Judge: Malcolm Mackey, Case: 23STCV01492, Date: 2023-08-15 Tentative Ruling
Case Number: 23STCV01492 Hearing Date: August 15, 2023 Dept: 55
MAADARANI
v. DECRON PROPERTIES CORP., 23STCV01492
Hearing Date: 8/15/23,
Dept. 55.
#6: MOTION FOR JUDGMENT ON THE PLEADINGS.
Notice: Not Okay
(no notice of hearing continuance).
No Opposition
MP:
Defendant and Cross-Complainant DECRON
PROPERTIES CORPORATION
RP:
Summary
On 1/24/23, plaintiffs, self-represented litigants, filed
a Complaint alleging that they leased a residence at 1518 Patricia Ave., in
Simi Valley, where there was leaking plumbing causing mold, and there were
other uninhabitable conditions.
The causes of action are:
1. BREACH
OF CONTRACT
2. BREACH
OF IMPLIED WARRANTY OF HABITABILITY
3. BREACH
OF COVENANT FOR QUIET ENJOYMENT
4. BREACH
OF COVENANT OF GOOD FAITH AND FAIR DEALING
5. NEGLIGENCE
6. PREMISES
LIABILITY
7. NEGLIGENT
MISREPRESENTATION
8. INI'ENTIONAL
MISREPRESENTATION
9. NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS
10. INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
11. CONCEALMENT
12. UNFAIR
BUSINESS BRACTICES
13. DEFAMATION/LIBEL
14. PRIVATE
NUISSANCE.
MP
Positions
Moving party requests an order granting judgment on
the pleadings as to the Complaint’s Fourteenth Cause of Action for Nuisance;
Tenth Cause of Action for Intention Infliction of Emotional Distress; Eleventh
Cause of Action for Concealment; Twelfth Cause of Action for Unfair Business Practices;
and Eighth Cause of Action for Intentional Misrepresentation, on grounds
including the following:
·
Plaintiffs’ fourteenth cause of action for
nuisance is duplicative of the fifth cause of action for negligence.
·
Negligent Infliction of Emotional Distress
is not an independent tort but the tort of negligence, involving the usual duty
and causation issues. (Macy’s Calif. v. Superior Court (1995) 41 C.A.4th 744.)
·
In their seventh and eighth causes of
action for negligent misrepresentation and intentional misrepresentation, Plaintiffs
have failed to include specific factual allegations regarding “how, when,
where, to whom and by what means the representations were tendered.” (Cansino
v. Bank of America, supra, 224 Cal.App.4th at 1469.)
·
Negligence does not equate to Intentional
Infliction of Emotional Distress, much less intent to cause outrageous and
severe emotional distress to the tenant/plaintiff. The instant matter is
nothing more than a simple premises liability case with no exacerbating
circumstances. Plaintiffs’ claims are essentially claims for breach of
contract, for which mental suffering and emotional distress damages are not
recoverable. (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.)
·
To properly plead a cause of action under
the UCL, a plaintiff must show that members of the public are likely to be
deceived. (West v. Indus. Indem. Co. (1992) 2 Cal.4th 1254; Khoury v. Maly’s of
Ca., Inc. (1993) 14 Cal.App.4th 612.) Here,
the facts plead by Plaintiffs do not involve monopolistic or anti-competitive
practices. (Cal-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163.) Since Plaintiffs have failed to plead
sufficient facts to show that Decron acted deceptively or with an intent to
defraud the public, they have not properly asserted a cause of action under the
UCL.
Tentative
Ruling
Preliminarily, the Court inquires whether Defendant
gave notice of the continuance of the motion for judgment on the pleadings, as
required by the “NOTICE RE: CONTINUANCE OF HEARING AND ORDER,” filed 6/30/23?
The Court finding sufficient notice of the
continuance, now rules as follows:
The unopposed motion is granted, with 20 days’ leave
to amend.
The failure to file a proper and timely opposition in
trial court creates a waiver of the issues on any appeal. Bell v. Am. Title Ins. Co. (1991) 226
Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683,
693. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.
However, courts generally allow at least one time to
amend a complaint, even without any request for leave to amend. McDonald v. Sup.