Judge: Lee W. Tsao, Case: 23NWCV00844, Date: 2023-10-19 Tentative Ruling
Case Number: 23NWCV00844 Hearing Date: October 19, 2023 Dept: C
IKEDA v. THE JEN & MI LU FAMILY
LLC
CASE NO.: 23NWCV00844
HEARING: 10/19/23
#7
Defendant THE JEN & MI LU FAMILY, LLC’s Demurrer to
Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.
Moving Party to give Notice.
This breach of contract action was filed by Plaintiff LINDA
IKEDA (“Plaintiff”) on March 20, 2023. Plaintiff’s form Complaint alleges that
“Defendants Does 1 to 20 had a written and implied covenant to rent their
premises to Jumpstart Bodyfuel, knowing Plaintiff Linda Ikeda would be the main
occupier of the rented premises. The written and implied covenants were to rent
a premises that was habitable and safe from airborne and stable dangerous
conditions. Defendant either knew or should have known that the premises
contained lead contamination.” (Complaint BC-1.) Sometime after the lease was signed,
Jumpstart Bodyfuel was dissolved and Way Beyond Cake LLC took over the premises
and liability for rent. Plaintiff Ikeda
was the principal of both corporations. (Opp., p. 1:24-28.)
Plaintiff’s Complaint asserts the following causes of
action:
(1) Breach
of Contract;
(2) Premises
Liability
Defendant specially and generally demurs to Plaintiff’s entire
Complaint.
Uncertainty
Defendant argues
that the first and second causes
of action are fatally uncertain. This argument lacks merit because “[a] special
demurrer for uncertainty is not intended to reach the failure to incorporate
sufficient facts in the pleading but is directed at the uncertainty existing in
the allegations actually made.” (Butler v. Sequeira (1950) 100
Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored
and will only be sustained where the pleading is so bad that the 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. (Khoury v. Maly’s of Calif. Inc. (1993) 14
Cal.App.4th 612, 616.) 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.” (Ibid.) Here, it is clear
from Defendant’s other arguments that they understand what the Complaint at
least attempts to allege, and there is no true uncertainty. The Demurrer is not
sustained on the basis of uncertainty.
First Cause of Action – Breach of Contract
Whether it is written, oral, or implied, the elements of a cause of
action for breach of contract are as follows: (1) the existence of a contract;
(2) Plaintiff’s performance or excused non-performance; (3) Defendants’ breach;
and (4) resulting damage to Plaintiff. (Reichert v. General Ins. Co.
(1968) 68 Cal.2d 822, 830.) “If an action is based on
a breach of written contract, the terms must be set forth verbatim in the body
of the complaint or a copy of the contract must be attached and incorporated by
reference.” (Id. at 459.) Alternatively, if the claim is based on a written
contract, then “a plaintiff may plead the legal effect of the contract rather
than its precise language.” (Construction Protective Services, Inc. v. TIG
Specialty Ins. Co., (2002) 29 Cal.4th 189, 198-199.)
The demurrer to the first cause of action is SUSTAINED with
30 days leave to amend. Here, the Complaint fails to allege the existence of
any contract between Plaintiff Linda Ikeda and Defendant. As alleged, the
subject lease agreement is between non-party Jumpstart Bodyfuel and Defendant.
Indeed, the Lease Agreement attached as Exhibit A to the Complaint expressly
states that the Lease is “made by and between The Jen & Mi Lu Family, LLC
(herein called ‘Landlord’) and Jumpstart Bodyfuel, LLC (herein called ‘Tenant’).”
(Complaint, Ex. A.)
Second Cause of Action – Premises Liability
“The elements of a cause of action for premises liability are the same
as those for negligence: duty, breach, causation, and damages.” (Castellon
v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Duty is a necessary
element of a cause of action for premises liability.” (Salinas v. Martin
(2008) 166 Cal.App.4th 404, 411.)
The Complaint alleges that Plaintiff “[c]ontracted lead
poisoning from the Defendants leased premises as a result of her continued
occupation of the premises…..” (Complaint Prel. L-1.) Plaintiff points out that she is being sued by Defendant
for unpaid rent in 21NWCV00697. Plaintiff argues that D cannot sue her
for unpaid rent in that case and deny any duty to her in this case. However,
as indicated above, the Complaint in this case does not sufficiently allege
that Plaintiff is a party to the Lease. Therefore, as alleged, it is unclear
what duty Defendant owes to Plaintiff, if any.
The demurrer to the second cause of action is SUSTAINED with
30 days leave to amend.
Standing
The issue of whether Jumpstart Bodyfuel has
standing/capacity to institute this lawsuit is not before this Court. Jumpstart
Bodyfuel is not a party to this action, and Plaintiff Ikeda does not allege
that she is bringing derivative claims on behalf of the corporate entity.
Statute of Limitations
If it is shown that an action would otherwise be
time-barred, a plaintiff wishing to avoid the statute of limitations bar may
rely on the delayed discovery rule. Such a plaintiff bears the burden of
proving its application. (Investors Equity Life Holding Co. v. Schmidt
(2011) 195 Cal.App.4th 1519, 1533.) “In order to rely on the discovery rule for
delayed accrual of a cause of action, a plaintiff whose complaint shows on its
face that his claim would be barred without the benefit of the discovery rule
must specifically plead facts to show (1) the time and manner of discovery and
(2) the inability to have made earlier discovery despite a reasonable
diligence.” (Fox Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
In assessing the sufficiency of the allegations of delayed discovery, the court
places the burden on the plaintiff to “ ‘show diligence; ‘conclusory
allegations will not withstand demurrer.’” (Id.)
The face of the Complaint does not establish that
Plaintiff’s claims are necessarily barred by any statute of limitations.
A determination of such would require factual determinations inappropriately
decided at the demurrer stage. The demurrer is not sustained on this basis.