Judge: Gregory Keosian, Case: 22STCV19818, Date: 2024-01-18 Tentative Ruling

Case Number: 22STCV19818    Hearing Date: January 18, 2024    Dept: 61

Defendant Wei Guo’s Demurrer and Motion to Strike Portions of the Complaint is SUSTAINED as to the second cause of action for retaliation, without leave to amend, and otherwise OVERRULED and DENIED.

Defendant Wei Guo’s Defendant Wei Guo’s Motion to Require Plaintiffs James Morgan and William Morgan to File an Undertaking is DENIED.

Defendant to give notice.

I.                DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Wei Guo (Defendant) demurrers to the Complaint filed by Plaintiffs William and James Morgan (Plaintiffs). The motions are unopposed, but service has been made upon an address in Illinois other than the Palmdale address listed on Plaintiffs’ complaint. However, Plaintiffs’ last filing — a proof of service filed on May 8, 2023 — listed the Illinois address as their own, and notices received by this court on May 16, 2023, indicate that mail sent to Plaintiffs at their Palmdale address were returned.  The court therefore proceeds with these motions as properly served upon Plaintiffs at their last-provided address.

A.    BREACH OF CONTRACT

The elements of a breach of contract claim are “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) A contract complaint must state “whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10.)

Defendant argues that although the lease agreement is attached to the Complaint, the Complaint alleges an agreement to waive rent until certain repairs are made, and does not allege the timing or manner of this amendment. (Demurrer at p. 5; Complaint at p. 3.)

The error of Defendant’s argument is that it relies upon the label of the claim as one for breach of contract when the substance of the claim is, as indicated by the body of text beneath it, one for breach of the covenant of habitability. (Complaint at p. 3.) The warranty of habitability is expressly invoked in the body of the claim, and the conduct constituting breach is Defendant’s alleged failure to remedy certain listed defects, including rodent infestation, lack of a refrigerator, dirty carpet, and broken countertops. (Complaint at p. 3.) “[W]e look beyond the claim's label, which is not dispositive when reviewing a trial court's sustaining of a general demurrer. Instead we focus on the complaint's actual gravamen, on its facts alleged.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1595, internal citations and quotation marks omitted.)

The demurrer is therefore OVERRULED as to the first cause of action for breach of contract, properly construed as a breach of the warranty of habitability claim.

B.    RETALIATION

Defendant argues that the second cause of action for retaliation under Civil Code § 1942.5 fails to identify what retaliation occurred or what rights Plaintiffs exercised. (Demurrer at p. 6.) This argument is persuasive, as the retaliation statute identifies as retaliation conduct that occurs “within 180 days” of certain specified protected activity. (Civ. Code § 1942.5, subd. (a).) Moreover, Plaintiff’s pleading of the retaliatory conduct is likewise devoid of timing, and consists of a conclusory allegation that Defendant engaged in “an escalating pattern of retaliation, harassing, threatening, withholding services,” without further elaboration. (Complaint at p. 3.)

The demurrer is therefore SUSTAINED as to the second cause of action for retaliation.

C.    TRESPASS

Defendant argues that the trespass cause of action fails because it alleges that Defendant trespassed upon Plaintiffs’ premises three days out of each week, nominally to do repairs, but without ever hiring a contractor to perform them. (Demurrer at p. 7.) Defendant identifies no defect in this claim, however, save that the time-frame of “3 days out of each week” does not provide sufficient notice of the conduct. (Demurrer at p. 7.) Defendant identifies no authority for this proposition, and the Complaint’s allegation of “each week” provides sufficient notice.

D.    NUISANCE

Defendant’s argument as to the fourth cause of action for nuisance is that it consists solely of conclusions of fact and law. (Demurrer at p. 7.) Yet this claim alleges a nuisance arising from Defendant’s failure to rectify “insect and rodent infestation throughout the premises” and “rodent feces throughout the premises.” (Complaint at p. 4.) This allegation is sufficient, and the demurrer is OVERRULED as to the nuisance claim.

E.    FRAUD

Defendant argues that the fifth and sixth causes of action for fraud and deceit are not pleaded with the requisite particularity. (Demurrer at pp. 7–8.)

“‘The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]’ [Citation.]” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The claims here are pleaded with adequate particularity. It is alleged that Defendant in July 2022 (likely a typo, meaning to refer to July 2021, when the lease was executed) falsely represented to Plaintiffs that the premises were habitable and had a refrigerator, when in fact they were not habitable and no refrigerator existed on the premises. (Complaint at p. 4.) The demurrer is therefore OVERRULED as to these claims.

F.    UNJUST ENRICHMENT

Defendant last demurrers to the unjust enrichment claim, on the grounds that an express contract exists between the parties, and Plaintiffs are not alleged to have paid any money to Defendant for which recompense might be made. (Demurrer at pp. 8–9.)

Defendant misreads the Complaint. The unjust enrichment claim arises not only from Defendant’s failure to honor the alleged waiver of rent, but also from Plaintiffs’ alleged repair of the broken countertops on the premises, for which Defendant has failed to compensate Plaintiff. (Complaint at p. 6.) Such facts can support a claim for unjust enrichment. (Kossian v. American Nat. Ins. Co. (1967) 254 Cal.App.2d 647, 651.)

The demurrer is therefore OVERRULED as to this claim.

In summary, the demurrer is SUSTAINED without leave to amend as to the second cause of action for retaliation, and is otherwise OVERRULED.

II.             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(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike 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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendant moves to strike Plaintiff’s prayer for punitive damages. (Motion at pp. 4–9.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice .” (Civ. Code § 3294, subd. (a).) The terms are defined as:

“Malice” means conduct which is 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.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“Fraud” means 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, subd. (c).)

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

Defendant’s argument as to the sufficiency of the allegations supporting the prayer for punitive damages are unpersuasive, as the Complaint contains allegations of fraud and misrepresentation of the conditions of the premises by which Plaintiffs were induced to enter into the lease agreement and provide repair services for Defendant. These allegations support the element of “fraud” for the purposes of a punitive damages claim.

The motion to strike is therefore DENIED.

III.           MOTION TO COMPEL AN UNDERTAKING

Defendant requests that this court order Plaintiffs to post a bond of $100,000.00 as out-of-state plaintiffs under Code of Civil Procedure § 1030.

(a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract.

(b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.

(Code Civ. Proc. § 1030, subd. (a)–(b).) This section “provides that upon a defendant's motion, the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney's fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.)

Although Plaintiffs listed their address as being on Scranton Court in Palmdale on their Complaint and in their case management statement, their most recent filing — a proof of service form — indicates an address on Schumacher Drive in Naperville, Illinois. This court has received notices of returned mail sent to Plaintiffs at their original listed address as of May 16, 2023. This motion has been served to the address most recently listed on Plaintiffs’ filings, and no opposition has been filed.

However, no undertaking is proper under this motion. To obtain an order requiring an undertaking, the defendant most show “that there is a reasonable possibility that the moving defendant will obtain judgment in the action.” (Code Civ. Proc. § 1030, subd. (b).) Defendant has made no showing of probability or possibility of prevailing. The only evidence cited for that position is the following statement in the declaration of Defendant’s counsel: “There is a reasonable possibility that the moving GUO will obtain judgment in the action and be the prevailing party under California Civil Procedure Code § 998.” (Bowen Decl. ¶ 6.) This assessment is offered without foundation or elaboration, and the motion is otherwise bereft of any assessment of the case or its allegations.

The motion is therefore DENIED.