Judge: Helen Zukin, Case: 19STCV34241, Date: 2022-08-03 Tentative Ruling

Case Number: 19STCV34241    Hearing Date: August 3, 2022    Dept: 207



This dispute involves a tenant’s personal injury from mold due to the landlord’s negligence. Plaintiff Michael Landman (“Plaintiff”) was a tenant at the property located at 744 Amaroso Place, Apt 3, in Venice California (“Subject Property”). Defendant David Freedman (“Freedman”), now deceased, was the owner and landlord of the Subject Property. Shortly before he passed away, on September 21, 2020, Freedman filed a Cross-Complaint against the roofer, Cross-Defendant United Roofing Co. (“Cross-Defendant”), Freedman subsequently filed a First Amended Cross-Complaint (the “Freedman FACC”) on December 9, 2020, alleging causes of action against Cross-Defendant for intentional misrepresentation, concealment, fraud, negligence, products liability, indemnification, and apportionment of fault. Freedman subsequently dismissed the Freedman FACC with prejudice on September 13, 2021.


Before Freedman passed away, the Subject Property was transferred to a trust. On June 16, 2021, Plaintiff filed an amendment to the complaint naming Martha Woliung as the Trustee of the David Freedman and Martha Woliung Living Trust Dated October 17, 2019 (“the Trust” or “Cross-Complainant”), in place of Doe 1. On April 13, 2022, the Trust filed a Cross-Complaint against Cross-Defendant asserting the same causes of action as were previously asserted in the Freedman FACC.


Cross-Defendant now brings this demurrer, alleging the entire Cross-Complaint is uncertain, ambiguous, and unintelligible under Code Civ. Proc. § 430.10(f). Cross-Defendant also alleges the first cause of action for intentional misrepresentation, second cause of action for concealment, third cause of action for fraud, and fifth cause of action for products liability fail to state facts sufficient to constitute a cause of action against Cross-Defendant under Code Civ. Proc. § 430.10(e).


Cross-Defendant separately moves to strike Cross-Complainant’s claim for punitive damages.


Request for Judicial Notice


Cross-Defendant requests the Court take judicial notice of two pleadings previously filed in this action. Cross-Defendant’s request is unopposed and is GRANTED.


Demurrer Standard


When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) 


Motion to Strike Standard


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. (Code Civ. Proc., § 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. (Id., § 436(b).) The grounds for a motion to strike are: the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) 




1.         Meet and Confer Requirement


Before filing a demurrer or a motion to strike, the demurring or moving party is required to “meet and confer in person or by telephone” with the party who filed the pleading demurred to or the pleading subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading to resolve the objections to be raised in the demurrer. (C.C.P. §§ 430.41 and 435.5.) Cross-Defendant has satisfied these meet and confer obligations in bringing the demurrer and motion to strike. (Saracyan Decl. at ¶¶13-16.)


            2.         Uncertainty


Cross-Defendant has demurred to the entire Cross-Complaint, alleging it is “uncertain, ambiguous and unintelligible” under Code Civ. Proc. § 430.10(f). (Demurrer at 2.) Cross-Defendant offers no argument on this point. “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal. App. 5th 841, 848 n. 3 (2017) (citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135.) In addition, even where a pleading is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Lickiss, 208 Cal. App. 4th at 1135 [citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616.)


The Court OVERRULES Cross-Defendant’s demurrer for uncertainty because demurrers for uncertainty are disfavored and should only be sustained where the complaint is so uncertain that the demurring defendant cannot reasonably respond thereto. Here, the Cross-Complaint is not so uncertain that Cross-Defendant cannot reasonably respond thereto. Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)


            3.         Intentional Misrepresentation, Concealment, and Fraud


Cross-Defendant previously demurred to the Freedman FACC. On April 9, 2021, the Court issued an order sustaining Cross-Defendant’s demurrer as to the causes of action for intentional misrepresentation, concealment, and fraud, finding they had not been pled with the requisite specificity for fraud claims:


With regard to the fraud, concealment, and misrepresentation claims, the problem is that the causes of action are not pled with the requisite specificity. The landlord has undertaken to claim fraud and fraud-like torts. That means that the landlord has undertaken to allege these causes of action with particularity. As such, the landlord needs to allege specifically what false statements were made, who made them, how they were made, to whom they were made, and when they were made. So, if the roofer misrepresented that the roof was in good shape when it was leaky, the landlord needs to identify the individual who made the statement, the date when the statement was made, what exactly was said, to whom it was said, and how the roofer knew that the roof was leaky when the statement was made. If it was made more than once (as is alleged), these allegations have to be set forth for each statement. If information was concealed, the landlord needs to specify what information was concealed, facts that would suggest that the roofer knew of the concealed fact, and the reasons why the roofer was under a duty to disclose the concealed fact. None of this is insurmountable. It is just that it has to be done right and the allegations as they stand are not sufficient.


(Order at 1-2.)


Here, Cross-Complainant’s allegations of intentional misrepresentation are taken nearly verbatim from the Freedman FACC. Aside from minor wording change necessitated by Freedman’s death, Cross-Complainant has amended these allegations in three ways. First, the Cross-Complaint now alleges “At no time were they give authority to use inferior or inadequate materials, or seconds. At no time were they allowed to use inferior installation techniques.” (Cross-Complaint at ¶9.) Second, rather than stating “Cross Complainant was harmed by Cross Defendant’s intentional misrepresentation” (Freedman FACC at ¶13), the Cross-Complaint now alleges “Cross Defendants’ misrepresentation and Decedent’s reliance thereon were the cause of injury and damage to Cross Complainant.” (Cross-Complaint at ¶14.) Finally, the Cross-Complaint adds conclusory allegations that Cross Defendant “acted egregiously, with malice, oppression and fraud.” (Cross-Complaint at ¶15.)


These changes do not address the defects previously identified by the Court in ruling on the Freedman FACC. As the Court previously noted, to state a cause of action for misrepresentation, Cross-Complainant must plead facts showing what false statements were made, who made them, how they were made, to whom they were made, and when they were made. The Cross-Complaint fails to include such facts.


The same is true with respect to the causes of action for concealment and fraud. As the Court previously held, to sufficiently plead a cause of action for concealment, Cross-Complainant must identify what specific information was concealed, facts that would suggest that the roofer knew of the concealed fact, and the reasons why the roofer was under a duty to disclose the concealed fact. Similarly, to state a cause of action for fraud based on false promised, Cross-Complainant must plead specific facts establishing the names of the persons allegedly making the false promises, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The Cross-Complaint adds no such facts to either cause of action and simply repeats the allegations of the Freedman FACC with minor wording changes and adding conclusory allegations of oppression, fraud, and malice. (Cross-Complaint at ¶¶21, 27.)


Accordingly, the Court SUSTAINS Cross-Defendant’s demurrer as to Cross-Complainant’s causes of action for intentional misrepresentation, concealment, and fraud. Cross-Complainant’s opposition indicates it may be able to cure these defects through further amendment. For example, Cross-Complainant suggests it can identify the specific employee of Cross-Defendant which made false statements or concealed facts from it. (Opposition at 5.) The Court thus intends to grant Cross-Complainant 30 days’ leave to amend these claims; however, the Court reserves its final determination on this point pending resolution of the statute of limitations issue discussed below.


            4.         Products Liability


“The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Cross-Defendant brought a demurrer to this cause of action in the Freedman FACC as well. The Court sustained the demurrer with leave to amend, finding Freedman had failed to sufficiently allege the products and defects underlying the cause of action:


To the extent that the landlord is alleging products liability, the landlord needs to do more than just say that the roofer used “seconds.” That is not in and of itself improper. Rather, the landlord must say what product was defective and how it was defective. In addition, certain allegations do not give rise to product liability. For example, if the roofer failed to use an asphalt primer, or used inadequate layers of bitumen, that is not a product defect. It may well be a breach of contract (since the contract must have expressly or impliedly stated that the roof would be done in a workmanlike manner and those failures may fall below industry standards for a roof), but it is not products liability.


(Order at 2.) As with the causes of action discussed above, Cross-Complainant here simply restates the allegations of the Freedman FACC with slight wording changes which do not address the substantive issues identified in the Court’s prior order. Rather, Cross-Complainant’s cause of action for products liability is based on the same conclusory allegations regarding the use of seconds, inadequate layers of bitumen, and the absence of asphalt primer as were asserted in the Freedman FACC. Accordingly, the Court SUSTAINS Cross-Defendant’s demurrer to this cause of action for the same reasons the Court previously enumerated with respect to the Freedman FACC. As above, the Court will reserve the question of whether Cross-Complainant should be given leave to amend pending the resolution of the statute of limitations issue discussed below.


            5.         Statute of Limitations


Cross-Defendant further alleges Cross-Complainant’s claims are barred by the statute of limitations pursuant to Code Civ. Proc. § 366.1, which provides:


If a person entitled to bring an action dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced before the expiration of the later of the following times:


(a) Six months after the person’s death.


(b) The limitations period that would have been applicable if the person had not died.


Cross-Defendant argues Freedman died in October 2020 and the Cross-Complaint was filed more than six months later on April 13, 2022. Thus, Cross-Defendant concludes Cross-Complainant’s “claims are entirely barred by the statute of limitations pursuant to Section 366.1” (Demurrer at 8.)


At the outset, the Court notes it is unable to determine which causes of action Cross-Defendant is alleging are barred by the statute of limitations. Pursuant to California Rules of Court rule 3.1320(a), “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” Cross-Defendant has not done this with respect to its argument concerning Code Civ. Proc. § 366.1. Cross-Defendant correctly notes “A pleading which on its face is barred by the statute of limitations does not state a viable cause of action.” (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440.) However, Cross-Defendant’s notice does not indicate it is alleging the Cross-Complaint fails to state a claim in its entirety, rather, it states failure to state a claim as a ground for demurrer to the four specific claims identified above only.


This confusion is further compounded by Cross-Defendant’s failure to address subsection (b) of section 366.1. Cross-Defendant alleges Cross-Complainant’s claims are barred by 366.1(a) because they were brought more than six months after Freedman’s death. But section 366.1 provides the relevant time period is the “later” of (a) six months after the decedent’s passing or (b) within the limitations period which would have been applicable if the decedent had not died. Cross-Defendant offers no discussion or argument as to the applicable limitations period if Freedman had not passed away, and in particular has offered no basis for the Court to conclude the six-month period in section 366.1(a) is the later of the two time periods.


Cross-Complainant does not discuss the applicable time period under Code Civ. Proc. § 366.1 either. Rather, Cross-Complainant alleges section 366.1 does not apply to it because it is not bringing a survivor action. Cross-Complainant’s argument is based solely on the Court’s February 8, 2022, order ruling on Cross-Complainant’s demurer to Plaintiff’s First Amended Complaint. In its demurrer, Cross-Complainant alleged the Court lacked jurisdiction over Plaintiff’s claims because after Freedman’s death, Plaintiff did not follow the proper procedure for substituting Cross-Complainant into the action in place of Freedman. The Court overruled the demurrer, finding “the Trust was a separate Doe Defendant and is not in this suit merely as a successor in interest.” (Order at 3.) Cross-Complainant argues this finding necessarily means it is not bringing claims against Cross-Defendant as a survivor or successor in interest to Freedman. The Court disagrees. In ruling on Cross-Complainant’s demurrer to the First Amended Complaint, the Court was concerned only with the nature of the claims being asserted by Plaintiff against Cross-Complainant. The Court determined those claims were not solely based on Cross-Complainant’s status as s successor in interest. But the fact that Plaintiff has asserted direct claims against Cross-Complainant does not mean Cross-Complainant has not asserted survivor or successor in interest claims against Cross-Defendant on behalf of Freedman.


Cross-Complainant further alleges the “Cross-Complaint relates back to the filing of the original cross complaint by Defendant, Freedman” and is thus timely under 366.1 (Opposition at 3.) Plaintiff offers no additional discussion or authority in support of this argument. Cross-Defendant has not filed a reply, and thus offers no response to any of the arguments raised by Cross-Complainant.


The Court cannot determine on the record before it whether or to what extent Cross-Complainant’s claims are barred by Code Civ. Proc. § 366.1. The parties are directed to submit further briefing on this issue to address the following issues: (1) which, if any, claims asserted by Cross-Complainant are brought as a survivor or successor in interest to Freedman, (2) whether those claims, if any, relate back to Freedman’s original Cross-Complaint or FACC, (3) the applicable statute of limitations for any such claims, and (4) when those statutes of limitations would have expired if Freedman had not passed away. The Court will continue the hearing on this matter to allow time for supplemental briefing to address these issues.


Cross-Defendant separately alleges Cross-Complainant has failed to execute and file the affidavit required by Code Civ. Proc. § 377.32 for a party seeking to bring an action as a successor in interest of a decedent. As the Court has requested additional briefing on the issue of whether Cross-Complainant is asserting claims in such a capacity, the Court will reserve ruling on Cross-Defendant’s argument under section 377.32 until after the supplement briefs have been filed.


            6.         Motion to Strike


Cross-Defendant has moved to strike Cross-Complainant’s claim for punitive damages and all allegations relating to the claim. Cross-Complainant’s claim for punitive damages is based solely on its causes of action for misrepresentation, concealment, fraud, and product liability. The Court has sustained Cross-Defendant’s demurrer to those causes of action and accordingly the Court GRANTS Cross-Defendant’s motion to strike. The Court will reserve ruling on whether Cross-Complainant is entitled to leave to amend its claim for punitive damages until it has considered the parties’ supplemental briefing.



Cross-Defendant’s demurrer and motion to strike are continued to ____________. Cross-Defendant shall file and serve a supplemental brief not to exceed 10 pages in length no later than ___________, and Cross-Complainant’s response, which shall also not exceed 7 pages in length, shall be filed and served no later than _____________.