Judge: Gary Y. Tanaka, Case: 21TRCV00531, Date: 2022-09-26 Tentative Ruling

Case Number: 21TRCV00531    Hearing Date: September 26, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

 

Honorable Gary Y. Tanaka                                                                                                 Monday, September 26, 2022

Department B                                                                                                                                               Calendar No. 9

 

 

PROCEEDINGS

 

Mohammed Abdoun, et al. v. South Bay Center SPE, LLC, et al. 

21TRCV00531

  1. South Bay Center SPE, LLC’s Motion for Judgment on the Pleadings        

     

    TENTATIVE RULING

     

                South Bay Center SPE, LLC’s Motion for Judgment on the Pleadings is denied, in part, granted with 20 days leave to amend, in part, and granted without leave to amend, in part.

     

                Background

     

                Plaintiffs filed their Complaint on July 21, 2021.  Plaintiffs allege the following facts. Defendants and Plaintiff have a license agreement for the use of restaurant space in Defendants’ food court.  Defendants prevented Plaintiffs from properly addressing pest and vermin issues. Therefore, compliance with the terms of the license was not possible.  Defendants unfairly targeted Plaintiffs and have threatened to evict Plaintiffs.  Plaintiffs allege the following causes of action: 1. Breach of Written Contract; 2. Breach of Covenant of Good Faith and Fair Dealing; 3. Fraud; 4. Negligence; 5. Harassment; 6. IIED; 7. NIED; 8. Declaratory Relief.

     

                Meet and Confer

     

                Defendant filed a meet and confer declaration in sufficient compliance with CCP § 439. (Decl., Noel S. Cohen, ¶¶ 3-4.)

     

                Request for Judicial Notice


                Defendant’s request for judicial notice is granted pursuant to Evidence Code section 452(h).


                Motion for Judgment on the Pleadings

     

                A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired.  Code Civ. Proc., § 438, subd. (f).  Except as provided by statute, the rules governing demurrers apply.  Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.  “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.”  Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  Civic Partners Stockton, LLC, supra, 218 Cal.App.4th at p. 1013.  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.”  Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.

     

                Defendant moves, pursuant to Code of Civil Procedure § 438, for an order granting judgment on the pleadings. The motion is based on the ground that Plaintiffs causes of action fail as a matter of law.

     

First Cause of Action for Breach of Contract

 

Defendant’s motion for judgment on the pleadings is denied.  Plaintiffs state facts sufficient to constitute a cause of action.

 

“The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” Coles v. Glaser (2016) 2 Cal.App.5th 384, 391 (internal quotations omitted).

 

Plaintiffs have alleged facts of the existence of the contract, Plaintiff’s performance or excuse for non-performance, Defendant’s breach, and resulting damages.  (Complaint, ¶¶ 29-35.) Defendant has requested judicial notice of the License Agreement, and then in its motion highlighted Sections 3, 8, 9, and 27 of the agreement.  Essentially, Defendant argues that it did not breach the agreement because the license agreement does not permit Plaintiff to contract with its choice in pest control companies and because Defendant’s refusal to allow Plaintiff’s hired pest contract company to work after hours was a breach of the agreement.  However, Defendant acknowledges that, according to the agreement, it was Plaintiff’s duty to keep the area clean and safe from vermin.  Plaintiffs have alleged facts contending that Defendant acted in a manner to prevent Plaintiffs from fulfilling that duty and performing that portion of the contract. Prevention or hindrance of the other party’s performance of the contract is an excuse for non-performance and can also constitute a breach of the contract.  Crawford v. Pioneer Box Co. (1930) 105 Cal.App. 760, 768.  Here, Plaintiffs have alleged that it attempted to rectify the vermin infestation but was prevented from doing so by Defendant.  (Complaint, ¶ 31.)  These facts may constitute a breach of the contract and Defendant has pointed to no specific portion of the contract that would allow Defendant the right to prevent Plaintiff’s performance of the contract.  Even if such a provision was in the contract, the Court would question the legality of such a provision.

 

While the motion for judgment on the pleadings as to the first cause of action is denied, the Court does find that the identity of the Plaintiffs is uncertain.  Defendant originally moved on this ground but abandoned this argument with the Reply.  All parties appear to concede that the actual Plaintiff is “Mohammed Abdoun doing business as Burger Spot” which would be a sole Plaintiff, and not two separate Plaintiffs as now set forth in the Complaint.  If an amended Complaint is filed, the amended Complaint should reflect this.

 

Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing   

 

Defendant’s motion is granted with 20 days leave to amend.

 

“Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises. The scope of conduct prohibited by the implied covenant depends on the purposes and express terms of the contract. Although breach of the implied covenant often is pleaded as a separate count, a breach of the implied covenant is necessarily a breach of contract.” Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885 (internal citations omitted). A breach of the covenant of good faith and fair dealing does not give rise to a cause of action separate from a cause of action for breach of the contract containing the covenant. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 327 (stating that “where breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.”) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.

 

Here, the factual allegations of the second cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing are merely duplicative of the same facts of breach and damages as the contract cause of action.

 

Third Cause of Action for Fraud

 

Defendant’s motion is granted with 20 days leave to amend.  Plaintiff fails to state facts sufficient to state a cause of action.

 

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”  Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. “Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.  Plaintiff must state facts which “show how, when, where, to whom, and by what means the representations were tendered.”  Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.

 

Here, while somewhat unclear, the apparent misrepresentation was not the content of the e-mail referred to in paragraph 47 but the alleged misrepresentation of the date the email was sent. Plaintiff has failed to allege specific facts of how and by what means the representation was made, to whom it was made (it appears that the representation may have been made to Abdoun, however, if so, this would place into question the element of justifiable reliance since Abdoun would have been aware of the date of the email), when it was made, and where it was made.  Plaintiff’s allegations of knowledge of falsity and intent to deceive are conclusory and not alleged with specificity.  The Court has already identified above the uncertainty with respect to the element of justifiable reliance.

 

Fourth Cause of Action for Negligence

 

Defendant’s motion is granted with 20 days leave to amend.  Plaintiff fails to state facts sufficient to state a cause of action.

 

The alleged duty, breach, and damages are the same as the Breach of Contract.  The economic loss rule prohibits recovery of tort damages in a breach of contract case.  See, Robinson Helicopter, Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988. “[T]he economic loss rule prevent[s] the law of contract and the law of tort from dissolving one into the other.”  Id.  “[A] contractual obligation may create a legal duty and the breach of that duty may support an action in tort.  This is true; however, conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.  An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.”  Erlich v. Menezes (1999) 21 Cal.4th 543, 551 (internal citations and quotations omitted). Here, Plaintiff has failed to identify a duty that was independent of the contract.  Plaintiff, in a conclusory and self-serving manner, refers to a “fiduciary duty,” but fails to allege facts or to provide any competent authority to show that the parties entered into a fiduciary relationship.

 

Fifth Cause of Action for Harassment

 

Defendant’s motion is granted without leave to amend.  Plaintiffs concede to the motion for judgment on the pleadings.

 

Sixth Cause of Action for IIED

 

Defendant’s motion is granted with 20 days leave to amend.  Plaintiff fails to state facts sufficient to state a cause of action.

 

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”  Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–29.

 

Here, Plaintiff has failed to allege facts demonstrating each of the elements of the cause of action. Plaintiff’s allegations are completely conclusory, and, again, appear to rely on the same facts as the breach of contract cause of action. These facts may support a claim for breach of contract, but not a separate tort as noted in the ruling to the motion for judgment on the pleadings as to the fourth cause of action.

 

Seventh Cause of Action for NIED

 

Defendant’s motion is granted without leave to amend.

 

Negligent Infliction of Emotional Distress is not an independent cause of action.  Instead, emotional distress is a component of damages that may be recoverable in a Negligence cause of action.  See Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588.  Thus, this cause of action is duplicative of the fourth cause of action.

 

Eighth Cause of Action for Declaratory Relief

 

The motion is granted without leave to amend.  Plaintiffs fail to state facts sufficient to state a cause of action. 

 

Code Civ. Proc., § 1060 states, in relevant part:

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, [. . .]may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

 

“The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Code Civ. Proc., § 1061.

 

Here, the Court determines that declaratory relief is not necessary or proper, and, is in fact, duplicative of the first cause of action as all the rights and obligations of the parties will necessary be adjudicated within the context of that cause of action.

 

Defendant is ordered to give notice of this ruling.