Judge Joel R Wohlfeil, Case 37-2023-00026461-CU-BC-CTL 2023-10-06 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00026461-CU-BC-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 04, 2023

10/06/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00026461-CU-BC-CTL FOLEY VS BRE-FMCA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/14/2023

1. The special and general Demurrer (ROA # 14, 17) of Defendants, BRE-FMCA, LLC ('BRE') and ESSEX PROPERTY TRUST, INC. ('Essex') (collectively 'Defendants') to the Complaint by Plaintiff THOMAS FOLEY's ('Plaintiff'), is OVERRULED IN PART and SUSTAINED IN PART.

The special Demurrer for uncertainty is OVERRULED to each of the disputed causes of action.

The special Demurrer to cause of action 1 for failing to allege whether the contract is written or oral is SUSTAINED with leave to amend.

The general Demurrer is OVERRULED to causes of action 1 and 5.

The general Demurrer is SUSTAINED to causes of action 2 and 4. Leave to amend is not permitted to cause of action 2, and leave is permitted to cause of action 4.

As limited by this ruling, Plaintiff is permitted leave to file and serve a First Amended Complaint within twenty (20) days of this hearing.

This ruling is premised on the analysis set forth below: SPECIAL DEMURRER FOR UNCERTAINTY As to each of the disputed causes of action, the special Demurrer for uncertainty is overruled. The disputed causes of action are not fatally ambiguous and unintelligible. Code Civ. Proc. 430.10(f).

1st COA: BREACH OF CONTRACT In an action on a contract, a special Demurrer will lie when 'it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.' Code Civ. Proc. 430.10(g). This special Demurrer is sustained because the Complaint does not allege whether this claim is premised on a written lease agreement.

Regarding the general Demurrer, a written contract may be pleaded either by its terms, set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated by reference, or by its legal effect. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 993.

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3007013 CASE NUMBER: CASE TITLE: FOLEY VS BRE-FMCA LLC [IMAGED] 37-2023-00026461-CU-BC-CTL In order to plead a contract by its legal effect, Plaintiff must allege the substance of its relevant terms.

Id.

In this case, the Complaint sufficiently alleges the substance of the single relevant term: Plaintiff would not be charged for normal wear and tear. The general Demurrer is overruled.

2nd COA: DECLARATORY RELIEF Plaintiff does not oppose this aspect of the Demurrer. The general Demurrer to this cause of action is sustained without leave to amend.

4th COA: EXTORTION Penal code sections 518, et seq. sets forth the crime of extortion. These code sections do not provide for a private right of action. A private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right to sue for damages.

Vikco Ins. Services, Inc. v. Ohio Indem. Co. (1999) 70 Cal. App. 4th 55, 62 (Insurance Code statute regulating agency and brokerage contracts). If the Legislature intends to create a private cause of action courts generally assume it will do so directly, in clear, understandable and unmistakable terms.

Id. at 62, 63.

In this action, the subject statutory scheme defines a garden variety crime, and does not include language creating a private civil action. The general Demurrer is sustained on this basis. Plaintiff is permitted leave to amend to allege a different civil claim (e.g., a fraud claim based on the same facts), if possible.

The opposition cites Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217. However, this opinion involves a different claim in which Legislative intent to create a private right of action was 'made abundantly clear' via the existence a civil statute of limitations. Id. at 1225.

5th COA: VIOLATION OF BUSINESS & PROFESSIONS CODE SECTION 17200 The Complaint sufficiently alleges unfair and unlawful conduct via the wrongful security deposit charges.

The Complaint alleges standing to sue on behalf of the general public because Plaintiff 'suffered injury in fact and has lost money or property as a result of the unfair competition.' Bus. & Prof. Code 17204.

The opinion in Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903 does not apply because that case did not involve a claim on behalf of the general public. See Id. at 928.

2. The Motion (ROA # 12, 19) of Defendants, BRE-FMCA, LLC ('BRE') and ESSEX PROPERTY TRUST, INC. ('Essex') (collectively 'Defendants') for an Order striking portions of the Complaint by Plaintiff THOMAS FOLEY ('Plaintiff'), is DENIED.

The request to strike the claim for punitive damages alleged at paragraph 38 and within the prayer for relief at page 12, line 22 is denied as moot because the Demurrer to cause of action 4 has been sustained.

The claim for attorney fees is supported by the reference to Code of Civil Procedure section 1021.5.

Complaint at ¶¶ 46 and 47. Whether attorney fees under the private attorney general doctrine are appropriate (i.e., significant public benefit conferred) is a question of fact that cannot be determined via this Motion.

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