Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV01635, Date: 2023-09-19 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV01635, Date: 2023-09-19 Tentative Ruling

Plaintiffs Alan Roberts and Lauren Roberts may amend their complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Butler Cabana LLC (“Defendant”) moves for judgment on the pleadings as to Plaintiffs Alan Roberts and Lauren Roberts (“Plaintiffs”)’s third cause of action for nuisance, fifth cause of action for breach of contract, and sixth cause of action for intentional interference with estate, and Defendant moves to strike Plaintiffs’ claims for punitive damages and attorney fees.

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) Judgment on the pleadings is proper when “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi, supra, 218 Cal.App.4th at p. 1013.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

To establish an action for private nuisance, (1) “the plaintiff must prove 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 must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.)

In the third cause of action, Plaintiffs allege that Defendants caused to exist nuisances at the property. (Compl. ¶ 37.) In Plaintiffs’ fourth cause of action for negligence, they allege that Defendants failed to maintain the premises a safe, habitable condition. (Compl. ¶ 45.) The Court finds that the nuisance claim is duplicative here because the underlying facts do not differ in the two causes of action, and “[w]here negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Given this is the first demurrer, the Court will allow Plaintiffs the opportunity to allege a nuisance claim which differs from their negligence claim. Accordingly, Defendant’s motion for judgment on the pleadings as to the third cause of action is GRANTED, with thirty (30) days leave to amend.

To state a cause of action for breach of contract, Plaintiffs 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.)

Plaintiffs allege that the lease agreements between them and Defendant constitute valid contracts, and their use and quiet enjoyment of the property was contemplated in the contract, but Defendant breached this agreement. (Compl. ¶¶ 52-55.) Plaintiffs provide no other facts about the purported agreement except to allege they took possession by a written agreement in 2014. (Compl. ¶ 2.) Notably, if a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “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.) Plaintiffs have done neither here. Plaintiffs must amend the complaint to sufficiently allege the existence of a contract. Thus, Defendant’s motion for judgment on the pleadings as to the fifth cause of action is GRANTED, with thirty (30) days leave to amend.

Civil Code section 789.3, subdivision (a), provides that “[a] landlord shall not with intent to terminate the occupancy under any lease . . . willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” Civil Code section 789.3, subdivision (b), provides that “a landlord shall not, with intent to terminate the occupancy under any lease . . . willfully: [¶] (1) Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device; [¶] (2) Remove outside doors or windows; or [¶] (3) Remove from the premises the tenant’s personal property, the furnishings, or any other items without the prior written consent of the tenant.”

In their complaint, Plaintiffs simply provide conclusory statements that Defendant did both of these things, without providing any specific facts, and that they have suffered severe emotional distress as a result. (See Compl. ¶¶ 58-60.) Simply stating the elements of a claim does not create a cause of action, as it does not allow the trier of fact or Defendant to determine the nature of the claim. If Plaintiffs wish to advance this claim further, they must allege specific facts that would allow a trier of fact to conclude that Defendant violated either of the identified subdivisions of Civil Code section 789.3. Otherwise, Plaintiffs’ claim again appears to be duplicative of their negligence claim. Accordingly, Defendant’s motion for judgment on the pleadings as to the sixth cause of action is GRANTED, with thirty (30) days leave to amend.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiffs’ claim for punitive damages is contained within their cause of action for negligence (Compl. ¶ 49), which generally will not support a claim for punitive damages, as negligence is an unintentional tort, and a negligent party has no desire to cause the harm that results from its conduct, differing from a party who has engaged in willful misconduct and intended to cause harm. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167.) Allegations of negligence where injuries might occur but are not probable do not support a claim of punitive damages. (McDonell v American Trust Co. (1955) 130 Cal.App.2d 296, 300; see also Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 12 [evidence of negligence insufficient to show that defendant knew or must have known of the danger].) Plaintiffs have stated no allegations that would allow the trier of fact to conclude that Defendant intended to cause harm to Plaintiffs in a manner that “showed a complete lack of concern regarding the harmful potential [and] the probability and likelihood of injury.” (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 288.) Thus, there is no basis for punitive damages as stated.

An award of attorney’s fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Plaintiffs have included a prayer for attorney fees in their complaint (Compl., p. 8, l. 17), but they have identified no basis for an award of attorney fees in contract, statute, or law. Thus, Defendant Butler Cabana LLC’s Motion to Strike Portions of Complaint is GRANTED, with thirty (30) days leave to amend.