Judge: Holly J. Fujie, Case: 20STCV45298, Date: 2023-01-06 Tentative Ruling

Case Number: 20STCV45298    Hearing Date: January 6, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Parkview on the Park, LP (“Parkview”), EAH Community Housing, Inc. (“EAH”), and Susanna Serobyan (“Serobyan”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

            The Court has considered the moving, opposition, and reply papers.

BACKGROUND

This action arises out of a landlord/tenant relationship.  The currently operative second amended complaint (the “SAC”) alleges: (1) assault; (2) fraud; (3) breach of lease; and (4) negligence.

Moving Defendants filed a demurrer to the SAC (the “Demurrer”) on the grounds that the SAC: (1) is uncertain, ambiguous, and unintelligible; and (2) fails to state facts sufficient to constitute causes of action against Moving Defendants.  Moving Defendants also filed a motion to strike (the “Motion”) portions of the SAC related to remedies.

REQUEST FOR JUDICIAL NOTICE

Moving Defendants’ Request for Judicial Notice is GRANTED.

DEMURRER

Meet and Confer

            The meet and confer requirement has been met for both the Demurrer and Motion.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  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.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

First Cause of Action

The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

The SAC fails to state sufficient facts to allege assault.  It is not clear what conduct Plaintiff is alleging to have occurred, aside from a vague allegation of “verbal assault.”  (See SAC 2.)  If Plaintiff is basing this cause of action on mere words, she must allege specifically how those words come within the legal definition of assault.  The Court therefore SUSTAINS the Demurrer to the first cause of action with 20 days leave to amend.

Second Cause of Action

The elements of fraudulent concealment are: (1) the defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff suffered damage.  (Boschma v. Home Loan Center, Inc (2001) 198 Cal.App.4th 230, 248.)  There are four circumstances that impose a duty on the defendant such that nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant has exclusive knowledge of material facts not known to plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.  (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-11.) 

The elements of intentional misrepresentation are: (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.  (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 428.)  Each element must be alleged with particularity.  (Id.)  The facts required to be pled are facts that show how, when, where, to whom, and by what means the representations were tendered.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

            The SAC appears to allege that Moving Defendants failed to disclose and misrepresented Plaintiff’s rent obligations.  (See SAC p. 3.)  The SAC does not clearly set forth the remaining elements of a fraud-based cause of action.  The Court therefore SUSTAINS the Demurrer to the second cause of action with 20 days leave to amend. 

Third Cause of Action

The elements of a claim for breach of contract are: (1) the contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damage to plaintiff therefrom.  (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)  A plaintiff may plead the legal effect of the contract rather than its precise language.  (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-99.) 

            The SAC references a specific provision of a lease agreement that Moving Defendants allegedly violated but does not state the terms of that provision or its legal effect.  In addition, the SAC does not include a copy of a lease agreement.  The Court therefore finds that the alleged breach is not sufficiently pleaded and the Court SUSTAINS the Demurrer to the third cause of action with 20 days leave to amend.

Fourth Cause of Action

            The elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) 

            The Court is unable to ascertain the nature of the negligence allegations in the SAC.  The Court therefore SUSTAINS the Demurrer to the fourth cause of action with 20 days leave to amend.

MOTION TO STRIKE

A motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (Code Civ. Proc. § 436.)

            In light of the Court’s ruling on the Demurrer, the Motion to strike is MOOT.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 6th day of January 2023