Judge: Gary I. Micon, Case: 22CHCV00637, Date: 2024-04-24 Tentative Ruling


Case Number: 22CHCV00637    Hearing Date: April 26, 2024    Dept: F43

Dept. F43

Date: 4-26-24

Case #22CHCV00637, Albert Hughes, III, et al. vs. The Northwestern Mutual Life Insurance Company, et al.

Trial Date: N/A

 

DEMURRER TO THIRD AMENDED COMPLAINT

 

MOVING PARTY: Defendants Laura De Leon and FF Properties LP

RESPONDING PARTIES: Plaintiffs Albert Hughes III and Sabrina Crawford

 

RELIEF REQUESTED

Demurrer to the Third Amended Complaint (TAC)

·         1st Cause of Action for Breach of Civ. Code Section 1710.2

·         2nd Cause of Action for Fraud, Deceit, and Misrepresentation

·         3rd Cause of Action for Breach of Contract

·         4th Cause of Action for Intentional Infliction of Emotional Distress

·         5th Cause of Action for Negligence

·         6th Cause of Action for Negligent Hiring, Supervision, or Retention of Employee

·         7th Cause of Action for Breach of Business and Professions Code § 17200

·         8th Cause of Action for Breach of Civ. Code § 1942.4

·         9th Cause of Action for Violation of the Cartwright Act

 

Motion to Strike

·         Paragraph 15, Paragraph 31, Paragraph 42, Paragraph 53, Prayer for Relief (Paragraph 1, Lines 9 to 11; Paragraph 3, Lines 13 to 21; Paragraph 7, Lines 2 to 10; Paragraph 8, Lines 10 to 15; and Paragraph 9, Lines 16 to 21)

 

RULING: Demurrer is sustained without leave to amend for the First, Fourth, Fifth, Sixth, Seventh, and Ninth Causes of Action. Demurrer is sustained in part and overruled in part for Plaintiffs’ Second Cause of Action. Plaintiffs’ Third and Eighth Causes of Action against Defendant FF Properties are ordered dismissed for that party. Motion to strike is granted in part and denied in part.

 

SUMMARY OF ACTION

Plaintiffs Albert Hughes III and Sabrina Crawford (Plaintiffs) were tenants of Terrena Apartments (the property) in Northridge. Defendant Laura De Leon (De Leon) was a leasing agent for the property manager, Defendant FF Properties (Fairfield) (De Leon and Fairfield, collectively the Fairfield Defendants), of the property, and Defendant Northwestern Mutual Life Insurance Company (Northwestern) was and is the owner of the property.

 

After De Leon gave Plaintiffs a tour of Unit 4089 of the property on October 30, 2021, Plaintiffs subsequently learned that a homicide occurred at the property on August 6, 2021, and claim that De Leon should have disclosed this to them. After Plaintiff Hughes sent a letter to the property leasing office advising them that they were required to disclose the death pursuant to Civ. Code § 1710.2, counsel for the property manager responded by informing Hughes that the homicide did not occur in Unit 4089.

 

Plaintiffs also alleges that Northwestern, De Leon, and Fairfield colluded to violate the Cartwright Act by fixing the price of the units for rent, when the rental price of the units should be “much lower than what Defendants colluded to charge Plaintiffs because a death on the property stigmatizes the property and devalues it.” (TAC, ¶ 115.)

 

This Court previously sustained Northwestern’s demurrer to Plaintiffs’ First, Second, Fourth, and Fifth Causes of Action. After being granted leave to file a Third Amended Complaint on February 14, 2024, Plaintiffs switched out Fairfield for Doe #1, added the legal theory of negligence per se to their Fifth Cause of Action, and added the Ninth Cause of Action for Violation of the Cartwright Act.

 

The Fairfield Defendants (De Leon and FF Properties) filed their demurrer with motion strike for Plaintiffs’ Third Amended Complaint (TAC) on February 27, 2024. Plaintiffs filed their opposition on April 15, 2024. The Fairfield Defendants filed their reply on April 18, 2024.

 

The Court also notes that the only exhibit attached to the TAC that is proper is Exhibit F, the lease agreement. The rest of the documents and photos are not authenticated, so the Court will disregard those documents and photos.

 

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

As a preliminary matter, the Fairfield Defendants’ notice of demurrer includes a reference to some causes of action being barred due to late filing. However, it appears that nothing in Plaintiffs’ points and authorities addresses this argument. The Court will not address this argument.

 

First Cause of Action for Breach of Civ. Code Section 1710.2

The Fairfield Defendants demur to Plaintiffs’ Breach of Civ. Code Section 1710.2 cause of action on the basis that it fails to state facts sufficient to constitute a cause of action, is uncertain, and was late-filed.

 

Civil Code Section 1710.2 requires the disclosure of an occupant’s death upon the real property during the prior three years to a transferee who purchases, leases or rents the real property. There is very little case law on this section, and none that have defined “real property.”

 

Previously, in the Minute Order dated August 28, 2023, this Court found that “real property” means the unit that the Plaintiff is actually renting based on the word “occupant” in Section 1710.2. “An occupant assumes a person with the right to possession pursuant to a lease agreement. (Mosser Companies v. San Francisco Rent Stabilization & Arbitration Bd. (2015) 233 Cal.App.4th 505, 512.) “‘Possession’ is a commonly understood term normally referring to physical possession.” (Id. at 513.)” (August 28 Minute Order, p. 4.) The occupant is only occupying the particular unit that they are renting and therefore possessing. They do not occupy the entire property, including common areas. The homicide at the Terrena Apartments occurred in a common area, not in Plaintiffs’ unit.

 

Judge Pfahler, in previously ruling on this issue, used this analogy: “while a homicide in a common area, or analogously a neighborhood of single family homes, may have occurred, the “stigma” from the death associates with the property itself, not the entire apartment complex or neighborhood. In other words, the court finds the material facts relevant to the purchase or lease of a home or apartment applies to the part of the property under control of the purchaser or tenant, rather than boundaries beyond the scope of the leased or purchased premises, even if license or easement to cross the common areas exists.” (August 28 Minute Order, p. 5.) The Court will continue to use this line of reasoning.

 

Additionally, the Fairfield Defendants point out in their demurrer that Civ. Code § 1710.2(a)(3) states that “No cause of action shall arise against an owner or his or her agent or any agent of a transferee for not disclosing facts pursuant to paragraph (1).” Defendants interpret this to mean that there is no right for a private cause of action based on this section of the code. While the section does not immunize the owner if they make an intentional misrepresentation (Civ. Code § 1710.2(d)), it also does not give rise to any cause of action solely based on this section.

 

Furthermore, Plaintiffs’ allegations under the First Cause of Action regarding decreased value of the rental units due to the homicide does not support their contention that Section 1710.2 was violated. Because Plaintiffs have not pled that the homicide happened in their unit, they cannot maintain this cause of action and cannot amend it as they have already had the chance to amend three times. (See CCP § 430.41(e).)

 

The Fairfield Defendants’ demurrer to Plaintiffs’ First Cause of Action is sustained without leave to amend.

 

Second Cause of Action for Fraud, Deceit, Misrepresentation, Concealment

The Fairfield Defendants demur to the Second Cause of Action for fraud, deceit, misrepresentation, concealment on the basis that it fails to state facts sufficient to constitute a cause of action, is uncertain, and was late-filed.

 

The elements for misrepresentation are (1) misrepresentation of a material fact; (2) knowledge of falsity (scienter); (3) intent to deceive and induce reliance; (4) justifiable reliance on the misrepresentation (or concealment); (5) resulting damage (City of Atascadero v. Merrill Lynch (1998) 68 Cal.App.4th 445, 482.) A fraud claim based upon the suppression or concealment of a material fact must involve a defendant who had a legal duty to disclose the fact. (See Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186-1187.)

 

Unlike most causes of action where the policy is “liberal construction of the pleadings,” claims for fraud require particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starky (1990) 220 Cal.App.3d 59, 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The policy of liberally construing pleadings is not invoked for defective fraud claims. (See Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.) The specificity requirement applies to every element of a fraud cause of action. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)

 

Plaintiffs’ cause of action for misrepresentation is related to Defendants’ alleged failure to disclose that there had been a shootout in the hallway outside of a nearby unit. Plaintiffs derive much of the basis for legal duty under this cause of action from their cause of action under Civ. Code § 1710.2. Because the Court sustained the demurrer to that cause of action, then there is no legal duty under which Defendants were required to disclose the shootout.

 

However, Plaintiffs have alleged that De Leon, the leasing agent who allegedly made the false representations, knew that the representations were false. (TAC, ¶ 1.) Plaintiffs also allege that “Defendant Leon knowingly made a false representation to Plaintiffs that the damages to the hallway, window, and neighboring doorway of Unit #4088 were due to rowdy neighbors and partying college students.” (TAC, ¶ 46.) Plaintiffs also allege that De Leon was acting within FF Properties’ authority and that FF Properties knew of and ratified De Leon’s conduct. (TAC, ¶¶ 26, 53.)

 

Based on the foregoing, the Court is only overruling Defendants’ demurrer to Plaintiffs’ Second Cause of Action to the extent that it alleges common law fraud against the Fairfield Defendants. To the extent that it alleges fraud based on Civ. Code § 1710.2, the demurrer is sustained for both Defendants. No further amendments will be allowed, as Plaintiffs have already had the chance to amend three times. (See CCP § 430.41(e).)

 

Third Cause of Action for Breach of Contract

The Fairfield Defendants demur to this cause of action on the basis that it fails to state any cause of action and is uncertain.

 

Plaintiffs agreed in their opposition to dismiss this cause of action against FF Properties due to the contract being between Northwestern and Plaintiffs.

 

Plaintiffs’ Third Cause of Action for Breach of Contract is dismissed as to FF Properties.

 

Fourth Cause of Action for Intentional Infliction of Emotional Distress

The Fairfield Defendants demur to Plaintiffs’ Fourth Cause of Action for IIED on the basis that it fails to state facts sufficient to constitute a cause of action against Defendant, is uncertain, and was late-filed.

 

“‘The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.’ [¶] Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.)

 

A claim for IIED requires Plaintiffs to allege conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)

 

The severe emotional distress that Plaintiffs have alleged include hearing their front door rattle (which they attribute to “unsettled spirits”) (TAC, ¶ 71); learning that a shootout occurred at the apartments (TAC, ¶ 74); and seeing the “bullet hole(s), stained carpets, and other remains of the murderous crime scene on a daily basis” (never mind that the homicide occurred months before they moved in) (TAC, ¶ 75). Plaintiffs also allege that there was a police lockdown that occurred on June 11, 2022, that causes them distress. (TAC, ¶ 77.)

 

None of these events would rise to the level of extreme and outrageous conduct on the part of the Fairfield Defendants. Furthermore, Plaintiffs have presented no allegations that the Fairfield Defendants either intended to cause them distress or acted with reckless disregard of the probability of causing them distress. Plaintiffs have not alleged any specific or affirmative conduct by the Fairfield Defendants that would have caused them severe emotional distress.

 

Plaintiffs have failed to allege sufficient facts to maintain this cause of action, and no further amendments will be allowed, as Plaintiffs have already had the chance to amend three times. (See CCP § 430.41(e).)

 

The Fairfield Defendants’ demurrer to Plaintiffs’ Fourth Cause of Action is sustained without leave to amend.

 

Fifth Cause of Action for Negligence

The Fairfield Defendants demur to Plaintiffs’ Fifth Cause of Action for Negligence on the basis that it fails to state facts sufficient to constitute a cause of action against Defendant, is uncertain, and was late-filed.

 

“The elements of a cause of action for negligence are well established … (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

 

First, the element of duty fails because Plaintiffs have failed to allege that Defendants had any legal duty to disclose the homicide under Civ. Code 1710.2.

 

Alternatively, Plaintiffs have alleged a theory of negligence per se (which was not in their appendix of proposed changes for their motion to file a third amended complaint).

 

The negligence per se doctrine is codified in Evidence Code § 669(a), under which negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596). The burden is on the proponent of a negligence per se instruction to demonstrate that these elements are met. (Id.) Under the doctrine of negligence per se, the plaintiff “borrows” statutes to prove duty of care and standard of care. (David v. Hernandez (2014) 226 Cal.App.4th 578, 584.)

 

Plaintiffs allege that the Fairfield Defendants have violated Civil Code § 1710.2, the Cartwright Act, Business and Profession Code §17200 et seq., Civil Code §1941, Civil Code §1941.1, Civil Code §1942.4, Health & Safety Code §17920.3, and Civil Code §1714.

 

First, the Court already found that Plaintiffs have not alleged facts sufficient to show a violation of Civ. Code § 1710.2. As for the others, Plaintiffs have not alleged any facts under the negligence cause of action demonstrating how the Fairfield Defendants violated those statutes. Also, Civil Code § 1714 is the statute for general negligence and cannot be used as the basis for negligence per se. The Cartwright Act is discussed in further detail below.

 

Plaintiffs have failed to allege facts sufficient to sustain a cause of action for negligence or negligence per se. No further amendments will be allowed, as Plaintiffs have already had the chance to amend three times. (See CCP § 430.41(e).)

 

The Fairfield Defendants’ demurrer to Plaintiffs’ Fifth Cause of Action is sustained without leave to amend.

 

Sixth Cause of Action for Negligent Hiring, Supervision or Retention of Employee

Defendants demur to this cause of action on the basis that it fails to state a cause of action and is uncertain.

 

To plead this cause of action, Plaintiffs must state facts that, if true, establish: (1) Defendant FF Properties hired Defendant De Leon; (2) Defendant De Leon was unfit or incompetent to perform the work for which she was hired; (3) Defendant FF Properties knew or should have known of such unfitness or incompetence and that it created a particular risk to others; (4) Defendant De Leon’s unfitness or incompetence harmed Plaintiff; and (5) such negligence was a substantial factor in causing Plaintiffs’ alleged harm. (CACI 426.)

 

As discussed above, Plaintiffs have failed to allege that Defendant De Leon did anything negligent or otherwise engaged in harmful conduct. Defendants did not have a duty to disclose the homicide because it did not occur in Plaintiffs’ unit. Plaintiffs have failed to alleged facts sufficient to sustain a cause of action for negligent hiring, supervision or retention of employee.

 

The Fairfield Defendants’ demurrer to Plaintiffs’ Sixth Cause of Action is sustained without leave to amend.

 

Seventh Cause of Action for Breach of Business and Professions Code § 17200

Defendants demur to this cause of action on the basis that it fails to state a cause of action and is uncertain.

 

To bring a cause of action under the UCL, a plaintiff requires standing to sue. In Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 135 the Court of Appeal sustained a demurrer to the plaintiff’s UCL claim premised on a breach of contract claim, holding “where a UCL action is based on contracts not involving either the public in general or individual consumers who are parties to the contracts, a corporate plaintiff may not rely on the UCL for the relief it seeks.” However, the Defendants reliance on this case appears to be flawed because it states that individual consumers may maintain a UCL action, just not corporate plaintiffs.

 

That being said, Plaintiffs have failed to state a UCL claim. A “violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.” (Beyman v. Mt Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) “In effect, the UCL borrows violations of other laws... and makes those unlawful practices actionable under the UCL.” (Laar v. HerCorp. (1999) 69 Cal.App.4th 1494, 1505.) The Court has sustained Defendants’ demurrer to each of Plaintiffs’ attempts to allege that Defendants acted unlawfully. Because Plaintiffs have been unable to allege that Defendants acted unlawfully, Plaintiffs cannot maintain a cause of action under the UCL.

 

Plaintiffs have also failed to satisfy the unfairness prong of the UCL as they have not alleged how Defendants acted unfairly. Therefore, Plaintiffs have failed to allege facts sufficient to maintain a cause of action under the UCL.

 

Plaintiffs point out in their opposition that the Court previously overruled Northwestern’s demurrer to this cause of action. However, the Court did so on the basis that Plaintiffs rely on other statutory sections other than Civ. Code § 1710.2 for this cause of action against Northwestern. The same does not apply to the Fairfield Defendants. Plaintiffs cannot rely on any statutory provisions to maintain this cause of action against the Fairfield Defendants

 

The Fairfield Defendants’ demurrer to Plaintiffs’ Seventh Cause of Action is sustained without leave to amend for Defendants De Leon and FF Properties.

 

Eighth Cause of Action for Breach of Civ. Code § 1942.4

Defendants demur to this cause of action on the basis that it fails to state a cause of action and is uncertain.

 

Plaintiffs have agreed in their opposition to dismiss this cause of action because they only entered into a contract with Northwestern.

 

Plaintiffs’ Eighth Cause of Action is dismissed for Defendant FF Properties.

 

Ninth Cause of Action for Violation of the Cartwright Act

Defendants demur to Plaintiffs’ Ninth Cause of Action for Violation of the Cartwright Act on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants and is uncertain.

 

The Cartwright Act prohibits all combinations created for or carrying out unreasonable restrictions in trade or commerce. (Marsh v. Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 492–493.) Historically, some combinations, such as agreements to fix prices, divide markets, or tie the purchase of one product or service to another, as well as certain boycotts, have been considered unreasonable per se and, therefore, illegal. (Oakland-Alameda County Builders’ Exchange v. F. P. Lathrop Constr. Co. (1971) 4 Cal.3d 354, 361; Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 930–931.) The elements of a Cartwright Act claim are the formation and operation of a combination or conspiracy in restraint of trade; wrongful acts done in furtherance of the combination; and resulting damage. (Marsh, 200 Cal.App.4th at 493.) California requires a ‘high degree of particularity’ in the pleading of Cartwright Act violations, and therefore generalized allegations of antitrust violations are usually insufficient. (Id. at 671.) The absence of factual allegations of specific conduct in furtherance of the conspiracy to eliminate or reduce competition makes the complaint legally insufficient. (Id.)

 

Plaintiffs allege that Northwestern, Fairfield, and De Leon colluded to violate the Cartwright Act by creating “a trust to increase the price of the value of Plaintiffs’ unit and other units.” (TAC, ¶ 115.) Plaintiffs further allege that true value of the rental unit is much lower due to the death at the apartment complex. (Id.) Plaintiffs also allege that Defendants somehow had an antitrust violation, though Plaintiffs do not explain this violation, or what the trust was that Defendants allegedly created. (TAC, ¶ 116.)

 

A Cartwright Act violation can only be found where a group of competitors with separate and independent economic interests, or a single competitor with sufficient leverage, force a boycott of a competitor at the same level. This is referred to as a “group boycott”. (Freeman v. San Diego Assn of Realtors (1999) 77 Cal.App.4th 171.) In addition, to establish unlawful price fixing, Plaintiffs must allege specific facts that separate entities conspired together. (Id. at 188). Under the Cartwright Act, an agreement or conspiracy to violate the antitrust laws must be among actors with separate economic interests. (Cal. Bus. & Prof. Code § 16700 et seq.)

 

Here Plaintiffs have not alleged that any competitors or separate entities conspired together. Plaintiffs have not alleged that there were any actors with separate economic interests. Nor have Plaintiffs alleged that any kind of group boycott occurred.

 

Furthermore, under antitrust principles, parties cannot conspire if they are part of a common enterprise. (Williams v. I.B. Fischer Nevada (9th Cir.1993) 999 F.2d 445, 447.) Parties with closely intertwined economic interests and purposes represent a “unified economic consciousness incapable of conspiring with itself.” (Freeman, 77 Cal.App.4th at 191 (internal citations omitted).) Northwestern owned the Terrena Apartments, Fairfield managed the apartments, and De Leon was the employee of Fairfield. They were all part of a common enterprise and therefore cannot have conspired or violated the Cartwright Act.

 

Plaintiffs have failed to allege facts sufficient to maintain a cause of action under the Cartwright Act. Plaintiffs also could not amend their complaint to allege a cause of action under that Act.

 

The Fairfield Defendants’ demurrer to Plaintiffs’ Ninth Cause of Action is sustained without leave to amend.

 

Motion to Strike

This Court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” 

 

Additionally, CCP § 431.10 provides that an “irrelevant matter,” as used in CCP § 436, can be an “immaterial allegation.” An “immaterial allegation” is: (1) an allegation that is not essential to the statement of the claim or defense; (2) an allegation that is neither pertinent to, or supported by, an otherwise sufficient claim or defense; or (3) a demand for judgment or requesting relief not supported by the allegations of the complaint or cross-complaint. (CCP §431.10(b)(1)-(3).) It is well-settled in California that the proper procedure to test the adequacy of punitive damage allegations is a motion to strike. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.)

 

Punitive damages are governed by Civ. Code § 3294: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294(a).)

 

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in Civ. Code § 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id. at 725.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) Fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294(c)(3).)

 

“Despicable conduct,” as the term applies to punitive damages, has further been described as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers’ Insurance Co. (1992) 4 Cal.App.4th 306.) In Tomaselli v. Transamerica Ins. (1994) 25 Cal.App.4th 1269, 1287, the court stated that despicable conduct “has been described as ‘[having] the character of outrage frequently associated with crime.’”

 

The Fairfield Defendants argue that Plaintiffs’ TAC does not state facts sufficient to support an award for punitive damages.

 

The Court found Plaintiffs’ fraud cause of action to be sufficient for a cause of action for common law fraud. Plaintiffs have not alleged facts sufficient to show malice or oppression, but Plaintiffs can maintain a request for punitive damages for the cause of action for fraud. Punitive damages are unavailable for ordinary negligence. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211.) There are also no punitive damages for Civ. Code § 1710.2. The allegations related to Plaintiffs’ request for punitive damages are allowable for Plaintiffs’ cause of action for fraud only. Plaintiffs may maintain their request for punitive damages for the fraud cause of action.

 

Plaintiffs have also requested attorney fees, but Plaintiffs are representing themselves. Plaintiff Albert Hughes III may be an attorney, but the California Supreme Court has held that an attorney litigant representing himself in pro per could not recover attorney fees under Civ. Code § 1717. (See Trope v. Katz (1995) 11 Cal.4th 274.) Plaintiffs’ request for attorney fees under Civ. Code § 1717 is ordered stricken from the complaint.

 

Plaintiffs have also requested attorney fees pursuant to CCP § 1021.5, which allows a party to recover attorney fees when a lawsuit enforces an important right affecting the public interest. Under one condition of Section 1021.5, a private attorney general award is appropriate “when the cost of the claimant’s legal victory transcends his or her personal interest.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941; Schwartz v. City of Rosemead et al. (1984) 155 Cal.App.3d 547, 558.)

 

In this case, it is primarily Plaintiffs’ personal interest that is at stake. No one else would likely benefit should Plaintiffs win this case. There is no burden on Plaintiffs that is out of proportion to their individual stake in this matter. (See Beach Colony II Limited v. Cal. Coastal Commission (1985) 166 Cal.App.3d 106, 113.) Plaintiffs seek relief for their own benefit and economic self-interest. This request is stricken.

 

Plaintiffs also pray for attorney’s fees pursuant to Business and Professions Code § 17200 et seq. on the ground that the validity of an underlying contract is being challenged. However, Plaintiffs did not allege any facts relating to the validity of the underlying contract. Furthermore, attorney fees are not recoverable in Section 17200 actions. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 179.)

 

Next, the Fairfield Defendants move to strike Plaintiffs’ request for treble damages in Paragraph 29 of the TAC on the basis that Plaintiffs have not cited any case law or statutes supporting the request. Plaintiffs requested treble damages for Northwestern’s retention of the security deposit. The TAC did not otherwise allege any facts related to retention of the security deposit. The Court will strike this request because Plaintiffs have not provided any basis for the treble damages.

 

Additionally, because the Court sustained the Fairfield Defendants’ demurrer to Plaintiffs’ UCL and Cartwright Act causes of action, Paragraphs 7-9 of Plaintiffs’ prayer for relief, which are related to injunction relief for these causes of action, should be stricken.

 

The Fairfield Defendants’ motion to strike is granted in part and denied for Plaintiffs’ request for punitive damages related to their fraud cause of action.

 

Conclusion

The Fairfield Defendants’ demurrer is sustained without leave to amend for Plaintiffs’ First, Fourth, Fifth, Sixth, Seventh, and Ninth Causes of Action.

 

Defendants’ demurrer to Plaintiffs’ Second Cause of Action is sustained in part and overruled in part.

 

Plaintiffs’ Third and Eighth Causes of Action are ordered dismissed as to Defendant FF Properties.

 

The Fairfield Defendants’ motion to strike is granted in part and denied for Plaintiffs’ request for punitive damages related to their fraud cause of action.

 

Moving party to give notice.