Judge: Gary I. Micon, Case: 24CHCV04131, Date: 2025-04-07 Tentative Ruling
Case Number: 24CHCV04131 Hearing Date: April 7, 2025 Dept: F43
Dept. F43
Date: 04-07-25
Case # 24CHCV04131, Allee Investments,
L.P. v. Mark Taheri DDS, Inc.
Trial Date: None set.
DEMURRER AND MOTION
TO STRIKE THE CROSS-COMPLAINT
MOVING PARTY: Cross-Defendant/Plaintiff Allee
Investments, L.P.
RESPONDING PARTY: Cross-Complainant/Defendant
Mark Taheri DDS, Inc.
RELIEF REQUESTED
Order sustaining demurrer to the
cross-complaint and striking entire cross-complaint or statutory damages from
the cross-complaint.
RULING: Demurrer
to the First Cause of Action is overruled, and demurrer to the Second Cause of
Action is sustained with leave to amend. Motion to strike the entire
cross-complaint and statutory damages is granted with leave to amend.
SUMMARY OF ACTION
This action arises from an alleged breach of
a lease. Cross-Defendant/Plaintiff Allee
Investments, L.P. (Plaintiff) and cross-complainant/defendant Mark Taheri DDS,
Inc. (Defendant) entered into a written lease on December 26, 2023 under which
Defendant agreed to rent from Plaintiff a part of a building located in Santa
Clarita, CA. Defendant stopped paying
rent in August 2024. Plaintiff alleges
that Defendant owes unpaid rent, late charges, Defendant’s share of operating
expenses, and commissions and tenant improvements. Defendant refuses to pay these charges.
On November 12, 2024, Plaintiff filed a
complaint against Defendant alleging breach of written contract, open book
account, and account stated.
On January 21, 2025, Defendant filed a
cross-complaint against Plaintiff alleging breach of written contract and
negligence. Defendant alleges that under
the lease, Plaintiff agreed to provide Defendant with improvements within
thirty (30) days from commencement of the lease. (XC, ¶ 5.)
Plaintiff did not perform the improvements even though Defendant gave
Plaintiff gave Defendant notice of the issues to improve. (XC, ¶ 6(a)-(g).) Defendant also alleges that Plaintiff failed
to repair several issues in the common areas of the building. (XC, ¶ 8(a)-(i).)
Plaintiff demurs to the cross-complaint for
failure to state facts sufficient to constitute causes of action and moved to
strike the entire cross-complaint or statutory damages under California Bus.
& Prof. Code section 17200. No
opposition has been filed.
MEET AND CONFER
Before filing a demurrer or motion to strike,
the parties must meet and confer “in person, by telephone, or by video
conference.” (Code Civ. Proc., §§ 430.41, subd. (a), 435.5, subd. (a).) The
moving party must file and serve a meet and confer declaration stating either:
(1) the means by which the parties met and conferred, that the parties did not
reach an agreement resolving the issues raised in the demurrer or motion to
strike; or (2) that the party who filed the pleading subject to the demurrer or
motion to strike failed to respond to the meet and confer request or failed to
meet and confer in good faith. (Code
Civ. Proc., §§ 430.41, subd. (a)(3), 435.5, subd. (a)(3). Plaintiff’s counsel emailed Defendant and
Defendant’s counsel a meet and confer letter on January 22, 2025, and counsel
subsequently met and conferred telephonically.
(Declaration of Joel T. Shackelford, Esq., ¶ 2.) The parties did not come to an
agreement. (Ibid.)
SUMMARY OF ARGUMENTS
Plaintiff contends that Defendant’s breach of
written contract claim fails because Defendant does not plead all obligations,
conditions, and representations under the lease or attach a copy of the lease
the cross-complaint. The negligence
cause of action fails because Defendant bases the cause of action on the same
allegations as the breach of contract claim and fails to plead that Plaintiff
owed Defendant an independent duty outside Plaintiff’s duties under the lease. Defendant also fails to plead the other
elements of negligence. Plaintiff also
moves for striking the entire cross-complaint because neither Defendant nor its
counsel has signed the cross-complaint or proof of service. Additionally, the cross-complaint does not
state a claim for Bus. & Prof. code section 17200 and there are no factual
allegations of any unfair, or improper, competition or business practices.
Defendant does not oppose.
ANALYSIS
Demurrer
A party may respond to a pleading against it by demurrer
on the basis of any single or combination of eight enumerated grounds,
including that “the pleading does not state facts sufficient to constitute a
cause of action” and is uncertain, meaning “ambiguous and unintelligible.”
(Code Civ. Proc., § 430.10, subds. (e) and (f)). The grounds for demurring must
be apparent from either the face of the complaint or a matter of which the
court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (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.” (Code Civ.
Proc., § 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.)
1. First Cause of Action: Breach of Written
Contract
Plaintiff demurs to the first cause of action for failure
to state sufficient facts to constitute a contract or breach of a written
contract.
To plead breach of contract, a complaint must allege
facts showing (1) the existence of a contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to
plaintiff. (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 821; Aton
Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230
[listing the same elements for breach of an oral contract].)
“In an action based on a written contract, a plaintiff
may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v.
TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-99. But see Harris
v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 [requiring plaintiff
to attach a copy of the contract or to set out the terms verbatim in the body
of the complaint].) Pleading contracts
by legal effect involves alleging the relevant terms in substance. (McKell
v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 [“Plaintiffs
have still failed to identify the contract and contractual provision under
which Washington Mutual required them to pay underwriting and wire transfer
costs.”].)
The cross-complaint sufficiently alleges the relevant
terms of the written lease and the lease’s legal effect. Defendant alleges that it entered into a
written lease with Plaintiff on December 26, 2023 where Defendant agreed to
rent from Plaintiff Suite 250 in a building located in Santa Clarita, CA. (XC, ¶ 4.)
Defendant also alleges that paragraph 50 of the lease states that because
of “the emergency of moving in [Defendant] in a timely fashion,” Plaintiff
agreed to provide Defendant with improvements within thirty (30) days from the
start of lease on January 1, 2024. (XC,
¶5.) Defendant agreed to work at the
location while Plaintiff performed improvements. (XC, ¶ 5.)
The cross-complaint also lists the work Plaintiff was required to
perform and did not perform. (XC, ¶ 6(a)-(g).) Defendant also alleges Plaintiff’s obligation
to maintain the common areas of the property.
(XC, ¶ 7.)
The cross-complaint also establishes Defendant’s
performance of its obligations and Plaintiff’s breach. Defendant alleges that it performed all its
obligations under the lease’s express terms.
(XC, ¶ 12.) The only term the
cross-complaint mentions concerning Defendant’s obligations is Defendant
renting the property from Plaintiff.
(XC, ¶ 4.) Defendant also
sufficiently alleges that Plaintiff breached the lease by not performing
improvements within thirty (30) days of commencing the lease including removing
the bathroom toilet without capping it and painting the office several months
after the lease commenced. (XC, ¶¶ 5,
6(b), (e), 9, 13.) Defendant also
alleges that Plaintiff failed to maintain common areas of the property for
their intended use including several lockouts at the building entry, constant
problems with elevator not working, and cockroach infestations. (XC, ¶¶ 7, 8(c), (h), (i).)
Finally, Defendant alleges that Plaintiff’s breach caused
Defendant to suffer compensatory damages.
(XC, ¶ 14.) The cross-complaint
specifically states that Plaintiff’s breach severely delayed Defendant from
occupying the property. (XC, ¶ 8(b).)
Accordingly, Plaintiff’s demurrer to the First Cause of
Action is overruled.
2. Second Cause of Action: Negligence
Plaintiff demurs to the second cause of action for
failure to state sufficient facts to constitute negligence because Defendant
does not allege an independent duty Plaintiff owed Defendant outside the
alleged contract.
The elements of negligence are (1) the defendant owed
plaintiff a duty of care; (2) defendant breached the duty; (3) plaintiff was
harmed; and (4) defendant’s breach proximately caused plaintiff’s harm. (Restatement 2d Torts, §§
281, 283; Nola M. v. University of Southern California (1993)
16 Cal.App.4th 421, 426; 6 Witkin, Summary of Cal. Law (9th ed. 1988)
Torts, § 732, pp. 60-61)
Plaintiff contends that the negligence cause of action is
duplicative of the breach of contract cause of action and adds nothing to the
complaint. A demurrer is properly
sustained where cause of action contains the allegations of other causes of
action without adding facts or theories of recovery. (Palm Springs Villas II Homeowners Ass’n,
Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)
Defendant’s second cause of action for negligence simply
incorporates by reference his breach of contract allegations, making that cause
of action duplicative. The demurrer is
therefore sustained with leave to amend.
Motion to
Strike
“Any 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.” (Code Civ. Proc., § 435.) A court may strike from the complaint any
irrelevant, false, or improper matter. (Code Civ. Proc., § 436, subd. (a).) The
court may also “[s]trike out all or any part of any pleading not drawn or filed
in conformity with the laws of this state, a court rule, or an order of the
court.” (Code Civ. Proc., § 436, subd. (b).) “The grounds for a motion to
strike shall appear on the face of the challenged pleading or from any matter
of which the court is required to take judicial notice.” (Code Civ. Proc., §
437, subd. (a).)
1. Signature requirement
Plaintiff moves to strike the entire cross-complaint
because neither the cross-complaint nor the proof of service are signed by
Defendant or Defendant’s counsel.
“Every pleading, petition, written notice of motion, or
other similar paper shall be signed by at least one attorney of record in the
attorney’s individual name, or, if the party is not represented by an attorney,
shall be signed by the party. . . . An
unsigned paper shall be stricken unless omission of the signature is corrected
promptly after being called to the attention of the attorney or party.” (Code Civ. Proc., § 128.7, subd. (a).)
Neither the cross-complaint nor the proof of service
contain Defendant or Defendant’s counsel’s signature. Plaintiff’s counsel alleges that he informed
Defendant of this issue in the January 22, 2025 meet and confer letter but that
Defendant has not remedied the issue.
(See Shackelford, Esq. Dec., ¶ 2.)
The court does not have a copy of the meet and confer letter and cannot
confirm whether Plaintiff brought this issue to Defendant’s counsel’s
attention.
However, section 436 authorizes the court to strike
pleadings which are “not drawn or filed in conformity” with section 128.7’s
signature requirement. (Code Civ. Proc.,
§ 436; see also Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 767-68.)
Therefore, because the cross-complaint does not contain a
signature, the court grants Plaintiff’s motion to strike the entire
cross-complaint with leave to amend.
2. Statutory Damages
Plaintiff also argues that the court should strike Defendant
prayer for statutory damages under Bus. & Prof. code section 17200—page 5,
lines 23-24. Plaintiff contends that the
cross-complaint contains no allegations of unfair or improper competition or
business practices.
California’s Unfair Competition Law (UCL) prohibits
unlawful, unfair or fraudulent business practices. (Bus. & Prof. Code, § 17200, et
seq.) To assert a UCL claim, a plaintiff
must have suffered injury in fact and lost money or property as a result of the
unfair competition. (See Bus. &
Prof. Code, § 17204.) “Under the UCL,
damages cannot be recovered, and plaintiffs are generally limited to
restitution and injunctive relief.” (Safeway,
Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1147.)
Defendant does not allege a UCL cause of action or that
Plaintiff’s conduct was unfair or improper competition or business practices.
Therefore, the court also strikes statutory damages under
the UCL from the cross-complaint with leave to amend.
CONCLUSION AND ORDER
Plaintiff’s demurrer to the cross-complaint is overruled
in part for the First Cause of Action, and sustained in part for the Second
Cause of Action with leave to amend.
Plaintiff’s motion to strike the entire cross-complaint
and statutory damages under Bus. & Prof. Code, § 1720, et seq. is granted
with leave to amend.
Defendant may file an amended cross-complaint within 30
days of this order.
Plaintiff to give notice.