

Under Cal. Civ. Code §2815, “a continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration which he does not renounce.” A third party cannot enforce a contract, even if he is incidentally benefitted by it, unless it is “the intention of the parties to secure him the benefit of its provisions.” Eastern Aviation Group, Inc. v. Airborne Express, Inc. (1992) 6 Cal.App.4th 1448, 1452.

Rowley argues James cannot seek to enforce the guaranty because it was properly revoked under Cal. Civ. Code §2815. This factual claim lies outside the four corners of the pleading. No judicially noticeable evidence indicates the contract was properly rescinded under §2815, so revocation is not a proper basis for demurrer. However, Rowley correctly notes James has not adequately alleged he is an intended third-party beneficiary of the contract. As a stranger to the agreement, James lacks standing to enforce it. SUSTAINED without leave to amend.

Breach of Oral Agreement

James alleges an oral agreement with Rowley, whereby Rowley agreed to pay his rent owed to EQR-4111 in exchange for $200 per month from Rowley. Under the statute of frauds, an agreement “that by its terms is not to be performed within a year of the making thereof” must be in writing. Cal. Civ. Code §1624(a)(1)-(3).

Rowley argues this agreement is unenforceable under the statute of frauds because the lease agreement it is based on is for over one year. Complaint exhibit A. The FACC does not explicitly allege the oral agreement is tethered to the written lease or that it is intended to last for the entire period of the written lease. Rowley would need to present further evidence regarding the parties’ intentions when the oral agreement was formed to prevail on a statute of frauds claim.

Rowley also argues the oral contract cause of action fails to allege consideration. Rowley argues providing “$200 per month as a sign of appreciation,” as alleged in the TACC, does not constitute a contractual obligation. The TACC, however, explicitly alleges this payment was made in exchange for Rowley’s promise. TACC at ¶39. On demurrer, the allegation must be treated as true. Rowley provides no authority for the proposition that a payment made “as a sign of appreciation” cannot also serve as a contractual promise. James adequately alleged a contract and consideration. OVERRULED.

Conspiracy

Civil conspiracy is not an independent tort— it is a form of liability by which a person who does not directly commit a tort can be held liable for sharing a common plan or design with direct tortfeasors. City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211.

James’ conspiracy cause of action fails to allege a specific independent tort that forms the basis of the alleged conspiracy. Without a distinct underlying tort, the conspiracy claim cannot stand on its own. SUSTAINED without leave to amend.

Fraud/Deceit

A cause of action for fraud must be pleaded with a heightened level of specificity. Apollo Capital Fund, LLC v. Roth Capital Partners LLC (2007) 158 Cal.App.4th 226. Rowley argues James has not pleaded fraud or deceit with sufficient particularity. The FACC specifically alleges Rowley falsely told James in person at his residence that he would cover his rent obligations. TACC ¶¶49. This is sufficiently specific to survive demurrer. OVERRULED.

Wrongful Eviction

The TACC does not allege Rowley was James’ landlord, nor does it otherwise allege he had the ability or right to evict James. According to James, EQR-4111 owns the property. This cause of action fails as against Rowley. SUSTAINED without leave to amend.

Intentional Infliction of Emotional Distress

A cause of action for IIED requires a plaintiff to allege conduct “so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized community.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051. Rowley alleges the IIED claim fails because it is based on an eviction that Rowley had no part in. The cause of action, however, alleges other wrongdoing, namely that Rowley instructed his daughter to falsely accuse James of domestic abuse. TACC ¶57. For purposes of pleading, this allegation must be treated as true. If proven, it would constitute “outrageous” conduct sufficient to support a claim for IIED. OVERRULED.

Negligence

On May 31, 2023 the court sustained a demurrer to James’ negligence cause of action without leave to amend. James was not given leave to restore those claims. SUSTAINED without leave to amend.

Unjust Enrichment

A cause of action for unjust enrichment requires a plaintiff to allege defendant’s receipt of a benefit and unjust retention of that benefit. Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238-242. Rowley argues this cause of action fails because the TACC does not allege he received a financial benefit at James’ expense. The TACC claims Rowley received regular $200 payments from James but did not make promised rent payments. TACC ¶71. James adequately alleged unjust enrichment. OVERRULED.

Estoppel

This cause of action is based on plaintiff’s alleged reliance on a settlement agreement related to the premises. TACC ¶78. The TACC, however, does not clearly allege how cross-defendants induced James to rely on the benefits of the settlement, or how James was damaged by this reliance. TACC ¶78. SUSTAINED without leave to amend.

Retaliation and Oppression

The court sustained demurrers to these causes of action without leave to amend on May 31, 2023. The court did not give leave to restore the claims. SUSTAINED without leave to amend.

Libel/Defamation

Rowley argues James does not clarify who made the defamatory communications underlying this claim, and any alleged derogatory statements are protected by the litigation privilege. The TACC alleges “defendant published the false and defamatory statement that plaintiff abused, manipulated, and committed criminal conduct.” TACC ¶102. The TACC does not clarify how these statements were made or to whom they were made. The libel/defamation claim is subject to demurrer for uncertainty. SUSTAINED with leave to amend.

Motion to Strike

Rowley moves to strike James’ request for punitive damages. As stated above, James adequately alleged causes of action for fraud and IIED, both of which, if successful, could support an award of punitive damages. Motion to strike DENIED.