Judge: H. Jay Ford, III, Case: 22SMCV01598, Date: 2023-03-09 Tentative Ruling

Case Number: 22SMCV01598    Hearing Date: March 9, 2023    Dept: O

  Case Name:  Silber Family Partnership LLC v. Vatchreeporn M. Sanguimpun, etal.

SUBJECT:                 DEMURRER TO CROSS-COMPLAINT

MOVING PARTY:   Plaintiff Silber Family Partnership LLC

RESP. PARTY:         Defendant Vatchreeporn M. Sanguimpun

TENTATIVE RULING

            Plaintiff’s Demurrer to the Sanguimpun’s Cross-Complaint is SUSTAINED WITH 10 DAYS LEAVE TO AMEND. 

            The Cross-Complaint in included as part of the answer.  Each cause of action in the Cross-Complaint incorporates by reference, “all preceding paragraphs of her Answer, Affirmative Defenses and Counterclaims.”  Because this defect infects the entirety of the pleading and makes it impossible for the Court to determine what precise facts are incorporated into each cause of action, Plaintiff’s demurrer to each separate cause of action cannot be assessed at this time. 

Plaintiff’s demurrer on grounds that the cross-complaint is improperly “buried” in the answer is SUSTAINED WITH 10 DAYS LEAVE TO AMEND. A cross-complaint is a separate pleading, not a part of the answer.  CCP §428.40. 

Plaintiff’s demurrer to the 1^st cause of action for breach of contract is also SUSTAINED WITH 10 DAYS LEAVE TO AMEND on grounds of statute of frauds under Civil Code §1624(a)(3), which provides that “An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agen ti sin writing, subscribed by the party sought to be charged.”  Civil Code §1624(a)(3).  Defendant alleges breach of an “oral modification of the lease granting Ma’am a lease extension.”  See Answer, Cross-Complaint, ¶17.  Defendant argues several different exceptions to the statute of frauds defense apply. However, these exceptions (e.g. equitable estoppel, part performance, admission) are not alleged in the cross-complaint.  See Smyth v. Berman (2019) 31 Cal.App.5^th 183, 197-198 (affirming order sustaining demurrer without leave to amend based on statute of frauds where complaint did not allege facts supporting application of exception based on equitable estoppel Lopez v. Flynn (1946) 72 Cal.App.2d 619, 621-622 (where it was undisputed that contract is subject to statute of frauds, plaintiff must allege facts to support an exception to the statute of frauds in the complaint in order to avoid demurrer). 

Plaintiff’s demurrer to the 2^nd cause of action for fraudulent misrepresentation is SUSTAINED WITH 10 DAYS LEAVE TO AMEND.  Defendant fraudulent misrepresentation claim fails to allege fraud with specificity, i.e. who made the misrepresentation, when it was made, how it was made and the person who made the misrepresentation on an entity defendant’s behalf.  Defendant should clarify if she is alleging fraud by concealment or fraud by intentional misrepresentation. The 2nd cause of action combines both allegations of omissions and intentional misrepresentations.

Defendant’s 3^rd cause of action for negligent misrepresentation likewise fails for lack of specificity.  Plaintiff’s demurrer to the 3^rd cause of action for negligent misrepresentation is SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

Defendant’s 4^th cause of action for promissory estoppel depends on the incorporated allegations to state a claim for promissory estoppel, including the nature of the promise and Defendant’s detrimental reliance.  “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225.

“The purpose of this doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee's performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.”  Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 249. The doctrine is an equitable doctrine that is only necessary when no actual consideration was given by the promisee.  Id. at 250. 

Defendant cannot rely on incorporation of allegations from the answer to state a claim in the cross-complaint.  Defendant must file a separate cross-complaint.  Plaintiff’s demurrer to the 4^th cause of action for promissory estoppel is SUSTAINED WITH 10 DAYS LEAVE TO AMEND. 

Defendant’s 5^th cause of action for unjust enrichment depends on incorporation of paragraphs from the Answer and Affirmative Defenses.  See Answer, X-Complaint, ¶¶34-36. “The elements of an unjust enrichment claim are the receipt of a benefit and the unjust retention of the benefit at the expense of another. Here, plaintiffs received the benefit of the bargain.  The mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.  There is no equitable reason for invoking restitution when the plaintiff gets the exchange which he expected.”  Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.  Plaintiff’s demurrer to the 5^th cause of action for unjust enrichment is SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

            Defendant’s 6^th through 8^th cause of action for violation of the LA County COVID 19 Tenant Protections fail to allege what specific section of the LA County COVID 19 Tenant Protections were violated in each cause of action, and Defendant impermissibly relies on incorporation of the Answer and Affirmative Defendants to plead violations of the LA County COVID 19 Tenant Protections.  Plaintiff’s Demurrer to the 6^th through 8^th causes of action for violation of the LA County COVID 19 Tenant Protections is SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

            Defendant’s 9^th cause of action for wrongful eviction improperly relies on incorporated allegations from the Answer and Affirmative Defenses.  “[A] person in peaceable possession of real property may recover, in an action sounding in tort, damages for injuries to his person and goods caused by the forcible entry of one who is, or claims to be, the lawful owner or possessor....”  Daluiso v. Boone (1969) 71 Cal.2d 484, 486.  The essential elements of a tort claim for wrongful entry or eviction are (1) the plaintiff's peaceable possession, and (2) the defendant's forcible entry.  See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1040.  The defendant's title or right of possession is no defense to such action. Daluiso, supra, 71 Cal.2d at 486.      

            Defendant’s 10^th cause of action for breach of the implied covenant of good faith and fair dealing improperly relies on incorporated allegations of the Answer and Affirmative Defenses.  Defendant also fails to allege the nature of the breach.  “A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment.”  Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394. “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. To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.”  Id. at p. 1395.   “Thus, it is well settled the implied covenant does not extend so far as to impose enforceable duties that are beyond the scope of the contract, nor does the covenant prohibit actions that are expressly authorized by the contract's terms.”  Carma Developers (Cal.), Inc. v. Marathon Development California (1992) 2 Cal.4th 342, 373.