TENTATIVE RULING

Plaintiff/Cross-Defendant Appleton Way LLC and Cross-Defendants Jill Latiano and Glenn Howerton’s Demurrer to the Fourth Amended [Cross-] Complaint of Amy Goldman is OVERRULED as to the first cause of action, SUSTAINED without leave to amend as to the third, fourth, and fifth causes of action.

Plaintiff/Cross-Defendant Appleton Way LLC and Cross-Defendants Jill Latiano and Glenn Howerton shall file and serve an answer to Cross-Complainant Amy Goldman’s Fourth Amended Cross-Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Plaintiff/Cross-Defendant Appleton Way LLC and Cross-Defendants Jill Latiano and Glenn Howerton to give notice. 

REASONING

Plaintiff/Cross-Defendant Appleton Way LLC (“Appleton”) and Cross-Defendants Jill Latiano and Glenn Howerton (“Cross-Defendants”) demur to the first, third, fourth, and fifth causes of action alleged in Defendant/Cross-Complainant Amy Goldman (“Cross-Complainant”)’s Fourth Amended Cross-Complaint (“FACC”).

First Cause of Action: Breach of Written Contract

To state a cause of action for breach of contract, Cross-Complainant must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Cross-Complainant alleges that she leased the property pursuant to a written lease agreement and a one-year extension entitled “First Amendment to Residential Lease.” (FACC ¶ 161, Ex. F.) Cross-Complainant alleges that Appleton breached the agreement by falsely advertising the house as a three-bedroom house, by having an unregistered Accessory Dwelling Unit (“ADU”) in the back of the rental house, and by failing to remediate several issues with the property. (FACC ¶ 163.) Appleton argues that none of the breaches can be attributed to Latiano and Howerton, but Cross-Complainant has only alleged this claim against Appleton, as stated in the heading, despite the mentions of all Cross-Defendants in the claim. The Court understands this action as solely being alleged against Appleton. For that reason, Cross-Defendants’ demurrer to the first cause of action is OVERRULED.

Third Cause of Action: Intentional Misrepresentation and Fourth Cause of Action: Fraud – Concealment

“The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “The elements of a cause of action for fraudulent concealment are: (1) concealment of a material fact; (2) by a defendant with a duty to disclose; (3) the defendant intended to defraud by failing to disclose; (4) plaintiff was unaware of the fact and would not have acted as it did had it known the fact; and (5) damages.” (Butler America, LLC v. Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136, 144.)

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Cross-Complainant alleges that Cross-Defendants made various statements about the condition of the property on October 4, 2019, but these representations were false. (FACC ¶¶ 186, 192.) Cross-Complainant again provides no clarity as to the specific representations that were made to her, by whom, and when the representations were made; attributing the statements to both Latiano and Howerton is confusing, as it does not attribute any specific statement to any person. The Court previously advised Cross-Complainant to clarify these claims, but she failed to do so, such that the Court lacks a basis to conclude that these claims can be amended to state fraud claims. Accordingly, Cross-Defendants’ demurrer to the third and fourth causes of action is SUSTAINED without leave to amend.

Fifth Cause of Action: Conspiracy to Violate the Covenant of Quiet Enjoyment

The elements of a claim for breach of the covenant of quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which “substantially interfere[s] with a tenant[’]s right to use and enjoy the premises for the purposes contemplated by the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.) “Civil conspiracy is not an independent tort. Instead, it is a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-212, quotation marks omitted.) “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (Id. at p. 212.)

Cross-Complainant alleges that Latiano verbally attacked Cross-Complainant, and Howerton intended to disturb Cross-Complainant’s sleep. (FACC ¶¶ 199-202.) Put simply, this is not a conspiracy claim, as Cross-Complainant alleges specific, direct conduct by Latiano and Howerton, and there are no specific facts about a purported conspiracy. Moreover, there is no lease agreement between Cross-Complainant and Latiano and Howerton, and insofar as Cross-Complainant seeks to hold Appleton liable for Latiano and Howerton’s conduct, there is no information in this claim to state a basis for liability in that regard. The Court lacks a basis to conclude that amendment could state a proper claim for conspiracy to violate the covenant of quiet enjoyment or violation of the covenant of quiet enjoyment. Thus, Cross-Defendants’ demurrer to the fifth cause of action is SUSTAINED without leave to amend.