Judge: Jon R. Takasugi, Case: 22STCV37717, Date: 2023-06-23 Tentative Ruling

Case Number: 22STCV37717    Hearing Date: June 23, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Pro Tech’s demurrer is SUSTAINED, WITH 20 DAYS LEAVE TO AMEND. In light of this ruling, Pro Tech’s motion to strike is MOOT.

            On 12/1/2022, Plaintiffs KBBK, LLC, Hayat Khoubian individually and as trustee of fhe Eshagh and Hayat Trust, Eshagh Khoubian, individually and as trustee of the Eshagh and Hayat Trust, and the Eshagh and Hayat Trust filed suit against 58 Defendants, alleging: (1) fraud; (2) negligent misrepresentation; (3) negligence; (4) breach of contract; (5) breach of warranty; (6) negligence; (7) breach of contract; (8) strict products liability; (9) negligence/strict products liability; and (10) civil remedies for Penal Code sections 484 and 496.

            Now, Defendant Pro Tech Fire Alarm and Communication Systems, Inc. (Pro Tech) demurs to the Complaint.

Discussion

            Pro Tech argues that Plaintiffs’ Complaint is uncertain and fails to set forth sufficient facts to state a claim.

            The Court agrees.

            Here, Plaintiffs allege generally that Pro Tech “engaged in malfeasance relative to the engineering, design, installation (and other activities) of the alarm and related systems, including smoke detectors, fire sprinklers, strobe horns, and engaged in malfeasance in various ways. . .” and “engaged in negligence and malfeasance in construction and related activities, in design and related activities, in providing product and material to the Subject Project, including but not limited to: …the PRO TECH DEFENDANTS … continued construction and installation, and engaged in other activities…” (Complaint ¶¶ 216, 281.)

            As noted by Pro Tech, these allegations, distilled, allege that Pro Tech engineered, designed or installed the alarm and related systems, including smoke detectors, fire sprinklers, strobe horns, and provided product and material and entered into a new contract to provide the same. However, the allegations contain no actual facts which could show negligence or malfeasance: “[t]he Complaint is silent as to what PRO TECH may have allegedly done wrong, or what may be claimed defective about the alarm and related systems that they allegedly installed….” (Motion, 7: 17-24.)

            Moreover, the Complaint fails to identify any contract at issue to which Pro Tech is a party and any facts as to the manner of breach are either missing or are too vague and ambiguous to allow any determination of sufficiency.

            Finally, in light of this uncertainty, there is no way for the Court to determine whether or not Plaintiffs all have standing to assert this claim. Where, as here, the individual plaintiffs sue as a subrogee, the complaint should allege the facts on which the claim of subrogation is based; e.g., that on a certain date the plaintiff, acting under legal necessity as surety, guarantor, or insurer, discharged a debt or obligation owing from the defendant (obligor) to the creditor (subrogor). (Schlitz v. Thomas (1923) 61 Cal.App. 635, 639.) Furthermore, as to Plaintiff Eshagh and Hayat Trust, a Trust is not a legal entity and has no standing to sue. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344.) Title to trust assets is held by the trustee, on behalf of the beneficiaries. As to claims held by a trust, the trustee is the real party in interest. (CCP § 369(a); O'Flaherty v. Belgum (2004) 115 Cal.App.4th 1044,1062.)

            Based on the foregoing, Pro Tech’s demurrer is sustained, with 20 days leave to amend. In light of this ruling, Pro Tech’s motion to strike is moot.

It is so ordered.

Dated:  June    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517. 

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Ferguson’s demurrer is SUSTAINED, WITH 20 DAYS LEAVE TO AMEND. In light of this ruling, Ferguson’s motion to strike is MOOT.

            On 12/1/2022, Plaintiffs KBBK, LLC, Hayat Khoubian individually and as trustee of fhe Eshagh and Hayat Trust, Eshagh Khoubian, individually and as trustee of the Eshagh and Hayat Trust, and the Eshagh and Hayat Trust filed suit against 58 Defendants, alleging: (1) fraud; (2) negligent misrepresentation; (3) negligence; (4) breach of contract; (5) breach of warranty; (6) negligence; (7) breach of contract; (8) strict products liability; (9) negligence/strict products liability; and (10) civil remedies for Penal Code sections 484 and 496.

            Now, Defendant Ferguson (Ferguson) demurs to the Complaint.

Discussion

            Ferguson argues that Plaintiffs’ Complaint is uncertain and fails to set forth sufficient facts to state a claim.

            The Court agrees.

            Plaintiffs allege that Ferguson was involved in the “engineering, design, installation (and other activities) of plumbing and related systems” and “engaged in malfeasance in various ways.” (Complaint ¶ 106).

However, Plaintiffs do not allege that they entered into a contractual relationship with Ferguson, do not allege who the parties to that contract were, nor do they allege any of the specific obligations and duties under that contract. As a result, the Court is unable to determine whether there are sufficient facts that could show that an enforceable contract was formed, whether or not all Plaintiffs here have standing to pursue claims against Ferguson, or what duties were allegedly breached. Moreover, the Court is unable to determine whether Plaintiffs’ claims run afoul of the economic loss rule, by trying to recover economic damages in tort rather than contract. (See Robinson Helicopter, Inc. v. Dana Corp (2004) 34 Cal.4th 979

Similarly, while Plaintiff alleges that Ferguson “engaged in malfeasance relative to the engineering, design, installation (and other activities) of plumbing and related systems, and engaged in malfeasance in various ways, according to proof,” Plaintiffs do not allege any additional facts which could show what is meant by this general reference to “malfeasance.” (Complaint, ¶ 106). These allegations are uncertain and fail to put Ferguson on notice of the wrongful conduct it is alleged to have participated in. 

Plaintiffs will be afforded leave to amend to address these deficiencies.

            Based on the foregoing, Ferguson’s demurrer is sustained, with 20 days leave to amend. In light of this ruling, Ferguson’s motion to strike is moot.

It is so ordered.

Dated:  June    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            For more information, please contact the court clerk at (213) 633-0517.