Judge Jill Feeney, Case Number: 23STCV21794, Date: 2024-02-15 Tentative Ruling

Plaintiff Angela Song (“Plaintiff”) alleges that she entered into a commercial lease agreement with Defendant Weingarten Nostat, Inc. (“Weingarten”) for real property located at 8000 Sunset Strip S.C. (the “Property”) to operate a Korean fried chicken restaurant. (Compl., ¶¶ 8, 10-11.) Plaintiff alleges that she expended significant sums of money renovating the Property to be able to operate the restaurant. (Compl., ¶ 11.) Shortly after opening the restaurant for business, the Property began to manifest problems with the gas, which led to multiple disruptions in operating the restaurant, including shutting down the restaurant on multiple occasions to address the gas problem or problems with the fire alarm sprinklers. (Compl., ¶¶ 13-15.) Plaintiff alleges she notified Defendant through its property management company, Defendant Kimco Realty Corporation (“Kimco”), and its employee/manager, Defendant Kindy Hohman (“Hohman”) , of these problems but they failed to address them. (Compl., ¶¶ 16-17.) Plaintiff further alleges that the property manager admitted Defendants were aware of the gas problems before the Property was leased to Plaintiff, but that they chose not to fix them to avoid the expense of repairs. (Compl., ¶ 17.)

Moving Parties indicate in their Reply that Plaintiff’s Opposition was not timely filed. The Court agrees. Based on the hearing date of February 15, 2023, Plaintiff’s Opposition was due February 1, 2024. (Code Civ. Proc., § 1005, subd. (b).) Plaintiff’s Opposition was not filed with the Court until February 7, 2024, almost one week after it was due. Nevertheless, the Court exercises its discretion to consider Plaintiff’s Opposition. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

Moving Parties also note in their Reply that Plaintiff engages in improper personal attacks against counsel for Moving Parties in Plaintiff’s Opposition. The Court again agrees. “Neither written submissions nor oral presentations should disparage the intelligence, ethics, morals, integrity or personal behavior of one’s adversaries, unless such things are directly and necessarily in issue.” (Ch. 3, Civil Division, Appendix 3.A, subd. (c)(2).) “Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.” (Id., subd. (d)(1).)

The Court further notes that Plaintiff’s opposition is 14 pages long, but contains no table of authorities or table of contents, as is required under Rule 3.1113, subdivision (f), of the California Rules of Court. (Cal. Rules of Court, rule 3.1113, subd. (f).)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

“A claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural, i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate form is being used by the individuals to escape personal liability, sanction a fraud, or promote injustice.” (Hennessey's Tavern, Inc. v. Am. Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359, internal citation omitted.)

The Court disagrees with Moving Parties’ contention. A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) Plaintiff’s alter ego allegations are not a separate cause of action, and therefore by themselves are not subject to demurrer.

“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. [Citation.]” (Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 285.) The scope of the implied covenant of quiet enjoyment may be limited by the terms of the lease agreement. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 511-512.) “[I]t is not necessary to show that the landlord acted with the subjective intent to compel the tenant to leave the property or deprive the tenant of quiet enjoyment. [Citation.] There is a ‘presumption that a landlord intends the natural and probable consequences of his acts; and where the acts of the landlord effectively deprive the tenant of the use and enjoyment of the premises, the intent to evict is implied from the character of the acts done.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300, internal citations omitted.)

Moving Parties contend the Complaint fails to allege sufficient facts to state a cause of action for breach of the implied duty of quiet enjoyment because: (1) Kimco is not a party to the lease (see Compl., Ex. 2) (the “Lease”); (2) Plaintiff does not allege that she complied with all the requirements of the Lease; (3) the scope of the implied duty of quiet enjoyment is limited under the terms of the Lease; and (4) Plaintiff fails to allege that Weingarten breached any covenants and promises expressly permitted under the Lease.

The Court agrees that the Complaint fails to allege facts showing that Kimco is a party to the Lease. (See Compl., Exs. 1, 2.) The Court finds the Complaint does not allege sufficient facts to demonstrate that Kimco is an alter ego of Weingarten. the Complaint contains no allegations to show that Kimco acted as an alter ego of Weingarten, such as identical officers and directors between the two entities. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.) Plaintiff’s allegations of alter ego liability are otherwise conclusory and insufficient. (See Compl., ¶ 6; Serrano v. Priest (1971) 5 Cal.3d 584, 591 [“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.”]) The Court further finds Plaintiff’s citation to Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, to be unpersuasive, as that case was decided in the context of an arbitration, in which different rules of evidence and pleading apply. (Id., at p. 1444 [“Consequently, the arbitrator was not constrained by any rigid rules in applying alter ego principles.”])

With respect to Weingarten, the Court finds the Complaint alleges sufficient facts to support a cause of action for breach of the implied duty of quiet enjoyment. The Complaint alleges the existence of the Lease between Plaintiff and Weingarten for the Property. (Compl., Exs. 1, 2.) The Complaint then alleges gas problems began occurring at the Property shortly after Plaintiff opened her restaurant for business. (Compl., ¶ 13.) The Complaint further alleges that Plaintiff notified Weingarten of the problems through Kimco and Hohman, but Weingarten failed to address the problems. (Compl., ¶ 16.) The Court finds unpersuasive Moving Parties’ arguments regarding the language of the Lease. The Complaint alleges that the Lease contains the following language:

Landlord covenants that Tenant, upon paying all Minimum Rent and other charges due under this Lease and performing and observing all of the other terms and conditions of this Lease to be performed or observed by Tenant, shall peacefully and quietly have, hold and enjoy the Leased Premises and the appurtenances thereto throughout the Lease Term without hindrance, ejection or molestation by Landlord.

The elements of a cause of action for private nuisance are: (1) the plaintiff proves an interference with his use and enjoyment of his property; (2) the invasion of the plaintiff's interest in the use and enjoyment of the land is substantial, i.e., causing the plaintiff to suffer substantial actual damage; (3) the interference with the protected interest is also unreasonable, i.e., of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. (Today's IV, Inc. v. Los Angeles Cnty. Metro. Transportation Auth. (2022) 83 Cal.App.5th 1137, 1176.)

Moving Parties contend the Complaint fails to allege sufficient facts to state a cause of action for nuisance. More specifically, they contend the Complaint does not allege how Moving Parties caused the alleged gas and water sprinkler issues, what the frequency and duration of these issues were, and that the Complaint otherwise contains conclusory allegations here. The Court disagrees.

The Complaint alleges that shortly after beginning restaurant operations at the Property, issues with the gas and water sprinklers arose. (Compl., ¶¶ 13-15.) It then alleges that it disrupted the restaurant operations, particularly with the sprinklers going off during business hours, which would soak the Property and render Plaintiff unable to serve customers. (Compl., ¶ 15.) The Complaint also alleges that the gas problems would sometimes disrupt business operations for hours or even days. (Compl., ¶ 14.) The Court finds these allegations demonstrate an interference with Plaintiff’s right to use and enjoy the Property, that they caused Plaintiff substantial actual damage by disrupting business operations, and that they were of such a nature, duration, or amount as to be unreasonable. (See Today’s IV, Inc., supra, 83 Cal.App.5th at p. 1176.)

“The general rule is that the landlord is not liable for injuries to the person or property of the tenant or his invitees caused by defects in the leased premises. This general rule of non–liability is an application of the doctrine of caveat emptor. In general, the lessee takes the premises as they are. There is no duty on the landlord to inspect with the object of locating latent defects nor to repair patent defects. [Citations.]

To this general rule there is a well–settled exception…: ‘The rule above stated, that the lessor is under no obligation to the lessee as regards the condition of the premises at the time of the demise, is subject to an exception to the effect that, if there is some hidden defect in the premises, or danger thereon, which is known to the lessor at the time of making the lease, but which is not apparent to the intending lessee, the lessor is bound to inform the latter thereof, and failing so to do, he is liable for injuries to the tenant arising therefrom.’”

Moving Parties contend the Complaint fails to allege sufficient facts to state a cause of action for negligence. Moving Parties contend the Lease limits Weingarten’s responsibility to maintain the Property, and that Plaintiff did not provide written notice to Weingarten regarding issues with the sprinklers, as is required under the Lease. Moving Parties further contend the Complaint fails to allege facts demonstrating that Weingarten owes Plaintiff a duty of care, and that Plaintiff fails to allege any facts demonstrating a failure to comply with any duty to maintain the Property. The Court disagrees.

The Complaint alleges that Plaintiff and Weingarten are in a landlord/tenant relationship, which does impose certain duties of care upon the landlord. (Compl., ¶ 8, Exs. 1, 2; see Shotwell, supra, 60 Cal.App.3d at pp. 309-310.) The Complaint further alleges that Defendants were aware of the problems with the Property but did not disclose to Plaintiff before entering into the Lease. (Compl., 17; see Shotwell, supra, 60 Cal.App.3d at pp. 309-310.) The Court finds this sufficient as to Defendant Weingarten.

However, as to Defendant Kimco, the Complaint does not allege that Kimco was a party to the Lease. (See Compl., Exs. 1, 2.) As also noted above, the Complaint does not adequately allege alter ego liability against Kimco. Accordingly, the Complaint fails to allege facts demonstrating that Kimco owed a duty of care to Plaintiff.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity requirement 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, internal citations omitted.)

Moving Parties demur to the Fourth Cause of Action for fraud on the grounds that it fails to allege sufficient facts to state a cause of action. More specifically, Moving Parties contend the Complaint fails to meet the heightened pleading requirements for a fraud claim. The Court agrees.

While the Complaint does allege that Defendants failed to disclose the existence of the underlying problems with the Property before Plaintiff executed the Lease, (Compl., ¶ 17), it fails to allege facts demonstrating Moving Parties’ duty to disclose such information to Plaintiff, (see LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 3326). It also fails to allege sufficient facts of the circumstances surrounding the allegedly fraudulent misrepresentations. More specifically, Plaintiff fails to allege how the misrepresentation was made, when it was made, where it was made, to whom it was made, and by what means it was made. (Cansino, supra, 224 Cal.App.4th at p. 1469.)

Additionally, there is an even greater pleading requirement imposed since Weingarten and Kimco are both corporate entities. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [“A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the 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.’ [Citation].”)

Moving Parties contend the Fifth Cause of Action for Restitution fails to state a cause of action because it is not a cause of action. The Court agrees. (See Munoz, supra, 195 Cal.App.4th at p. 661.) The Court further notes that Plaintiff’s Opposition does not address this argument, which the Court construes as a tacit admission that the argument is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10.)

The Unfair Competition Law (“UCL”), Business and Professions Code sections 17200, et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1008-1009.) The UCL covers a wide range of conduct, and section 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices and a practice may be deemed unfair even if not specifically proscribed by some other law. (Id. at p. 1009.) The UCL prohibits: (1) unlawful conduct; (2) unfair business acts or practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or misleading advertising; and (5) any act prohibited under sections 17500-77.5. UCL actions based on “unlawful” conduct may be based on violations of other statutes. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)

Moving Parties contend the Complaint fails to allege facts sufficient to state a cause of action for Unfair/Unlawful/Fraudulent Business Practice. This contention is based on the premise that the five preceding causes of action fail and therefore this cause of action also must necessarily fail. Moving Parties further contend that two isolated incidents are not sufficient to state a claim for unfair business practices and that the Complaint does not allege how the alleged misconduct is forbidden by any law. The Court agrees.

The Unfair Business Practices act prohibits specific “practices that the legislature has determined constitute unfair trade practices. [Citation.]” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.) The Complaint does not allege sufficient facts to show which of Defendants’ alleged actions constitute an unfair trade practice.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Moving Parties demur to the Seventh Cause of Action for Breach of Agreement, i.e., the Lease, on the grounds that it fails to allege sufficient facts to state a cause of action. Moving Parties’ arguments here were combined with their arguments regarding the First Cause of Action for Breach of Implied Duty of Quiet Enjoyment, which the Court incorporates by reference here. The Court further notes Moving Parties’ argument that the Complaint does not allege Plaintiff complied with the written notice requirement of the Lease. The Court agrees.

Section 21.01 of the Lease provides that, “[a]ny notice which may or shall be given under the terms of this Lease shall be in writing and sent to the Notice Address of either Landlord or Tenant, by national courier service or certified mail.” (Compl., Ex. 2, § 21.01.) The Complaint alleges notifying Defendant Hohman of the problems with the Property via email rather than by national courier service or certified mail at the address specified in the Lease. (Compl., ¶ 16.) Section 15.06 of the Lease further specifies that Plaintiff must give Weingarten written notice of any alleged defaults under the Lease before initiating legal action. (Compl., Ex. 2, § 15.06.)

[I]n considering third party beneficiary contract claims, a court should “carefully examine[ ] the express provisions of the contract at issue, as well as all of the relevant circumstances under which the contract was agreed to, in order to determine not only (1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.” [Citations.] “All three elements must be satisfied to permit the third party action to go forward.” [Citation.]

Moving Parties demur to the Eighth Cause of Action for Breach of Agreement – Third Party Beneficiary on the grounds that it fails to state a cause of action. Moving Parties contend that it is unclear what the Complaint means when it alleges that Kimco and Weingarten entered into an agreement for the management of the Property to provide “proper services.” (Compl., ¶ 56.) Moving Parties further contend that the Complaint’s allegations of breach here are conclusory and unsupported. The Court disagrees.

The Complaint admittedly provides few allegations concerning the terms and conditions of this alleged contract between Kimco and Weingarten. (See Compl., ¶¶ 55-59.) However, considering the other allegations in the Complaint, the Court is able to infer that Plaintiff is alleging that Kimco and Weingarten entered into a property management services agreement wherein Kimco would provide those services for tenants of properties owned and managed by Weingarten, which would necessarily include the Property in this action and then Plaintiff as the tenant of that Property. (Code Civ. Proc., § 452 [“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”])

The Court is able to further infer that Kimco failed to perform under that property management services agreement, as evidenced by Moving Parties’ alleged failure to rectify the gas and sprinkler problems at the Property. (See Compl., ¶¶ 15-17.) The primary purpose of property management agreements is generally to maintain the subject properties, which are often leased out to tenants like Plaintiff. It stands to reason that Plaintiff was within the class of persons intended to be benefitted from the property services management agreement between Kimco and Weingarten. (See Civ. Code § 1559; Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 1020, 1040 [contract need not identify beneficiary by name; third party beneficiary may recover as long as they are within the class of persons intended to be benefited from the contract].)

The elements of a cause of action for intentional interference with prospective economic interests are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; 4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (Golden Eagle Land Inv., L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 430.)

Moving Parties contend the Ninth Cause of Action for Intentional Interference with Prospective Economic Interests fails to allege facts sufficient to constitute a cause of action. Moving Parties contend the Complaint fails to allege facts demonstrating a probable future economic benefit, that Moving Parties intended to disrupt any relationship, that Moving Parties caused Plaintiff economic harm, or that the alleged interference was wrongful beyond the alleged interference itself. The Court agrees.

The Complaint fails to allege any facts regarding an identifiable buyer. It is not enough for Plaintiff to allege a vague class of persons like “customers”. (Compl., ¶ 15; see Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 527 [“Without an existing relationship with an identifiable buyer, WCA's expectation of a future sale was ‘at most a hope for an economic relationship and a desire for future benefit.’ [Citation.]”)

The implied covenant of good faith and fair dealing “is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.’ [Citation.]” (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 806.) “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.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

Moving Parties contend the Complaint fails to allege facts sufficient to state a cause of action for Breach of the Implied Duty of Good Faith and Fair Dealing. Moving Parties’ arguments here are the same as those made with respect to the First Cause of Action and Seventh Cause of Action.

Although not raised by the parties in their respective briefs, the Court notes that the allegations for this cause of action are predicated on the same facts as the Seventh Cause of Action for Breach of Agreement. (See Compl., ¶ 66-70.) This cause of action is comprised of conclusory allegations, which the Court disregards. (Serrano, supra, 5 Cal.3d at p. 591.) This cause of action is otherwise identical to Plaintiff’s Seventh Cause of Action and adds nothing new. (See Careau & Co., supra, 222 Cal.App.3d at p. 1395.) It is also defective as to Kimco individually because Kimco is not a party to the Lease, (see Compl., Exs. 1, 2), and the Complaint otherwise fails to allege facts demonstrating alter ego liability for the reasons set forth above.

“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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Given the Court sustaining the demurrer to the Tenth Cause of Action for failure to state a cause of action, the Court declines to address the uncertainty grounds. With respect to the First Cause of Action, the Court does not find it is subject to demurrer for uncertainty, as the allegations of the Complaint are sufficiently intelligible for the Court to understand what Plaintiff is alleging, and Moving Parties should be able to respond. (See Compl., ¶¶ 19-23; Lim, supra, 18 Cal.2d at p. 882; see also Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.app.5th 841, 848 fn. 3 [“’demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ [Citation.]” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)