Judge Michael E. Whitaker, Case Number: 23SMCV01044, Date: 2024-02-06 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV01044, Date: 2024-02-06 Tentative Ruling

This case is a landlord/tenant dispute regarding the conditions of real property Plaintiffs Jennifer Flynn Adams (“Flynn”) and Christoper Adams (together, “Plaintiffs”) leased, with the intent to purchase in the future.

Plaintiffs’ first amended complaint (“FAC”), alleges fourteen causes of action for (1) breach of statutory duties; (2) negligence; (3) maintenance of a nuisance and trespass; (4) breach of lease agreement; (5) breach of contract; (6) fraud and deceit; (7) negligent misrepresentation; (8) breach of the duty of good faith and fair dealing; (9) quantum meruit; (10) intentional interference with prospective economic advantage; (11) negligent interference with prospective economic advantage; (12) unfair business practices; (13) intentional infliction of emotional distress; and (14) declaratory and injunctive relief.

Defendants The Bessemer Trust Company of California, N.A. (“Bessemer”); E&TB Investments, LLC (“E&TB”); Tara Daughrity Broida (“Broida”); Steven J. Dwyer (“Dwyer”); and Elizabeth Kim (collectively, “Defendants”) demur to the third, fifth, eighth, ninth, tenth, eleventh, and thirteenth causes of action for failure to state a cause of action, pursuant to Code of Civil Procedure, section 430.10, subdivision (e). Defendants additionally demur to the third, fifth, tenth, and eleventh causes of action on the basis of uncertainty, pursuant to Code of Civil Procedure, section 430.10, subdivision (f).

Defendants request judicial notice of a copy of a printout from the Delaware Secretary of State website indicating Defendant E&TB Investment, LLC was incorporated on December 27, 2018.

Official notices, statements, and certificates made by a Secretary of State are properly the subject of judicial notice as documents reflecting official acts of a state’s executive department, pursuant to Evidence Code section 452, subdivision (c). (See generally Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483–1484.)

However, “materials prepared by private parties and merely on file with the state agencies” may not be properly judicially noticed as an official act of a legislative, executive, or judicial department of the United States or any state of the United States. (People v. Thacker (1985) 175 Cal.App.3d 594, 598.)

The printout in question reflects that E&TB Investments LLC is in good standing, and shows an incorporation/formation date of 12/27/2018. Therefore, it reflects the State of Delaware’s official act of accepting E&TB’s application and deeming it an entity as of 12/27/2018.

Plaintiffs object to and request to strike Defendants’ demurrer, exhibits attached to the demurrer, and reply brief on the grounds that (1) the demurrer and reply brief use excessive footnotes to circumvent the applicable page limit; (2) the reply raises new arguments not raised in the demurrer; and (3) Defendants improperly reference arguments made in the prior demurrer.

While the Court acknowledges that Defendants have employed a liberal use of footnotes, neither brief exceeds the applicable page limitations,[1] and given the number of causes of action at issue and the number of Defendants involved, the Court does not find Defendants’ use of footnotes excessive under the circumstances.

The Court agrees that, to the extent the Reply raises new arguments, due process dictates that Plaintiffs should have an opportunity to respond. However, Plaintiffs do not articulate what new arguments Defendants have made in the Reply, and the Court is uncertain what Plaintiffs are referring to. Regardless, the Court bases its analysis solely on arguments raised in the demurrer, so to the extent the Reply contains new arguments, the Court does not rely upon them.

The Court also agrees that the exhibits attached to the demurrer should be disregarded. Extrinsic evidence may not be considered on a demurrer, and Defendants did not request the Court to take judicial notice of the exhibits attached directly to the demurrer. (See, e.g., Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [“The purpose of a general demurrer is to determine the sufficiency of the complaint and the court should only rule on matters disclosed in that pleading”].) Therefore, the Court does not consider them in its analysis.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Defendants contend the third cause of action is ambiguous because nuisance and trespass are two distinct causes of action.

A “nuisance” is “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

A nuisance may be public, private, or both. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) “Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land.” (Ibid.) “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.” (Ibid.)

By contrast, “trespass” is “an unlawful interference with the possession of property.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) To establish trespass, a plaintiff must demonstrate (1) that plaintiff leased/occupied/controlled the property; (2) defendants intentionally, recklessly, or negligently entered plaintiff’s property or caused another person or thing to enter plaintiff’s property; (3) plaintiff did not give permission for the entry or defendant exceeded plaintiff’s permission; (4) plaintiff was actually harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. Such entry can be above or below the surface of the land. (CACI No. 2000 (2023).)

In analyzing pleadings, Courts elevate substance over form. (See Plumlee v. Poag (1984) 150 Cal.App.3d 541, 546 [“Courts under the reformed system of procedure look to the substance of things rather than to form”].)

72. At all relevant times herein, said Defendants negligently, intentionally, and/or otherwise, failed to adequately maintain, design, modify, and/or repair the drainage and plumbing, sewage, and septic systems, or otherwise remove standing water and/or sewage in and around the SUBJECT PREMISES, and failed to prevent water and/or sewage from accumulating on the premises which was allowed to pool in and around Plaintiffs' home, and penetrate/trespass into their living space, thus, substantially interfering with Plaintiffs’ quiet use and enjoyment, and/or possession, of the SUBJECT PREMISES.

73. Defendants' committed acts and omissions have resulted in substandard physical characteristics of the premises and to human activities in violation of Health & Safety Code §§17920.3 and 17920.10, as well as Civil Code § 1941, et. Seq. The conditions on or about the premises affect the health, welfare, or safety of plaintiffs and their family and constitute the creation of a nuisance under said code sections and within the meaning of Civil Code §§3479, 3480, 3481, Code of Civil Procedure §731, and further interfere with Plaintiffs’ contractual as well as legal right to use and enjoyment, and possession, of the SUBJECT PREMISES.

74. As set forth herein, Plaintiffs have sustained and still suffer substantial harm from continuing water intrusion, failing foundations, sewage overspill, a problem with diverted/standing water around their home caused by diversion of rainwater and other water by improper/inadequate drainage in the surrounding areas, outside structures, and by inadequate drainage and plumbing systems.

75. As a proximate result of the contractual and statutory violations, and maintenance of the nuisance, Plaintiffs, at all relevant times herein, became continuously exposed to an environment that deprived Plaintiffs of the safe, healthy, and comfortable use of the premises, all of which is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable use and enjoyment of life or property.

76. As a proximate result of said Defendants' maintenance of the nuisance and trespass, Plaintiffs suffered property damage, economic loss, personal injuries, discomfort, annoyance, emotional distress, and mental anguish, all to their general damage according to proof.

77. In maintaining the nuisance and trespass, said Defendants acted with full knowledge of the consequences thereof and of the damage being caused to Plaintiffs despite this knowledge, Defendants failed to abate the nuisance by repairing the defective and dangerous conditions of the premises or causing them to be repaired, entitling Plaintiffs to injunctive relief therefore.

78. Said Defendants threaten to, and unless restrained and ordered to restore proper drainage, reconstruct substantial portions of the home, repair or replace the septic system, repair and/or replace the applicable drainage system, repair and/or replace the applicable plumbing system, abate all mold infestation with removal and replacement of damaged structure and/or HVAC system, abate the infestation of the SUBJECT PREMISES by rodents, spiders and/or insects, and make any other alterations or repairs to correct the complained of problems, will continue to act in violation of the LEASE and above-referenced statutes, and thereby continue and repeat their violations.

79. The actions and omissions of said Defendants alleged above will irreparably harm Plaintiffs, neighbors, and the general public.

Thus, Plaintiff’s allegations implicate both trespass and nuisance. However, each cause of action must be separately stated. (See California Rules of Court, rule 2.112.)

Therefore, the Court sustains Defendants’ demurrer to the third cause of action for uncertainty, because it improperly conflates and combines two separate causes of action, and Defendants therefore cannot reasonably determine which claim (trespass or nuisance) is directed against them by the third cause of action.

ii. Fifth Cause of Action – Breach of Contract based upon Promissory Estoppel

Although not raised by the parties, the court notes that the cause of action labeled “breach of contract based upon promissory estoppel” implicates two separate and contradictory theories of liability in one cause of action.

“Conceptually, promissory estoppel is distinct from contract in that the promisee's justifiable and detrimental reliance on the promise is regarded as a substitute for consideration required as an element of an enforceable contract.” (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692–693.)

“A promissory estoppel claim also lacks another essential element of a contract claim: the parties’ [mutual] consent.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 242.) As such, the Supreme Court has repeatedly recognized breach of contract and promissory estoppel “not only as distinct or alternative theories of recovery but also as mutually exclusive.” (Id. at p. 243.)

Thus, the promises either form the basis of a contract, or they support recovery under a theory of promissory estoppel, but they cannot simultaneously support both.

Here, a review of the allegations demonstrate that, despite Plaintiffs’ references to the promises forming an “agreement,” Plaintiffs allege only a promissory estoppel theory of liability. Plaintiffs have separately brought the fourth cause of action for purported breaches of the lease agreement.

Thus, elevating substance over form, the Court construes the fifth cause of action as stating a claim for promissory estoppel, not breach of contract.

Defendants contend the fifth cause of action for promissory estoppel is nonetheless uncertain because it is premised on three separate promises, and therefore combines multiple theories of liability into a single cause of action. The Court disagrees. Defendants’ demurrer demonstrates how well Defendants have been able to parse the allegations of the fifth cause of action with respect to the various alleged promises and their applicability to each Defendant. Therefore, Defendants do not demonstrate that any portions of the fifth cause of action are so bad that they cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. The Court thus declines to sustain Defendants’ demurrer to the fifth cause of action on the basis of uncertainty.

iii. Tenth and Eleventh Causes of Action – Intentional and Negligent Interference with Prospective Economic Advantage

Defendants contend the tenth and eleventh causes of action “make zero sense” because the FAC fails to allege facts establishing all of the required elements of those causes of action. Whether Plaintiffs have adequately stated a cause of action is a separate issue from whether that cause of action is uncertain. Again, Defendants do not demonstrate that any portions of the tenth or eleventh causes of action are so bad they cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. Rather, Defendants contend that the allegations are incomplete to state a cause of action. Therefore, the Court does not sustain Defendants’ demurrer to the tenth or eleventh causes of action on the basis of uncertainty.

i. Fifth Cause of Action – Breach of Contract based upon Promissory Estoppel

“The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.)

97. As set forth herein under paragraphs 15 through 22, of this Complaint, in or around June of 2018, representations and clear and unambiguous promises were made by Defendants BROIDA, DWYER, KIM and DOES 31-35 regarding (1) the condition and value of the SUBJECT PREMISES; (2) the exclusive right to future ownership interest to Plaintiffs, and (3) payment to FLYNN for due diligence services. (Collectively “PROMISES.”)

Yet despite this promise, Plaintiffs allege Defendants Broida, Burstin, Bessemer, and ETB “have failed and refuse” to sell the property to Plaintiffs. (FAC ¶ 110.)

100. Based thereon, Plaintiffs entered into a LEASE on June 24, 2018, with MADISON with the intent to purchase the property per the representations and promises of Defendants and continued with renting such property in expectations of the promises being kept. This intent of the parties to proceed in this manner, and to allow for purchase of the SUBJECT PREMISES by plaintiffs was manifest by the parties not including an integration clause in the Lease Agreement.

101. In further reasonably relying thereon, plaintiffs invested a substantial amount of time, money and resources in making repairs and improvements to the SUBJECT PREMISES which cut significantly into their work days and billable hours. No reimbursement was requested or offered because plaintiffs reasonably relied on the stated promises that these efforts would be taken into consideration for final purchase, and plaintiffs believed the improvements, repairs, and services provided were for the benefit of their future home.

105. As a result of the representations and clear and unambiguous PROMISES and actions of BROIDA (as Co-Trustee of MADISON), DWYER (as Co-Trustee of MADISON and on behalf of BESSEMER), KIM, and/or agents acting on their behalf, and DOES 1-75 regarding: (1) the condition and value of the SUBJECT PREMISES; (2) the exclusive right to future ownership interest to Plaintiffs, and (3) payment to FLYNN for due diligence services, it was reasonably foreseeable that Plaintiffs would and did alter their position in entering the subject LEASE and moving into the SUBJECT PREMISES, as well as investing a substantial amount of time, money and resources in making repairs and improvements to the SUBJECT PREMISES. Plaintiffs have incurred costs, expenses, and made decisions that now affect their equitable interests, future residency, work positions, childcare needs, schooling choices, and alternative real estate opportunities all to their detriment and loss

Defendants argue (1) the FAC fails to allege any promise made by Defendant E&TB; (2) the alleged promises fail to state a claim against Defendants Broida or Bessemer.

Defendants argue the FAC fails to allege any promise made by Defendant E&TB, and in fact it could not allege any such promise by or on behalf of E&TB because E&TB did not exist as an entity at the time the promises were allegedly made. Plaintiffs counter that although ET&B did not exist at the time of the alleged promises, it is controlled by Eric Broida and Defendant Tara Daughrity Broida, who transferred the subject property to E&TB.

The Court agrees with Defendants. Because E&TB did not exist at the time the alleged promises were made, those promises could not have been made by or on behalf of E&TB. To the extent the Broidas broke their promise to sell the property to Plaintiffs, Plaintiffs’ cause of action for promissory estoppel is properly brought against the Broidas, not E&TB.

Therefore the Court sustains E&TB’s demurrer to the fifth cause of action for promissory estoppel.

Defendants next argue that Defendant Broida’s alleged promise concerning the “condition and value” of the property, “that the SUBJECT PREMISES was habitable, safe, structurally sound and stable, and was in compliance with all building and safety codes, among other things” was simply a statement of fact, not an actionable promise. (See FAC ¶¶ 17, 97.) Defendants also argue that Defendant Broida’s alleged promise that “Plaintiffs would have the exclusive right to purchase said property” (see FAC ¶ 16) is too vague to be enforceable. Defendants further argue that the promise by Defendant Bessemer (through Defendant Dwyer) that “authorized FLYNN to perform ‘any and all diligence’ ‘required’ to ascertain the fair market value of the SUBJECT PREMISES” and agreeing “to pay all fees and costs associated with this work and provided no limitations cap on time or efforts” (FAC ¶ 21) is also too vague to be enforceable.

The Court disagrees. Whether the alleged statements were in fact actionable promises such that a reasonable person in Plaintiffs’ shoes would have similarly relied on them are factual determinations to be made at later stages of the litigation. For purposes of pleading, Plaintiffs have adequately stated a cause of action for promissory estoppel against Defendants Broida and/or Bessemer.

ii. Eighth Cause of Action – Brach of the Duty of Good Faith and Fair Dealing

Defendant next contends that because the Breach of the Duty of Good Faith and Fair Dealing are also premised on the alleged false promises, the Eighth cause of action must also fail. The Court agrees that, to the extent Plaintiffs attempt to premise their eighth cause of action on the non-contractual promises underlying the fifth cause of action for promissory estoppel, the eighth cause of action similarly fails.

However, the eighth cause of action is also premised on Defendants’ alleged beaches of the lease agreement. Therefore, the eighth cause of action similarly survives.

“The requisite elements of quantum meruit are (1) the plaintiff acted pursuant to “an explicit or implicit request for the services” by the defendant, and (2) the services conferred a benefit on the defendant.” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company (2018) 24 Cal.App.5th 153, 180.)

Defendants contend that the ninth cause of action, which is premised on the promise allegedly made by Defendant Dwyer (on behalf of Bessemer) authorizing Plaintiff Flynn to perform “any and all diligence” regarding the fair market value of the premises, fails as to Defendant Broida, because there is no allegation that Defendant Broida made an explicit or implicit request for Plaintiff Flynn’s due diligence services.

Plaintiffs counter that the FAC alleges that all Defendants were working together on behalf of the landlord. The FAC alleges that Madison was the landlord (FAC ¶ 12), and that “[a]t all time mentioned in this complaint, BROIDA, BURSTIN, BESSEMER, and DOES 21 through 30 are the alter egos of MADISON[…]” (FAC ¶ 13.)

Therefore, the allegations are sufficient to withstand demurrer as to Defendant Broida at this stage of the litigation.

iv. Tenth and Eleventh Causes of Action – Intentional and Negligent Interference with Prospective Economic Advantage

The elements of a cause of action for intentional interference with prospective economic advantage are: (1) the existence between plaintiff and a third party of an economic relationship with the probability of future economic benefit to the plaintiff; (2) defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action. (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.)

“The difference between intentional interference and negligent interference with prospective economic advantage relates to the defendant's intent.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1006.) Thus, the third element of a negligent interference claim requires that the defendant was negligent, as opposed to any intentionally wrongful acts. (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)

Defendants argue Plaintiffs fail to allege facts regarding the first, fourth, or fifth elements. Plaintiffs allege:

20. Beginning on or about April 19th, 2022, Bessemer solicited FLYNN as a client. As part of this process, BESSEMER gained knowledge of FLYNN'S business background, and contracted work and consulting, with financial entities and government agencies. BURSTIN (Managing Director and Director of Client Advisory for Bessemer Trust of California), and DWYER (Senior Vice President of Bessemer Trust of California), and KIM knew that any conflict for FLYNN in her duty to report and/or duty to inform would result in a substantial loss of work and put her company at risk and could have a devasting impact on her livelihood. As a result of such issues arising and not being corrected, FLYNN has suffered substantial losses to her livelihood.

32. On or about July 24th, 2022, in performing her authorized diligence, FLYNN met with officials at Public Works -Building & Safety in an attempt to locate property records. Officials and inspectors informed FLYNN that BROIDA and her advisors needed to be informed that they were in violation of countless CSD NORTH requirements that needed to be addressed immediately. They also confirmed that the property does not have a valid certificate of occupancy and is currently in violation of the implied warranty of habitability. FLYNN reported this immediately to BROIDA, who told her to report it to DWYER. FLYNN also reported this again to Mr. Glowacki, Mr. Burstin and Ms. Kim.

33. On July 29th, 2022 - FLYNN offered to send this diligence report, and the cornering material facts and information regarding the property, to DWYER to add to Mr. Broida’s estate records. DWYER refused to physically accept FLYNN'S report and other findings to add to records for Mr. Broida’s and retaliated with a verbal threat the he would stop the purchase/sale.

34. On September 20th, 2022 - FLYNN formally reported her still unaddressed findings and concerns to Jeff Glowacki and then, at Mr. Glowackis’s request, to BURSTIN. It was explained to FLYNN that BURSTIN was responsible for the office’s supervisory obligations and for enforcing policies and procedures. BURSTIN would conduct an internal investigation and provide FLYNN with all required assurances in writing to address FLYNN’S perceived conflicts of interest and to be able to determine how best to proceed with any transaction related to the property. This investigation was to take no more than 30 days. BURSTIN to date has never addressed these reported concerns.

35. Given BESSEMER’s knowledge of FLYNN'S background, and contracted work for and consulting with financial entities and government agencies, BURSTIN, and DWYER knew that this matter created a conflict for plaintiff and that she my lose a substantial amount of work, and it put her company at risk if the conflict wasn’t resolved. In response, BURSTIN, as the Managing Director and Director of Client Advisory for BESSEMER, threatened FLYNN by stating “Uh oh, I guess I better make the story I told to the IRS true. Ha ha ha!” He also called FLYNN a “good girl,” and told her that he knew and appreciated that she wouldn’t report this to anyone because it would be bad for my friend Tara and probably worse for FLYNN. BURSTIN then stated: “We are going to have to find another way to address this. Reporting this to the assessor’s office or trying to correct our tax records will trigger an audit for all of our clients." As a result of these issues not being corrected, FLYNN has suffered a substantial loss to her livelihood.

36. The discovered misdeeds of BESSEMER led to further retaliation in the form of a Notice to Vacate on May 27, 2023, with a threat to demolish the property, and with BURSTIN on one occasion threatening FLYNN stating “If you care about your family’s safety you will leave the house” and offering FLYNN a one time $60,000 payment to go away.

154. As set forth in paragraphs 20, and 32 through 36 of this complaint, BESSEMER, ETB, DWYER, KIM, BURSTIN and DOES 131 through 140, and each of them, knew of FLYNN’s business background and that FLYNN’s business operations and relationships involved existing contracted work and consulting with financial entities and government agencies. Said defendants were also aware of her existing business and about its imminent sale for which defendants Dwyer and BURSTIN expressed a desire to have BESSEMER become a part of.

158. Flynn is informed and believes, and thereupon alleges that BESSEMER, ETB, DWYER, KIM, BURSTIN and DOES 131 through 140 willfully and deliberately committed the wrongful acts alleged herein with the intent to harm FLYNN financially to cause existing clients, prospective clients, and others to sever their present and prospective business relationships with FLYNN.

160. As a proximate result of such wrongful acts, FLYNN has suffered injury and damage to her business and goodwill in an amount to conform to proof at trial, but in no event less than the jurisdictional minimum of this Court.

(FAC ¶¶ 20, 32-36, 154, 158, 160.) Thus, Plaintiffs adequately allege that (1) Flynn had economic relationships doing contract and consulting work for financial entities and government agencies; (2) Defendants knew about these relationships; (3) Defendants had Flynn move in and perform due diligence for them on the subject property, knowing it had numerous code violations and was legally uninhabitable; (4) Flynn’s involvement with Defendants’ property did disrupt those relationships, (5) causing Flynn to suffer “substantial losses to her livelihood[.]”

Therefore, Plaintiffs have adequately stated a cause of action for intentional and/or negligent interference with prospective economic advantage.

v. Thirteenth Cause of Action – Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [cleaned up]; see also CACI 1600 (2023).)

186. Defendants’ conduct mentioned above, as alleged in this amended complaint, was extreme and outrageous, deliberate, and willful and done in reckless disregard of causing Plaintiffs emotional distress.

187. As a proximate result of said Defendants’ conduct and the consequences proximately caused by it, as hereinabove alleged, Plaintiffs suffered severe humiliation, mental anguish, and emotional and physical distress, and has been injured in mind and body as set forth above to Plaintiffs’ damage in an amount to be proven at the time of trial.

188. As a further direct and proximate result of this conduct, and the emotional distress suffered as a consequence, Plaintiffs expect to incur additional expenses to Plaintiffs’ damage in an amount to be proven at the time of trial.

Defendants argue that Plaintiff’s inclusion of the term “extreme and outrageous” is too conclusory to state a claim.

The Court disagrees. Whether Defendants’ alleged conduct of knowingly leasing uninhabitable premises to Plaintiffs; knowingly straining Flynn’s business relationships with financial institutions and government entities by having Flynn conduct due diligence for the property on behalf of Defendants and coercing Flynn not to report her findings; and retaliating by threatening to evict Flynn are ultimately true or rise to the level of “extreme and outrageous” conduct is a factual inquiry to be determined at later stages of the litigation.

Therefore, the Court overrules Defendants’ demurrer to the thirteenth cause of action.

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiffs simply request leave to amend the complaint, but do not provide any factual details they could add to cure the deficiencies identified.

However, because the deficiency in the third cause of action is simply combining two causes of action into one, that defect can be remediated by re-pleading the allegations as two separate causes of action. Therefore, as to the third cause of action only, the Court grants Plaintiffs leave to amend to allege separate causes of action for trespass and nuisance.

For the reasons stated, the Court sustains Defendants’ demurrer to the third cause of action on the basis of uncertainty with leave to amend.

The Court sustains Defendant E&TB’s demurrer to the fifth cause of action for failure to state a cause of action without leave to amend. The Court overrules the remaining Defendants’ demurrers to the fifth cause of action in all other respects.

The Court overrules Defendants’ demurrers to the eighth, ninth, tenth, eleventh, and thirteenth causes of action in their entirety.

Plaintiffs shall file and serve a second amended complaint in accordance with this order on or before February 20, 2024.

Defendants shall provide notice of the Court’s ruling and file a proof of service regarding the same.

[1] The Court notes that although the demurrer ends at page 20, the memorandum begins on page 6, and therefore the demurrer falls within the applicable 15-page limit. (See California Rule of Court 3.1113(d) [“The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.”])

DEPARTMENT	207
HEARING DATE	February 6, 2024
CASE NUMBER	23SMCV01044
MOTION	Demurrer
MOVING PARTIES	Defendants The Bessemer Trust Company of California, N.A.; E&TB Investments, LLC; Tara Daughrity Broida; Steven J. Dwyer; and Elizabeth Kim
OPPOSING PARTIES	Plaintiffs Jennifer Flynn Adams and Christoper Adams