Judge: Mark H. Epstein, Case: 23SMCV00641, Date: 2023-09-28 Tentative Ruling

Case Number: 23SMCV00641    Hearing Date: September 28, 2023    Dept: I

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Plaintiff sues various parties, one of which is the demurring property manager.  The property manager was hired by the COA.  Plaintiff contends that the property manager did not take appropriate action regarding a water leak that damaged plaintiff’s property even though the problem had been obvious for years.  While some work was done, plaintiff alleges that it was done improperly, leading to making the unit uninhabitable.  The manager demurs, claiming that it owes a duty to the COA (by virtue of the contract), but not to plaintiff.  Plaintiff contends that plaintiff is a third party beneficiary under the contract but other than stating that plaintiff benefits from the manager’s work (which alone is not enough) plaintiff does not elaborate.

Because neither party has attached the contract, the court’s analysis is somewhat difficult.  True, plaintiff need not attach the contract.  Nor does plaintiff need to quote it verbatim.  But plaintiff must at least paraphrase the language of the contract at issue.  Here, the key part of the contract (for demurrer purposes) is the part that plaintiff believes gives it third party beneficiary status.  Right now, the complaint is not sufficient to so allege.  Of course, defendant could have solved that problem by appending the contract—after all, the court can consider the contract where it is the complaint’s centerpiece even if not attached to the complaint so long as there is no dispute as to the contract’s words.  But that was not done either.  Had it been done, it might have led the court to overrule the demurrer (if the language was there to support plaintiff) or sustain without leave (if the language was there to support the defense).  But, alas, the without seeing the contract, the court can do neither and therefore must sustain with leave.

Plaintiff has 30 days’ leave to amend the complaint.  The court suggests that plaintiff attach the contract, but at a minimum, plaintiff must quote the contract or allege with some particularity what the relevant provision says even if not a direct quote.  Defendant may, of course, attach the contract to any resulting demurrer assuming that there is no dispute as to the contract’s terms (not the meaning; just the words).

The motion to strike is DENIED.  The complaint is sufficient to allege punitive damages, at least at the pleading stage.