Judge: Helen Zukin, Case: 20SMUD00869, Date: 2022-08-08 Tentative Ruling
Case Number: 20SMUD00869 Hearing Date: August 8, 2022 Dept: 207
Background
Plaintiff American Financial Center, Inc. (“Plaintiff”)
brings this action against Defendants Birgitta Lauren and Eric Yohan aka Eric
Knipe (collectively “Defendants”). This case was originally filed as an
unlawful detainer action concerning the real property located at 2010 S.
Beverly Blvd., #101, Los Angeles, California 90025. Plaintiff obtained a
default judgment against Defendants for possession of the premises. Defendants
moved to vacate or set aside this judgment, which was denied by the Court on August
9, 2021.
On October 18, 2021, Plaintiff moved to reclassify the
action as an unlimited civil action and for leave to file an amended complaint.
The motion was granted by the Court and on February 23, 2022, Plaintiff filed
the operative First Amended Complaint (“FAC”) alleging causes of action for
breach of contract, breach of the implied covenant of good faith and fair
dealing, and waste on real property. Defendants bring this demurrer to each of
these causes of action pursuant to Code Civ. Proc. §§ 430.10(e) and 430.10(f),
arguing the allegations in the FAC fail to state a cause of action against them
and are uncertain.
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.)
A special demurrer for uncertainty under Section 430.10(f) is disfavored
and will only be sustained where the pleading is so unintelligible a defendant
cannot reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even
if the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
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.)
Analysis
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.) Defendants have
not filed such a declaration and thus have not complied with the requirements
of Code Civ. Proc. §§ 430.41(a), 435.5(a). Nevertheless, the Court will proceed
to the merits of Defendants’ demurrer. (Code Civ. Proc. §§ 430.41(a)(4),
435.5(a)(4).)
2. Timeliness
of Opposition
Defendants argue the last day for
Plaintiff to file and serve an opposition to their demurrer was July 14, 2022,
pursuant to Code Civ. Proc. § 1005(b), and thus Plaintiff’s filing and service
of its opposition on July 18, 2022, was untimely. The Court agrees.
Defendants urge the Court to
“strike the entire Opposition and consider that Plaintiff has thus failed to
oppose and to sustain Defendants’ Demurrer without leave to amend.” (Reply at
3.) However, the Court is not free to disregard Plaintiff’s opposition
simply because it is untimely. California Rules of Court, rule 3.1300(d)
expressly prohibits the Court from doing so: “No paper may be rejected for
filing on the ground that it was untimely submitted for filing. If the court,
in its discretion, refuses to consider a late filed paper, the minutes or order
must so indicate.” Defendants do not claim they suffered any prejudice as a
result of the untimeliness of Plaintiff’s filings. Defendants filed a reply
responding to the substance of Plaintiff’s opposition and did not move for an
extension of their time to reply. The Court in its discretion will consider the
arguments raised by Plaintiff in the interest of judicial economy.
3. Breach of
Contract
To state a cause of action for
breach of contract, Plaintiff must be able to establish “(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.” (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Defendants argue Plaintiff’s claim
for breach of contract is deficiently pled as the FAC does not state whether
the contract alleged is written, oral, or implied, and does not set out the
material terms of the contract. The Court agrees. Plaintiff’s breach of
contract cause of action is stated at paragraphs 17-37 of the FAC. Paragraph 17
incorporates the allegations of paragraph 1-16. Paragraphs 1-37 of the FAC do
not allege whether the purported contract was written or oral. Paragraph 39
indicates Plaintiffs are alleging the contract was oral, not written, but this
reference to “an oral contract as described above,” standing alone, is not
sufficient. While Defendants’ argument is more properly brought pursuant to
Code Civ. Proc. § 430.10(g) (“In an action founded upon a contract, it cannot
be ascertained from the pleading whether the contract is written, is oral, or
is implied by conduct”) rather than under sections 430.10(e) or 430.10(f), the
Court nonetheless agrees the claim is not sufficiently stated.
Further, the Court finds Plaintiff
failed to include sufficient factual allegations concerning the terms of the
contract and the parties’ performance. Plaintiff alleges Defendants rented the
subject property (FAC at ¶ 6), the fair market value of the rent for the
property is $3,000 per month (id at ¶ 7), and one of the Defendants
breached the rental contract by failing to pay $3,000 per month for several
months (id at ¶¶ 18-32). However, Plaintiff does not allege Defendants
ever agreed to pay $3,000 per month rather than some other amount. Plaintiff
thus has not alleged what terms of the contract Plaintiffs are alleged to have
breached. Defendants also point out Plaintiff alleges a singular “Defendant”
breached the contract without specifying which Defendant is alleged to have
breached. (FAC at ¶¶ 18-32.) The FAC does not specify whether the cause of
action for breach of contract is being brought against one or both of
Defendants in violation of California Rules of Court, rule 2.112, which
requires causes of action to “specifically state … (4) The party or parties to
whom it is directed (e.g. ‘against defendant Smith’).” Plaintiff must clarify which
parties this cause of action is being alleged and against as well as who is alleged
to have breached the contract.
The Court finds this is
information which Plaintiff can provide by way of amendment. Accordingly, the
Court SUSTAINS Defendants’ demurrer to this cause of action with leave to
amend.
4. Breach of
Implied Covenant of Good Faith and Fair Dealing
“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 … [T]he
only justification for asserting a separate cause of action for breach of the
implied covenant is to obtain a tort recovery.” (Id. at 1394-1395.) To
recover in tort for breach of the implied covenant, the defendant must “have
acted unreasonably or without proper cause.” (Id. at 1395 [citations and
italics omitted].)
“Thus, allegations which assert
such a claim must show that the conduct of the defendant, whether or not it
also constitutes a breach of a consensual contract term, demonstrates a failure
or refusal to discharge contractual responsibilities, prompted not by an honest
mistake, bad judgment or negligence but rather by a conscious and deliberate
act, which unfairly frustrates the agreed common purposes and disappoints the
reasonable expectations of the other party thereby depriving that party of the
benefits of the agreement. Just what conduct will meet these criteria must be
determined on a case-by-case basis and will depend on the contractual purposes
and reasonably justified expectations of the parties.” (Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)
Plaintiff’s cause of action for
breach of the implied covenant of good faith and fair dealing is based on the
same acts as Plaintiff’s claim for breach of contract. Plaintiff alleges the
contract was breached by Defendants’ failure to pay rent (FAC at ¶¶ 18-32), and
Plaintiff alleges the Defendants breached the implied covenant of good faith
and fair dealing by “fail[ing] to pay their contractual monthly rental amount,
for base rent to Plaintiff” (id at ¶ 41.) Plaintiff does not allege any
unreasonable or improper conduct beyond this failure to pay rent. Accordingly,
the Court finds Plaintiff’s cause of action for breach of the implied covenant
is duplicative and SUSTAINS Defendant’s demurrer to this cause of action. As
Plaintiff indicates this cause of action can be cured with further amendment,
the Court will sustain the demurrer with leave to amend.
5. Waste on
Real Property
Waste is an unlawful
act or omission of duty by a person in possession of real property that results
in an injury to the property. (Schellinger Brothers v. Cotter (2016) 2
Cal.App.5th 984, 1000; Cal. Civ. Proc. Code, § 732.) Waste occurs only when the
injury to real property is “sufficiently substantial and permanent.” (Avalon Pacific—Santa Ana, L.P. v. HD Supply
Repair & Remodel, LLC
(2011) 192 Cal.App.4th 1183, 1215.)
“‘Permanent’ does not inflexibly mean eternal; instead, ‘permanent’
means a degree of irremediableness sufficient to cause injury to a reversion
interest that will not become a possessory interest until the end of the lease
term.” (Id.)
Defendants claim Plaintiff has not
sufficiently pled a cause of action for waste. Plaintiff argues it stated a
cause of action for waste “as Defendants damaged the real property as set forth
in Paragraph 45 of the First Amended Complaint.” (Opposition at 3.) The Court
agrees with Defendants. The FAC does not allege any substantial or permanent
injury to real property. The FAC alleges three factual bases for Plaintiff’s
claim of waste: (1) the property required professional cleaning after
Defendants departed, (2) installation of child safety clamps, the removal of
which required refinishing cabinets and drawers, and (3) the property needed to
be repainted. (FAC at ¶ 45.) Plaintiff does not allege this damage was in any
way permanent and indeed Plaintiff alleges they have already been fully
repaired by Plaintiff. (Id. at ¶ 46.)
Plaintiff asserts it “is prepared
to provide further additional facts and clarity to its First Amended Complaint.”
(Opposition at 4.) Accordingly, the Court SUSTAINS Defendants’ demurrer but
will grant Plaintiff leave to amend to allege substantial or permanent injury
to the property.
6. Motion to
Strike
Defendants’ demurrer is captioned
as including a motion to strike and Defendants’ notice states they “move to
strike all Damages prayed for in the First Amended Complaint since all causes
of action are fatally defective and must be dismissed.” (Notice at 3.) However,
Defendants have filed no memorandum of points and authorities offering any
argument as to this motion to strike and Defendant’s demurrer makes no
reference to a motion to strike. The Court finds Defendants have not asserted
any basis to strike Plaintiff’s claimed damages. Further, the Court has
sustained Defendants’ demurrer to each cause of action with leave to amend,
which moots Defendants’ motion to strike the causes of action as “fatally
defective.’ Accordingly, Defendants’ motion to strike is DENIED.
Conclusion
Defendants’ demurrer to Plaintiff’s first, second, and third
cause of action is SUSTAINED with 30 days’ leave to amend. Defendants’ motion
to strike is DENIED.