Judge: Gail Killefer, Case: 23STCV20819, Date: 2024-02-29 Tentative Ruling
Case Number: 23STCV20819 Hearing Date: February 29, 2024 Dept: 37
HEARING DATE: Thursday, February 29, 2024
CASE NUMBER: 23STCV20819
CASE NAME: Maria Elena Ortiz v. Cristina Chavez
MOVING PARTY: Defendant Cristina Chavez
OPPOSING PARTY: Plaintiff Maria Elena Chavez
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer to FAC
OPPOSITION: 1 February 2024
REPLY: 26
February 2024
TENTATIVE: Defendant’s demurrer is sustained with leave
to amend as to the third cause of action for fraud and otherwise overruled. Plaintiff
is granted 10 days leave to amend. A Non-Appearance OSC Re: Amended Complaint
is set for March 27, 2024, at 8:30 a.m. The Case Management Conference is
continued to May 10, 2024, at 8:30 a.m. Defendant to give notice.
Background
On August 29, 2023, Maria Elena Ortiz
(“Plaintiff”) filed a Complaint against Cristina Chavez (“Defendant”) and Does
1 to 10. The operative First Amended Complaint (“FAC”) alleges four causes of
action for (1) breach of written contract, (2) breach of implied warranty of
habitability/ sustainability, (3) fraud, and (4) contribution.
The Defendant now demurs to the FAC. Plaintiff
opposes the Motion. The matter is now before the court.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In
evaluating a demurrer, the court accepts the complainant’s properly pled facts
as true and ignores contentions, deductions, and conclusory statements. (Daar
v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971)
5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff
will be able to prove the allegations or the possible difficulty in making such
proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 604.)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Ibid.)
II. Demurrer[1]
A. Demurrer Based on Misjoinder of Parties
Defendant
demurs to the FAC on the basis that the prior tenants are an indispensable
party under CCP § 389 and the FAC fails to state why the prior tenants who sold
the lease to Plaintiff are not joined in this action.
The
FAC alleges that on or about August 15, 2018, the commercial real property
located at 14345 S. Pioneer Blvd, Norwalk CA (the “Premises”), was leased by
Defendant to the previous tenants Gloria Leyva and Juan Cervantes for a term of
10 years with a 5-year option. (FAC ¶¶ 2, 5, Ex. A.) On or about December 20,
2019, the previous tenants assigned all their rights, title interest and
options to Plaintiff with Defendant’s consent. (FAC ¶ 6, Ex. B.) Plaintiff
invested an excess of $350,000.00 to purchase a business, including its liquor
license, which has now been shut down and is at risk of being lost due to code
violation present at the Premises. (FAC ¶¶ 7, 10.)
CCP
§ 389 states in relevant part:
(a)
A person who is subject to service of process and whose joinder will not
deprive the court of jurisdiction over the subject matter of the action shall
be joined as a party in the action if (1) in his absence complete relief cannot
be accorded among those already parties or (2) he claims an interest relating
to the subject of the action and is so situated that the disposition of the
action in his absence may (i) as a practical matter impair or impede his
ability to protect that interest or (ii) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest. If he has
not been so joined, the court shall order that he be made a party.
“The first clause of section 389, subdivision (a), the ‘complete
relief’ clause, focuses not on whether complete relief can be afforded all
possible parties to the action, but on whether complete relief can be afforded
the parties named in the action.” (Arabia
v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 481.) “The second clause of
subdivision (a) of section 389 is concerned with protecting the entity whose
joinder is in question.” (Ibid.) “The third clause of section 389,
subdivision (a) focuses on the possibility that a party would be subject to
‘double ... or otherwise inconsistent’ liability because of the absence of
another party.” (Id. at 482.)
The court is satisfied that complete relief can
be afforded to the parties in this action because Plaintiff’s claims relate to
her assumption of the Lease and Defendant’s representations and omissions made
regarding the condition of the Premises at the time she assumed the Lease, not to
any representations or omissions made by the previous tenants. Accordingly,
complete relief can be obtained by the parties already joined in this action.
If Defendant seeks to hold the previous tenants liable for
contribution, Defendant must file a cross-complaint. Otherwise, the acts and
omissions of the previous tenants are not at issue in this action. Moreover, as the previous tenants are not a
party in this action, their interests are not at issue in this action. Finally,
Defendant fails to show that there is a risk of inconsistent liability if the
previous tenants are not joined in this action.
Accordingly, the demurrer based on misjoinder
of parties is overruled.
B. Third Cause of Action – Fraud
“In California, fraud
must be pled specifically; general and conclusory allegations do not
suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,
645.) “The elements of fraud, which give rise to the tort action for deceit,
are (a) misrepresentation (false representation, concealment, or
nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to
defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.” (Id. at p. 638.) Specificity “necessitates pleading facts which
show how, when, where, to whom, and by what means the representations were
tendered.” (Id. at p. 631.)
The FAC alleges that
despite having an implied contractual duty to correct the violations noted on
the March 10, 2023, Notice of Violation and Order to Abate public nuisance,
Defendant did not correct any of the listed violations. (FAC ¶¶ 21, 22, Ex. C.)
Plaintiff alleges that the violations in the Notice of Violation predate the
Plaintiff’s assumption of the lease and through no fault of Plaintiff,
Plaintiff was ordered to pay the fines and fees and discontinue business at the
Premises. (FAC ¶¶ 24, 24.) “During the assignment of the Lease to Plaintiff,
Defendant did not mention nor disclose any of the code violations present at
the Premise. (FAC ¶ 20.)
Plaintiff fails to
allege that Defendant had prior knowledge of the code violations listed in the
March 10, 2023, Notice. Plaintiff alleges that the lease was signed on or about
December 20, 2019, but fails to allege that at the time she assumed the Lease,
the code violations were already present at the Premises and that Defendants
had knowledge of the existence of the code violations, prior to the March 10,
2023, Notice. There are also no allegations of the intent to defraud, as the
FAC alleges that both Plaintiff and Defendant received Notice of the Violation
and Order to Abate, on the same date, on or about March 10, 2023, long after
Plaintiff had assumed the Lease. (FAC ¶ 21.) There are also no facts to show
that Defendant concealed the Code Violations from Plaintiff prior to Plaintiff
assuming the Lease or that Plaintiff could not become aware of the code
violations through diligence due to Defendant’s concealment efforts. Lastly,
there are no facts to show that Plaintiff’s reliance was induced, as there are
no facts alleging that the code violations were hidden prior to Plaintiff
assuming the Lease on or about December 20, 2019. (FAC ¶ 6.)
Accordingly, the fraud cause of action is
sustained with leave to amend.
The court declines to rule whether
Plaintiff’s reference to attorney’s fees should be stricken as the Defendant
failed to file a motion to strike.
Conclusion
Defendant’s demurrer is sustained
with leave to amend as to the third cause of action for fraud and otherwise
overruled. Plaintiff is granted 10 days leave to amend. A Non-Appearance OSC Re:
Amended Complaint is set for March 27, 2024, at 8:30 a.m. The Case Management
Conference is continued to May 10, 2024, at 8:30 a.m. Defendant to give notice.