Judge: Frank M. Tavelman, Case: 24BBCV00444, Date: 2024-10-04 Tentative Ruling

Case Number: 24BBCV00444    Hearing Date: October 4, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Liza Abbot (Plaintiff) brings this action against N.K. Studio City, Lauren Miller (Miller), and Peter Verdell (Verdell). Plaintiff alleges that she was attacked by a dog owned by Verdell, who is Miller’s boyfriend. The attack is alleged to have occurred at 11170 Aqua Vista St., Studio City, California 91602 (the Subject Premises), a residential property owned and operated by N.K. Studio City. At the time of the incident, both Plaintiff and Miller were tenants at the Subject Premises.

Before the Court is a demurrer brought by Miller. Miller demurs to Plaintiff’s causes of action for Breach of Contract - Third Party Beneficiary and Negligence on grounds that Plaintiff fails to allege sufficient facts. Plaintiff opposes the demurrer and Miller replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Meet and Confer

C.C.P. § 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Clark Decl. ¶¶ 2-4.)

Facts

On July 29, 2023, Plaintiff was bitten by a dog at the Subject Premises. (Compl. ¶ 9.) The dog was owned by Verdell. (Comp. ¶ 10.) Plaintiff alleges that the dog that bit her was not allowed on the premises due to restrictions in the Lease Agreement. (Compl. ¶ 13.)

Second COA – Breach of Contract Third Party Beneficiary – Sustained with Leave To Amend

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, Plaintiff alleges that Miller is in breach of the contract N.K. Studio City; however, the only reference Plaintiff makes is to Plaintiff’s own lease with no reference to Miller’s relationship. The contract as pled is Plaintiff’s Lease Agreement with N.K. Studio City, attached to the Complaint as Exhibit 1. A review of the contract shows that Miller is nowhere mentioned, and Miller is not a signatory to Plaintiff’s Lease Agreement. Plaintiff does not dispute this.

Instead, Plaintiff argues that the contract can be enforced against Miller because she is a third-party beneficiary to Plaintiff’s Lease Agreement.  If Miller was a third-party beneficiary, that does not necessarily mean that Miller faces liability to a contract Miller never signed.  Nor are there sufficient facts to show that Miller was expressly intended to be a third-party beneficiary.  From reading the parties arguments, it appear that Plaintiff may not have properly pled this cause of action leading to an ambiguity to which Miller relies upon to support the demurrer.  Plaintiff reasons that because the Lease Agreement (which was defined in the complaint as the agreement between Plaintiff and he landlord) prohibits pets without the prior written consent of the landlord, the provision necessarily contemplates the safety of other tenants. The Court finds this argument unpersuasive for a variety of reasons.

Civil Code § 1559 provides “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” As evident from the plain language of the statute, Civil Code § 1559 only permits the enforcement of a such a contract by the third party to be benefitted. The statute states the third-party beneficiary to be benefitted must be expressly part of the contract.  However, there are insufficient facts to support a claim that other tenants were intended third party beneficiaries to Plaintiff’s own lease.

If the Plaintiff intended to argue that Plaintiff is the third-party beneficiary to Miller’s rental agreement, the Plaintiff does not effectively do so.  If that were the intent, the cause of action still is subject to a successful demurrer.  In an effort to be efficient, the Court will address that issue.  Plaintiff may be arguing that because N.K. Studio’s Lease Agreements contain a provision which prohibits pets without prior written consent, Plaintiff is a beneficiary of any Lease Agreement which Miller supposedly signed. The Court finds this argument unpersuasive.

To begin, Miller’s Lease Agreement is not before the Court. Miller’s Lease Agreement is not attached to the pleadings, nor has it been judicially noticed. If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Here, Plaintiff attaches only her own Lease Agreement with N.K. Studio City to the Complaint. (Compl. Exh. 1.) Plaintiff assumes that Miller’s Lease Agreement is identical to hers, but such assumptions do not constitute sufficient facts to state a cause of action for breach of contract.

Even if Plaintiff’s cause of action were proper under Civil Code §1559, her arguments regarding the pet prohibition are misplaced. the Court finds the language of the pet prohibition provision does not specifically contemplate a benefit to Plaintiff. 

To plead a proper claim for breach of contract by third party beneficiary a plaintiff must allege the following in order:

(1) whether the third party would in fact benefit from the contract, but also

(2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and

(3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties."

(Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830; see also Kalmanovitz v. Bitting (1996) 43 Cal.App.4th 311, 314 ["While it is not necessary that a third party be specifically named, the contracting parties must clearly manifest their intent to benefit the third party"].)

Here, the Lease Agreement is clearly a contract between N.K. Studio City and Plaintiff. (Compl. Exh. 1.) The provision which states that pets are not allowed on the Subject Premises without prior written consent of N.K. Studio is located in section eight of the Lease Agreement.

Without the Owner/Agent’s prior written permission as an addendum to this Agreement, no pets, no waterbeds, charcoal burners or other open-flame cooking devices, or liquefied petroleum gas fueled cooking devices (“grills”) or waterbeds and water filled furniture shall be kept or allowed in or about the said premises.

(Compl. Exh. 1.)

Nothing in the language of this provision specifically contemplates the benefit of other tenants. There is no “manifestation of intent” to benefit a third party in the Lease Agreement. Plaintiff’s interpretation of this provision as being intended to protect other tenants is just that, her interpretation.  That the prohibition of unauthorized pets could benefit the safety of other tenants does not mean N.K. Studio City and Miller intended it to do so. It appears just as, if not more, likely that the provision was intended to shield N.K. Studio city from liability or to prevent unwanted property damage. The law is clear that Plaintiff must plead specific language contemplating the benefit of a third party, language which is simply absent from the Lease Agreement.

Lastly, the lone case upon which Plaintiff relies in opposition, Spinks v. Equity Residential Briarwood Apartments, is irrelevant to the resolution of this demurrer. The plaintiff in Spinks sought to enforce a Lease Agreement her former employer made with a property management company. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1018.) The plaintiff resided on the property after the termination of her employment which explicitly granted her the dwelling as compensation. (Id. at 1036.) The court in Spinks was tasked with determining whether the plaintiff was an intended third party beneficiary to the Lease Agreement between her former employer and the property management company. (Id. at 1022-1023.)

Contrary to Plaintiff’s representation, nothing in Spinks concerns tenant safety. The facts of Spinks are entirely inapposite to this case. Further, Spinks concerned an attempt by a third party beneficiary to enforce a contract, whereas this case presents the opposite. In short, the holding of Spinks is unhelpful to Plaintiff’s argument.  

Accordingly, the demurrer to the first cause of action is SUSTAINED with leave to amend. The Court does not see how additional factual allegations would allow Plaintiff to state this claim under Civil Code § 1559.

Third COA – Negligence – Sustained Without Leave to Amend

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Defendant first argues that Plaintiff has failed to plead any duty which Miller owed her. The Court finds this argument persuasive.

As a general rule, a defendant owes a duty of care to all persons who are foreseeably endangered by defendant’s conduct, with respect to all risks which make the conduct unreasonably dangerous. (Tarasoff v. Regents of University of California (1976), 17 Cal.3d. 425, 434-4345.) However, it is also well established that there is no duty to act to protect others from the conduct of third parties. (Id. at 435.)

Plaintiff’s Complaint alleges only that Verdell was present at the time of the incident. (Compl. ¶ 11.) While Plaintiff alleges that Miller was aware of the dog’s vicious temperament, she does not allege any facts as to Miller’s knowledge that the dog was present at the subject premises at the time of the incident. (Compl. ¶ 38.) Allegations that Miller knew the dog to be vicious are not the same as allegations that Miller knew the dog was at the subject premises at the time of the incident. As it stands, the Complaint only alleges facts as to actions taken by Verdell. As Plaintiff fails to allege any conduct by Miller, it cannot be said that her conduct created a foreseeable harm required to trigger her general duty of care. Nor has Plaintiff pled any special relationship between which would otherwise establish a duty between herself and Miller (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.)

To the extent that Plaintiff believes Miller had a duty to take proactive measures to prevent the incident, the law is clear that such a duty must be established by the existence of a special relationship. (See Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 [holding that liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.].)

In short, Plaintiff has pled no actions of Miller which would trigger the general duty of care. As a duty of care is a prerequisite to maintaining a negligence cause of action, Plaintiff’s pleadings are insufficient. The Court finds that this deficiency could possibly be cured upon demurrer should Plaintiff add allegations speaking to Miller’s specific actions.

Accordingly, the demurrer to the second cause of action is SUSTAINED with leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Lauren Miller’s Demurrer came on regularly for hearing on October 4, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE SECOND AND THIRD CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

DEFENANT MILLER TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  October 4, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles