Judge: Helen Zukin, Case: 21SMCV01223, Date: 2022-10-12 Tentative Ruling
Case Number: 21SMCV01223 Hearing Date: October 12, 2022 Dept: 207
Background
This case arises from Plaintiff Randy Zasloff’s
(“Plaintiff”) rental of a storage unit. Plaintiff brings this action against
Public Storage Inc., PS LPT Properties Investors, Public Storage Business
Parks, and PS Business Parks L.P. (collectively, “Defendants”). Plaintiff’s
operative complaint is the Third Amended Complaint (“TAC”) filed on July 8,
2022. Defendants previously brought demurrers and motions to strike Plaintiff’s
First Amended Complaint and Second Amended Complaint (“SAC”) which were
sustained and granted in part. Specifically, the Court sustained Defendants’
demurrer to the cause of action for fraud in the SAC and granted Defendants’
motion to strike the claim for punitive damages asserted in the SAC.
Defendants bring the instant demurrer to the cause of action
for fraud asserted in the TAC for failure to state a cause of action and
uncertainty under Code Civ. Proc. § 430.10(e)-(f). Defendants also move to
strike Plaintiffs’ claims for punitive damage.
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 that 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 satisfied this meet and confer
requirement. (Casey Decl. at ¶ 3.)
2. Timeliness
Plaintiff argues Defendants’
demurrer is untimely because Defendants failed to satisfy their meet and confer
obligations under Code Civ. Proc. § 430.41(a)(2). Section 430.41(a)(2) provides
in pertinent part:
The parties
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.
Code Civ. Proc. § 435.5(a)(2)
provides an identical procedure with respect to motions to strike.
Plaintiff’s TAC was filed on July
8, 2022. Pursuant to Code Civ. Proc. § 430.40(a)
Defendants had 30 days to respond to the TAC. However, as the TAC was served by
mail on Defendants, this 30-day period was extended by a further five calendar
days. (C.C.P. § 1013(a).) Accordingly, Defendants’ response to the TAC was due
by August 12, 2022, and the deadline to meet and confer as required by sections
430.31(a)(2) and 435.5(a)(2) was August 7.
On August 10, 2022, Defendants
filed a declaration of counsel explaining that Defendants were not able to meet
and confer by August 7 because counsel was traveling between July 17 and August
7, and completely offline between July 28 and August 5. (August 10 Casey Decl.
at ¶ 3.) Counsel was also engaged in trial preparation on multiple matters for
the month of July. (Id.) While counsel was not able to meet and confer
by the August 7 deadline, a telephonic meet and confer did occur on August 8. (Id.)
On such facts, the Court finds
Defendants’ demurrer and motion to strike are timely. On or before the day
Defendants’ response to the TAC was due, Defendants filed a declaration explaining
why they were unable to meet and confer with Plaintiff within the time limit
proscribed by sections 430.41(a)(2) and 435.5(a)(2). The filing of this
declaration triggered an automatic 30-day extension of Defendants’ time to file
the demurrer and motion to strike, putting the filing deadline for each at
September 12. Defendants timely filed the demurrer and motion to strike on
September 12. The Court thus denies Plaintiff’s request to disregard the
demurrer as untimely.
3. Fraud
To establish a fraud cause of
action, plaintiffs must allege (1) misrepresentation, (2) knowledge of falsity,
(3) intent to defraud or to induce reliance, (4) justifiable reliance, and (5)
resulting damage. (See Engalla v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 974.) In California, fraud must be pled with specificity. (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity
demands that a plaintiff plead facts which show how, when, where, to whom, and
by what means the representations were tendered.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469.) Because a corporation can only
act through its agents, a plaintiff must “allege the names of the persons who
made the allegedly fraudulent representations, their authority to speak, to
whom they spoke, what they said or wrote, and when it was said or written.” (Mason
v. Drug, Inc. (1939) 31 Cal.App.2d 697, 703).
Defendants argue the TAC fails to cure
the defects identified in the Court’s ruling on Defendants’ demurrer to the SAC
and the TAC does not allege any misrepresentation made by Defendants with the
requisite knowledge of falsity.
In ruling on the SAC, the Court
found Plaintiff’s fraud allegations stemmed from alleged misrepresentations
regarding the security gate and presence of around-the-clock attendant or
manager. (June 8 Order at 3.) As to the security gate, the Court found
Plaintiff had failed to identify any knowingly false representation made by Defendants
as Plaintiff admitted the security gate was functioning as advertised when he
signed the lease, and when the gate later broke Defendants admitted it. (Id.)
Plaintiff’s TAC does not add any new allegations regarding the security gate,
rather it merely repeats the allegations in the SAC that Defendants
misrepresented the security gate was broken the day before July 26, 2019, one
of Defendants’ employees told Plaintiff the gate had been broken since she had
started working at the storage facility, and Defendants did not notify tenants
when the security gate broke. The Court has already determined these
allegations to be insufficient to state a cause of action for fraud against
Defendants, and the same result follows here for the same reasons. (Id.)
As to the alleged
misrepresentations concerning the presence of an around-the-clock attendant,
the Court previously found the SAC alleged a misrepresentation made on July 26
as to the presence of such an attendant. However, the Court noted Plaintiff had
not sufficiently alleged the essential elements of knowledge, intent, reliance,
or damage:
The SAC does
identify an alleged misrepresentation regarding the presence of an around-the-clock
attendant or manager. However, it does not sufficiently allege the July 26
representation regarding the presence of an on-site manager was made with
knowledge of its falsity or with an intent to deceive or induce Plaintiff. The
SAC further fails to establish any resulting damage from the July 26 statement.
The only damages claimed by Plaintiff in connection with his fraud claim is the
theft of items from his unit. However, the SAC states this theft occurred on or
before July 23, 2019, or at least three days before the alleged
misrepresentation was made.
(Id. at 4.) The Court finds
the TAC fails to cure the defects identified in the Court’s prior order. The
only new allegation in the TAC regarding the presence of an on-site manager is
the claim that “When Public Storage told Plaintiff about an onsite (security)
manager living on the premises and alarms that give Public Storage
notifications, that was deceiving and a misrepresentation and Concealment of
facts.” (TAC at 3.) Plaintiffs’ conclusory characterization of the alleged July
26 misrepresentation as deceiving and a concealment of facts is insufficient to
satisfy Plaintiff’s obligation to plead the essential elements of knowledge,
intent, reliance, or harm. Accordingly, the Court finds Plaintiff has failed to
sufficiently state a cause of action for fraud in connection with the presence
of an around-the-clock manager.
The same is true with respect to
the other allegations of fraud in the TAC. The TAC alleges “On July 25th
Defendant misrepresented there were no claims against Public Storage. Plaintiff
finds o[u]t there are claims and Public Storage management knew.” (TAC at 3.)
As with the allegations concerning the presence of a manager, this alleged
misrepresentation occurred after the alleged theft of Plaintiff’s unit on July
23, and Plaintiff has not established how the elements of reliance and harm
could be satisfied for such statement. Accordingly, this allegation is
insufficient to state a cause of action for fraud against Defendants.
The TAC includes additional
allegations which do not sound in fraud, as follows:
On July 26th
Public Storage management tells Plaintiff that when items are missing from a
tenants storage unit it’s not Public Storage's problem. (Duty of care)
…
Plaintiff
contends that Fraud occurred when Plaintiff was denied access to his unit from
August 2nd 2019 to August 5th 2019 while the Plaintiff was fully paid up.
(TAC at 3-4.) Such allegations do
not constitute fraudulent misrepresentations or concealment, and even if they
would still be deficient as Plaintiff cannot establish the elements of reliance
or harm from such conduct occurring after the alleged theft had already
occurred. Plaintiff identifies no other purported damage he suffered from such
actions.
The Court thus finds the TAC fails
to state facts sufficient to constitute a cause of action for fraud and
Defendants’ demurrer to the cause of action for fraud is SUSTAINED.[1]
4. Punitive
Damages
Defendants contend the TAC fails
to state facts showing Defendants can be held liable for punitive damages. The
Court agrees. As set forth above, the TAC does not sufficiently establish a
claim for fraud, which is the only potential basis for a claim for punitive
damages against Defendants. Similarly, the TAC is silent as to whether
Defendants had advance knowledge of the unfitness of any employee or otherwise
authorized or ratified the allegedly wrongful conduct of any employee such as
to support a claim of punitive damages against them. Defendants’ motion to
strike Plaintiff’s claim for punitive damage is GRANTED.
5. Leave to
Amend
Defendants ask the Court to
sustain their demurrer and grant their motion to strike without leave to amend.
Plaintiff bears the burden of
demonstrating that it can cure the defects in the Complaint through further
amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff’s oppositions to Defendants’ demurrer does not
make any showing that any of the defects identified above could be cured by
further amendment. As set forth
above, the Court is sustaining Defendants’
demurrer to Plaintiff’s cause of action for fraud on the same bases on which it
sustained Defendants’ prior demurrers to this same cause of action. The Court
is mindful Plaintiff is proceeding in this case in propria persona, however
this alone does not excuse Plaintiff’s failure to cure defects in his pleading.
As a pro per litigant, Plaintiff is ultimately “entitled to the same, but no greater, consideration than other
litigants and attorneys.... Further, the in propria persona litigant is held to
the same restrictive rules of procedure as an attorney.” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113,
1125–1126.) “A litigant has a right to act as his own attorney [citation] ‘but,
in so doing, should be restricted to the same rules of evidence and procedure
as is required of those qualified to practice law before our courts; otherwise,
ignorance is unjustly rewarded.’ [Citation.]” (Lombardi v. Citizens Nat'l
Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)
The TAC was Plaintiff’s fourth
opportunity to state a cause of action for fraud against Defendants. Plaintiff
has been given ample prior opportunity to state a viable cause of action
against Defendants for fraud and punitive damages with specific guidance from
the Court as to the deficiencies in his pleading and has failed to do so. (See Krawitz
v. Rusch (1989) 209 Cal.App.3d 957, 967 [denying leave to amend is proper
where plaintiff “was granted numerous opportunities to amend her complaint and
yet remained unable to successfully state a cause of action”].)
On such facts, the Court finds no
basis to conclude Plaintiff would be able to state sufficient factual
allegations to constitute a cause of action against Defendants for fraud if
given leave to amend again, and accordingly the Court will not grant Plaintiffs
further leave to amend his cause of action for fraud or to assert a claim
against Defendants for punitive damages.
Defendants point out the TAC
asserts only one cause of action for fraud and does not contain the causes of
action for negligence or breach of contract which were asserted in the SAC.
Plaintiff argues this was an inadvertent error based on his misunderstanding of
the Court’s prior order on Defendants’ demurrer to the SAC. (Opp. at 2.)
Plaintiff asks the Court to strike the TAC and reinstate the SAC. The Court
declines Plaintiff’s request as the SAC was found to be deficiently pled as to
Plaintiff’s claims for fraud and punitive damages. However, the Court will
instead grant Plaintiff 30 days to file a Fourth Amended Complaint to reassert
the causes of action for negligence and breach of contract contained in the
SAC. The Fourth Amended Complaint is limited to the allegations and causes of
action asserted in the SAC except that it must remove Plaintiff’s cause of
action for fraud and Plaintiff’s claim for punitive damages.
Conclusion
Defendants’ demurrer to the Third Amended Complaint is
SUSTAINED. Defendant’s motion to strike is GRANTED. Plaintiff is granted 30
days’ leave to file a Fourth Amended Complaint reasserting the causes of action
for breach of contract and negligence contained in the Second Amended Complaint
which were inadvertently omitted from the Third Amended Complaint, but
Plaintiff may not use the Fourth Amended Complaint to assert a cause of action
for fraud or claim for punitive damages against Defendants. Moving parties to
give notice.