Judge: Elaine W. Mandel, Case: 22SMCV01418, Date: 2023-04-25 Tentative Ruling

Case Number: 22SMCV01418    Hearing Date: April 25, 2023    Dept: P

Tentative Ruling

Roth v. Arakelian Enterprises, Inc., DBA Athens Services, Case No. 22SMCV01418

Hearing Date April 25, 2023

Arakelian Enterprises and Caraballo’s Demurrers/Motions to Strike Plaintiff’s Complaint

Plaintiff Roth alleges a sanitation truck belonging to defendant Athens struck his parked car and drove away. Roth further alleges he called Athens to report the hit-and-run, but Athens employee Caraballo mishandled his claim. Caraballo and Athens demur.

The demurrers are supported by a declaration from attorney Weiss, who attempted to meet and confer as required by Cal. Code of Civ. Proc. §430.41. She left multiple messages but received no response from plaintiff’s counsel. Weiss decl. ¶¶3-9. Roth argues Weiss failed to attempt to meet and confer. The court disagrees.

Athens Demurrer

Breach of Good Faith and Fair Dealing

Every contract implies a covenant of good faith and fair dealing; a breach of that covenant is a breach of the contract. Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 409, 429. Therefore, a breach of the implied covenant claim requires privity of contract. E.F. Hutton v. City National Bank (1983) 149 Cal.App.3d 60, fn. 12. A third-party beneficiary to a contract can bring a claim for breach of the covenant of good faith and fair dealing, but to do so they must explicitly allege the contract was made expressly for the third party’s benefit. Id.; HN and Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 37, 43.

The complaint does not allege a contract between Roth and Athens. The contract claims appear to be based on a contract with the city of Los Angeles. Roth does not explicitly allege the contract was made for his benefit, so has not provided a basis for third-party beneficiary standing. Additionally, he does not set forth the specific contractual terms Athens allegedly breached. Roth does not deny any of these deficiencies. SUSTAINED with ten days leave to amend.

Intentional Infliction of Emotional Distress (IIED)

To sustain a cause of action for IIED, plaintiff must allege outrageous conduct, i.e. conduct “so extreme as to exceed as all bounds of that usually tolerated in a civilized society. Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209. Outrageous behavior must be alleged with specificity. Yau v. Allen (2014) 229 Cal.App.4th 144, 160-161. Liability for intentional infliction of emotional distress “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. Plaintiff must allege severe emotional distress. Id.

The IIED claim is based on Caraballo’s alleged “scornful and presumptuous treatment[.]” Complaint pg. 8. Caraballo allegedly attempted to “gaslight and cause distress to plaintiff,” and sent him a “very accusatory, critical, and defamatory” email. Id. at pg. 9. Finally, she allegedly “inferr[ed] that plaintiff is a racist[.]” Id.

This amounts to “mere insults [or] indignities.” Hughes, supra, at 1051. It does not rise to the level of outrageous conduct and is not alleged with particularity. Plaintiff fails to specifically allege severe emotional distress. SUSTAINED with ten days leave to amend.

Conspiracy/Aiding and Abetting

A plaintiff alleging conspiracy must specifically allege defendant knew of the underlying tort, came to a mutual understanding to accomplish it, and committed an overt act in furtherance of the tort. Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.

Roth’s claim for conspiracy is vague and conclusory. He alleges “Athens owners and/or upper management were encouraging, aiding and abetting its employees to avoid damaged parties[.]” Complaint pg. 9. Roth does not allege a specific overt act in furtherance of the conspiracy or a mutual understanding to further wrongdoing. SUSTAINED with ten days leave to amend.

Intentional/Negligent Misrepresentation.

Both intentional and negligent misrepresentation are fraud claims, requiring all relevant elements to be alleged with heightened specificity. E.g., West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association (2018) 19 Cal.App.5th 399, 428. Plaintiff’s justifiable reliance is an element of all fraud claims. E.g., City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 445, 482.

Roth’s misrepresentation causes of action are based on the allegation that Athens never intended to perform various promises in its contract. Roth does not alleges these promises were directed to him. While the complaint states plaintiff “relied on Defendant Athens agreement,” it is unclear how he could have relied on representations made to the City. His claim that the LA County Board of Supervisors “were the agents representing Plaintiff” is conclusory. Also, absent reliance, no cause of action for misrepresentation can proceed. SUSTAINED with ten days leave to amend.

Negligence

The elements of a cause of action for negligence are duty, breach, causation and damages. E.g., Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. Under respondeat superior, an employer is vicariously liable for an employee’s torts committed within the scope of employment. Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558.

The demurrer argues plaintiff failed to allege a legal duty owed by Athens. The complaint alleges an unidentified Athens employee breached a general duty of care by striking Roth’s car and failing to leave a note. This provides an adequate basis for Athens’ liability under respondeat superior. OVERRULED.

Breach of Contract

Plaintiff failed to adequately allege a contract to which he is a party or a third-party beneficiary. SUSTAINED with ten days leave to amend.

Caraballo Demurrer

Breach of Covenant of Good Faith and Fair Dealing

The only contract Roth references is between Athens and the City. The complaint does not allege Caraballo was a party, so there is no basis for any contract claim against Caraballo. SUSTAINED without leave to amend.

IIED

The IIED claim against Caraballo is based on the same facts as the IIED claim against Athens and similarly fails because Roth does not allege outrageous conduct or severe emotional distress. SUSTAINED with ten days leave to amend.

Conspiracy/Aiding and Abetting

The complaint does not allege a conspiracy or overt acts done in its pursuit. It does not allege Caraballo was aware of the allegedly wrongful conduct underlying the claim. SUSTAINED with ten days leave to amend.

Misrepresentation

The causes of action for misrepresentation are based on the contract between Athens and Los Angeles. The complaint does not allege Caraballo was a party, so there is no basis for fraud liability. SUSTAINED without leave to amend.

“Specific Claims Against Mariangela Caraballo”

This portion of the complaint lists alleged wrongful acts by Caraballo but does not clarify how the allegations support a specific cause of action. The court disregards it.

Motions to Strike

Punitive Damages

Athens moves to strike the request for punitive damages. Since the demurrer is sustained as to all causes of action except negligence, and the negligence claim does not include allegations of malice, oppression or fraud, punitive damages are stricken. GRANTED.

Attorney’s Fees

Attorney’s fees are only recoverable only when plaintiff alleges a statute or contract allowing their recovery. Cal. Code of Civ. Proc. §1033.5. Roth has not done so. GRANTED.

Prejudgment Interest

Prejudgment interest is only allowable where the amount of damages owed is certain or capable of being made certain. Cal. Civ. Code §3287. Roth’s only surviving cause of action is for negligence arising out of damage to property. Since the monetary value of this claim is not certain, the request for prejudgment interest is improper. GRANTED.

Contract Allegations

Athens moves to strike allegations regarding the contract with the City because plaintiff does not attach the contract or set forth its terms verbatim. A written contract may be pleaded by its legal effect, with plaintiff alleging the substance of its relevant terms. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993. DENIED.

References to Conspiracy

Athens moves to strike references to a conspiracy, which is not a separate tort. Conspiracy is an established doctrine that can impose liability on those who are not immediate tortfeasors. The complaint alleges a conspiracy, though it lacks sufficient particularity to survive demurrer. Since leave to amend has been granted, the court will not require all references to conspiracy stricken at this time. DENIED.

Conclusory allegations

Athens alleges the complaint includes various conclusory “buzzwords,” such as “defamation,” “defame” and “defamatory.” Since the complaint contains no cause of action for defamation, these words are superfluous and will be stricken. GRANTED.

Class Action References

The complaint contains a section describing Roth’s intention to pursue class action claims against Athens. Roth references various other lawsuits, complaints and decisions allegedly involving Athens. None is relevant to Roth’s claims against Athens. GRANTED.

Caraballo Motion to Strike

Caraballo’s motion to strike is largely identical to the Athens motion to strike, and the court’s rulings on the duplicative portions are the same. Caraballo moves to strike the portion of the complaint entitled “specific claims against Mariangela Caraballo.” Although the allegations are not pleaded specifically enough to support any causes of action, they are relevant to Roth’s allegations against Caraballo and will not be stricken. GRANTED in part and DENIED in part.