Judge Elaine W. Mandel, Case Number: 24SMCV02410, Date: 2025-02-25 Tentative Ruling

Judge: Elaine W. Mandel, Case: 24SMCV02410, Date: 2025-02-25 Tentative Ruling

Case Number: 24SMCV02410 Hearing Date: February 25, 2025 Dept: P

Tentative Ruling

Boulangeries de Paris v. Hakim, Case no. 24SMCV02410

Hearing date February 25, 2025

Plaintiff/Cross-Defendant’s Demurrer to the First Amended Cross-Complaint

Plaintiff Boulangeries de Paris, LLC sues defendants Sam Hakim and 139 Beverly, LLC for breach of written contract, nuisance and declaratory relief. Plaintiff lessee of commercial property alleges defendants breached the rental agreement by placing “for rent” signs on the property, destroying plaintiff’s foodstuffs by moving A/C units and inviting leasing agents onto the premises during business hours. Defendants’ first amended cross-complaint alleges breach of contract, unjust enrichment and negligence arising from plaintiff’s alleged failure to pay common-area maintenance (“CAM”) charges. Plaintiff demurs, moves to strike allegations and requests judicial notice.

Defendants filed untimely oppositions on 2/15/25, a holiday weekend. As such, they are considered served and filed the date plaintiff’s reply was due, 2/18/25. Defendants offer no explanation for their tardy filings. As plaintiff nevertheless filed a substantive reply, the court considers the oppositions.

Plaintiff requests judicial notice of the Property Profile, Grant Deed, and Deed of Trust recorded with the Los Angeles County Recorder. Judicial notice is proper. Cal. Evid. Code §452(c), (h). GRANTED.

Plaintiff’s Demurrer to the FACC

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts,” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Plaintiff argues the FACC fails to identify a claimant for each claim asserted. Each cause of action must identify against whom it is asserted. CRC 2.112. The FACC alleges each claim is asserted by “cross-complainants” generally. See FACC. Plaintiff argues this is insufficient, as Hakim is not an owner of the property, so cannot assert all claims alleged. See RJN exhs. 1-3. The FACC alleges defendants “were or are assigned signatories of the at-issue lease.” FACC para. 8. This is insufficient; whether Hakim is alleged to be a previous or current signatory is a material allegation that must be clarified. If Hakim is not alleged to be a current signatory or owner, the FACC fails to state a claim for relief as against him.

Plaintiff argues the FACC fails to state a claim for breach of the implied covenant of good faith and fair dealing. The allegations in the claim for breach of the implied covenant are duplicative of those in the breach of contract claim. This is insufficient; if allegations do not go beyond statement of a mere breach of contract, no additional claim is stated. See Careau & Co. v. Security Pacific (1990) 222 Cal. App. 3d. 1371, 1393. SUSTAINED with leave to amend.

Plaintiff argues the third claim for unjust enrichment fails because defendants have adequate legal remedies. Indeed, there is no independent cause of action for unjust enrichment. See Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448. SUSTAINED without leave to amend.

The FACC describes intentional and negligent interference with prospective economic advantage as one claim. FACC para 26; 11:11-12. Code Civ. Proc. and case law do not authorize the filing of one claim for both intentional and negligent interference with prospective economic advantage. They are different claims. A pleading purporting to state two "causes of action" involving the same primary right contravenes the rule against "splitting" a cause of action. Hamilton v. Asbestos Corp., Ltd. (2000) 22 C4th 1127, 1140. There are different elements for each interference cause of action. Venhaus v. Shultz (2007) 155 Cal. App. 4th 1072, 1077. The claim is uncertain. SUSTAINED with leave to amend.

Plaintiff argues the claim for negligence is barred by the economic loss rule. "The Restatement states this form of the economic loss rule thusly: 'there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.’" M & L Fin., Inc. v. Sotheby's, Inc. (2022) 81 Cal. App. 5th 173, 179. The FACC alleges plaintiff was negligent in failing to pay the CAM charges at issue. FACC paras. 15, 32. These facts are duplicative of allegations in the breach of contract claim. This is insufficient; failure to pay monies due on a contract cannot be the basis for a conversion or negligence claim. SUSTAINED with leave to amend.

Plaintiff’s MTS

A motion to strike applies either to strike any "irrelevant, false or improper matter inserted in any pleading" or to strike any pleading or part thereof "not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." Cal. Code Civ. Proc. §436. A motion to strike can also be used as a scalpel to cut out any "irrelevant, false or improper" matters. §436(a). This includes allegations not essential to the claim or defense, allegations "neither pertinent to nor supported by an otherwise sufficient claim or defense," or a demand for judgment "requesting relief not supported by the allegations of the complaint or cross-complaint." §431.l0(b).

Plaintiff seeks to strike: (1) page 6-7, para. 15, lines 22-4; (2) page 8, para. 20, lines 9-27; (3) pages 12-13, para. 32, lines 10-5; (4) page 11, para. 26 in its entirety; (5) page 11, para. 28, line 17; and (6) page 13, para. 35, lines 21-22.

Plaintiff argues these allegations include non-economic damages, which are barred in a breach of contract action. See Di Loreto v. Shumake (1995) 38 Cal. App. 4th 35, 38-39. Plaintiff argues the remaining allegations identified are irrelevant to the claims for breach of contract, breach of implied covenant and negligence. Defendants alleged plaintiff’s failure to pay relates to CAM charges; the identified allegations are duplicative and irrelevant.

Defendants’ tardy opposition to the MTS is duplicative of defendants’ opposition to the demurrer and is unintelligible as an opposition to the MTS. Defendants fail to rebut plaintiff's arguments and in at least one instance misquote the law. See MTS Opp. 2:13-14. It is not the case that “as with demurrers, motions to strike are disfavored.” Id. GRANTED.