Judge Gary Y. Tanaka, Case 22TRCV01265 2023-05-11 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, May 11, 2023

Department B Calendar No. 7

Carolyn Hemker, et al.’s Demurrer to Complaint is sustained with 20 days leave to amend, in part, and without leave to amend, in part.

The demurrer to the first, second, fourth through seventh, and ninth causes of action is sustained with 20 days leave to amend. The demurrer to the third, eighth, and tenth causes of action is sustained without leave to amend.

Plaintiffs filed the Complaint on November 17, 2022. Plaintiffs allege the following facts. Plaintiffs were tenants at 2537 W. 225th Pl. Unit A Torrance, CA. Defendants are the owners and/or managers of the subject property. Plaintiffs allege various habitability and contract-related claims against Defendants. Plaintiffs set forth causes of action for (1) Fraud; (2) Violation of California Civil Code § 1941.1; (3) Violation of California Civil Code § 367; (4) Accounting; (5) Civil Extortion/Blackmail; (6) Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional Distress; (8) Extinguishment of Debt; (9) Declaratory Relief; and (10) Conclusion.

Defendants filed meet and confer declarations in sufficient compliance with both CCP § 430.41 and CCP § 435.5. (Decls., Christopher E. Barnes.)

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur to the entire Complaint and the first, and third through tenth causes of action on the grounds that the causes of action fail to state facts sufficient to state a cause of action and are uncertain. CCP § 430.10(e)(f).

Defendants’ demurrer to the entire Complaint is sustained with 20 days leave to amend. The Complaint is uncertain. Plaintiffs set forth ten causes of action but as to certain causes of action, Plaintiffs failed to delineate to which Defendant or Defendants the causes of action are directed. In addition, Plaintiffs failed to delineate which Plaintiff or Plaintiffs are pursuing each cause of action. There are two Plaintiffs. However, many of the allegations are brought by “Plaintiff” delineated in the singular rather than the plural. It is uncertain whether both Plaintiff are pursuing all causes of action or if certain Plaintiff or Plaintiffs are pursuing certain causes of action. Finally, “Extinguishment of Debt” and “Conclusion” are not recognized causes of action. In addition, a third cause of action for Violation of Civ. Code § 367 is mentioned in the caption but not stated in the body of the Complaint. Also, no such statute exists.

Defendants also demurred individually to the first, and third through tenth causes of action.

The demurrer to the first cause of action is sustained for the separate ground that the cause of action fails to state facts sufficient to constitute 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. “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he has known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. “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. Plaintiffs 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.

Plaintiffs fail to state who made the purported misrepresentations or concealment, to whom they were made, and when, where, and by what means the representations and/or concealment were made.

The demurrer to the third cause of action is sustained. As mentioned above, this cause of action is referenced in the caption, but not stated in the body of the Complaint. In addition, there is no Civil Code § 367.

The demurrer to the fourth cause of action is sustained for the separate ground that the cause of action fails to state facts sufficient to constitute a cause of action.

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179. Plaintiffs fail to allege the existence of a relationship that permits an accounting, or that there is an unusual complexity to the accounts that requires an accounting.

The demurrer to the fifth cause of action is sustained for the separate ground that the cause of action fails to state facts sufficient to constitute a cause of action.

“Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” Pen. Code, § 518. Plaintiffs have failed to plead any facts that meet the elements of Extortion as against demurring Defendants.

The demurrer to the sixth cause of action is sustained for the separate ground that Plaintiffs fail to state facts sufficient to state a cause of action.

“A cause of action for IIED requires proof of: (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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.

“[I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress.” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921. “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Id.

Here, however, Plaintiffs failed to set forth facts to support the elements of extreme and outrageous conduct, intent or reckless disregard, and proximate causation. Plaintiffs have simply set forth conclusions. The alleged facts are not sufficient to show that Defendants abused a position of power, or, that Defendants knew that Plaintiff was susceptible to injuries through emotional distress, or, that Defendants acted intentionally or unreasonably knowing that it would likely cause emotional distress.

As to the seventh cause of action, Plaintiffs fail to state sufficient facts. NIED is not an independent cause of action. Emotional distress is a component of damages that can be recovered in a negligence cause of action. See, Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072. Leave to amend is provided to assert a Negligence cause of action.

“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.”

“To qualify for declaratory relief, [Plaintiff] would have to demonstrate its action presented two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Plaintiff’s] rights or obligations.... But even assuming that [Plaintiff’s] action satisfies the first requirement, it must still present an ‘actual controversy.’ The ‘actual controversy’ language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. It does not embrace controversies that are conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court. Thus, while a party may seek declaratory judgment before an actual invasion of rights has occurred, it must still demonstrate that the controversy is justiciable. And to be justiciable, the controversy must be ripe.” Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582 (internal citations and quotations omitted; emphasis in original). “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.

Plaintiffs have failed to allege a proper subject of declaratory relief such as a contractual or other basis for declaratory relief and have failed to allege an actual existing justiciable controversy relating to Plaintiffs’ rights and obligations.

As to the eighth and tenth causes of action, as already mentioned above, these are not recognized causes of action.

Thus, for the foregoing reasons, Defendants’ Demurrer to the Complaint is sustained with 20 days leave to amend and without leave to amend, in part.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike 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. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Defendants’ motion to strike is deemed moot upon the sustaining of the demurrer to the entire Complaint.