Judge: Mark E. Windham, Case: 24STLC01520, Date: 2024-09-26 Tentative Ruling

Case Number: 24STLC01520    Hearing Date: September 26, 2024    Dept: 26

Unaeze-Nze v. Jerome’s Socal Home Improvement, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Jerome Gardner, individually, and dba Jerome’s Socal Home Improvement’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OFACTION FOR NEGLIGENCE AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

ANALYSIS:

Plaintiff Joy Unaeze-Nze (“Plaintiff”), in propria persona, filed the instant action against Defendant Jerome Gardner, individually, and dba Jerome’s Socal Home Improvement (“Defendant”) (erroneously sued as Jerome’s Socal Home Improvement) on March 4, 2024. Plaintiff filed a First Amended Complaint on May 20, 2024. Defendant, in propria persona, filed the instant Demurrer to the Complaint on August 12, 2024. Plaintiff filed an opposition on September 3, 2024 and Defendant replied on September 16, 2024.

Discussion

Allegations in First Amended Complaint

The First Amended Complaint alleges causes of action for negligence and negligent infliction of emotional distress. Plaintiff alleges that they contacted Defendant on February 20, 2023 regarding a bathroom and kitchen remodel. (FAC, ¶8.) Defendant came out to Plaintiff’s property located at 6820 La Tijera Blvd., Suite 117, Los Angeles, California. (Ibid.) Defendant gave Plaintiff a quote and on June 19, 2023, came to the Property with Guz Mendez from American Home Center, whom Defendant said would be doing the remodeling project. (Id. at ¶¶8-9.) The remodeling project was financed through Finance of America, which gave Mendez the full $57,000.00 payment on Plaintiff’s behalf. (Id. at ¶¶8-10.) At some point Defendant reached out to Plaintiff and demanded that he be paid the $57,000.00. (Id. at ¶12.) Plaintiff informed Defendant that the money had been paid to Mendez. (Id. at ¶13.) Defendant placed a fraudulent mechanic’s lien on Plaintiff’s home, seeking payment for work he never performed. (Id. at ¶15.) Plaintiff has suffered emotionally and physically, due to fears that their home will be sold to satisfy the fraudulent mechanic’s lien. (Id. at ¶16.)

Defendant owed Plaintiff a duty pursuant to Civil Code section 1714 for being responsible for the result of willfully placing a fraudulent mechanical lien on Plaintiff’s home. (Id. at ¶22.) As a result of the lien, Plaintiff has suffered serious emotional distress, including not being able to fall asleep and fear of losing her home. (Id. at ¶27.)

Demurrer

The Demurrer is accompanied by a meet and confer declaration that complies with Code of Civil Procedure section 430.41. (Demurrer, Gardner Decl., ¶¶3-4.) Defendant demurs to the First Amended Complaint for failure to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) The Demurrer is also accompanied by a request for judicial notice of what appear to be text messages regarding the remodeling project. (RJN, Exh. A.) Defendant asks the Court to take judicial notice of the messages pursuant to Code of Civil Procedure section 452, subdivision (h). The text messages are not the proper subject of judicial notice. Defendant does not explain what facts, if any, are to be taken as true from the messages, or why the Court should consider those facts indisputably true. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564, citing 1 Witkin Cal. Evidence (3d ed.1986) § 80, p. 74 [“Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required. Judicial notice is thus a substitute for formal proof. [Citation.]”.) The request for judicial notice is denied.

The first cause of action for negligence must allege the elements of duty, breach, causation, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The demurrer is brought on the grounds that the First Amended Complaint does not set forth what duty was owed by Defendant to Plaintiff, the breach of which caused Plaintiff’s damages. The demurrer does not address the allegations based on Civil Code section 1714 until the reply, in which Defendant argues that this statute only applies to cases “involving injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person.” (Civ. Code, § 1714, subd. (b).) The statute, however, is not so limited. Civil Code section 1714 states in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) Subdivision (b) merely clarifies the legislature’s intent with respect to the application of the rule from subdivision (a) to cases “involving injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person.” (Civ. Code, § 1714, subd. (b).) The first cause of action, therefore, alleges facts sufficient to support the element of duty. The demurrer to the first cause of action for negligence is overruled.

The second cause of action is for negligent infliction of emotion distress but there is no such independent cause of action. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205.) There is only emotional distress damages arising from negligence. (Ibid.) Recovery for emotional distress arising out of loss of property is limited to cases where a preexisting relationship between the parties creates a duty of care or where the damage arises out of an intentional tort. (Ibid.) The First Amended Complaint does not allege a preexisting relationship between the parties that would give rise to this type of duty or an intentional tort. Therefore, the demurrer to the second cause of action is sustained.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) Plaintiff has not shown in opposition to the demurrer that it is possible to correct the defects with respect to the second cause of action. Leave to amend is denied.

Conclusion

Defendant Jerome Gardner, individually, and dba Jerome’s Socal Home Improvement’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OFACTION FOR NEGLIGENCE AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

Moving party to give notice.