Judge: Michael P. Linfield, Case: 23STCV14076, Date: 2023-11-28 Tentative Ruling
Case Number: 23STCV14076 Hearing Date: November 28, 2023 Dept: 34
SUBJECT: Demurrer
to First Amended Complaint
Moving Party: Defendants
Oakwood Villa HOA and AMP Management & Investment Co., Inc.
Resp. Party: Plaintiffs Joseph Greskoviak and Christina
Reninger
SUBJECT: Motion to
Strike Portions of First Amended Complaint
Moving Party: Defendants
Oakwood Villa HOA and AMP Management & Investment Co., Inc.
Resp. Party: Plaintiffs Joseph Greskoviak and Christina
Reninger
The Demurrer is OVERRULED.
The Motion to Strike is DENIED.
BACKGROUND:
On June
16, 2023, Plaintiffs Joseph Greskoviak and Christina Reninger filed their
Complaint against Defendants Oakwood Villa HOA and AMP Management &
Investment Co., Inc. on causes of action arising from damages to Plaintiffs’
real property.
On
September 26, 2023, Plaintiffs filed their First Amended Complaint (FAC).
On
October 30, 2023, Defendants filed their Demurrer to First Amended Complaint
(“Demurrer”) and their Motion to Strike Portions of First Amended Complaint
(“Motion to Strike”). Defendants concurrently filed a proposed order with each
of these filings.
On November
13, 2023, Plaintiffs filed their Opposition to the Demurrer and their
Opposition to the Motion to Strike.
On
November 17, 2023, Defendants filed their Reply regarding the Demurrer and
their Reply regarding the Motion to Strike.
ANALYSIS:
The Court first considers
the Demurrer. The Court then considers the Motion to Strike.
I.
Demurrer
A. Legal
Standard
A
demurrer is a pleading used to test the legal sufficiency of other pleadings.
It raises issues of law, not fact, regarding the form or content of the
opposing party’s pleading. It is not the function of the demurrer to challenge
the truthfulness of the complaint; and for purpose of the ruling on the
demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)¿
¿¿¿
A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack; or from matters outside the pleading that are judicially
noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic
evidence can be considered (i.e., no “speaking demurrers”). A demurrer is
brought under Code of Civil Procedure section 430.10 (grounds), section 430.30
(as to any matter on its face or from which judicial notice may be taken), and
section 430.50(a) (can be taken to the entire complaint or any cause of action
within).¿¿
¿¿¿¿
A
demurrer may be brought under Code of Civil Procedure section 430.10,
subdivision (e) if insufficient facts are stated to support the cause of action
asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10,
subdivision (f)), is disfavored and will only be sustained where the pleading
is so bad that defendant cannot reasonably respond—i.e., cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are
directed against him/her. (Khoury v. Maly's of Cal., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Id.)¿¿¿
B. Discussion
Defendants demur to the first six causes of
action in the FAC. For ease of analysis, the Court considers the causes of
action in the order they are addressed in the Demurrer, not in numerical order.
1.
First Cause of Action — Breach of Governing
Documents
a. Legal
Standard
To state a cause of action for breach of
contract, a plaintiff 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
W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
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 an action based on a written contract, a
plaintiff may plead the legal effect of the contract rather than its precise
language.” (Constr. Protection Servs., Inc. v. TIG Specialty Ins. Co.
(2002) 29 Cal.4th 189, 198–199.)
b. Discussion
Defendants demur to the first cause of action
for breach of governing documents (which is essentially a cause of action for
breach of contract), arguing: (1) that Plaintiffs pleaded the contract and the
duties under the contract, but that Plaintiffs did not plead the supporting
facts of Defendants’ alleged breach; and (2) Plaintiffs provide contradicting
statements, rendering their allegations untrustworthy. (Demurrer, p. 7:3–5,
7:15–16.)
The Court disagrees with Defendants’
arguments. Plaintiffs clearly allege that the breach was “Defendants’ refusal
and failure to repair, maintain and waterproof the exterior wall to prevent
water intrusion”. (FAC, ¶ 33.) There is nothing contradictory about this
allegation.
The Court OVERRULES the Demurrer to the first
cause of action.
2.
Third Cause of Action — Breach of Covenant of Good
Faith and Fair Dealing
a. Legal
Standard
“A breach of the implied covenant of good
faith and fair dealing involves something beyond breach of the contractual duty
itself and it has been held that bad faith implies unfair dealing rather than
mistaken judgment.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc.
(1990) 222 Cal.App.3d 1371, 1394.)
“If the allegations do not go beyond the
statement of a mere contract breach and, relying on the same alleged acts, simply
seek the same damages or other relief already claimed in a companion contract
cause of action, they may be disregarded as superfluous as no additional claim
is actually stated. . . . [T]he only justification for asserting a separate
cause of action for breach of the implied covenant is to obtain a tort
recovery.” (Careau & Co., supra, at pp. 1394–1395.)
To recover in tort for breach of the implied covenant,
the defendant must “have acted unreasonably or without proper cause.” (Careau
& Co., supra, at p. 1395, citations and italics omitted.)
b. Discussion
Defendants demur to the third cause of action
for breach of covenant of good faith and fair dealing, arguing that this cause
of action is superfluous because the allegations do nothing more than allege a
mere contract breach. (Demurrer, p. 8:7–12.)
The Court disagrees with Defendants’
argument. The allegations made are sufficient for a reasonable trier of fact to
find that the relevant tort has occurred here. (FAC, ¶¶ 44–47.) Thus,
Plaintiffs’ pleading of this cause of action is not superfluous.
Further,
if this cause of action is truly superfluous, then defense counsel is simply
wasting its time and money demurring to it.
“[I]t is a waste of time and judicial resources to entertain a
motion challenging part of a pleading on the sole ground of repetitiveness.
(See Civ.Code, § 3537 [“Superfluity does not vitiate”].) This is the sort of
defect that, if it justifies any judicial intervention at all, is ordinarily
dealt with most economically at trial, or on a dispositive motion such as
summary judgment.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162
Cal.App.4th 858, 890.)
The Court OVERRULES the
Demurrer to the third cause of action for breach of covenant of good faith and
fair dealing.
3. Fifth
Cause of Action — Negligence
a. Legal
Standard
In order to state a claim for negligence,
Plaintiff must allege the elements of (1) “the existence of a legal duty of
care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an
injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664,
671.)
b. Discussion
Defendants demur to the fifth cause of action
for negligence, arguing that Plaintiffs do not plead the necessary facts to
establish negligence. (Demurrer, p. 8:21.)
The Court disagrees with
Defendants’ argument.
Among other things,
Plaintiffs allege: (1) that by operation of the relevant contracts, Defendants
owe Plaintiffs a fiduciary duty of care; (2) that Defendants breached their
duties by failing to comply with their duties and obligations set out in the
relevant contracts (specifically by not properly maintaining, repairing, and waterproofing
the exterior wall of the building, Plaintiffs’ unit, and the common areas); and
(3) that as a result of Defendants’ breach, Plaintiffs have suffered and
continue to suffer damages. (FAC, ¶¶ 36, 42–43.)
These allegations are
sufficient to plead all of the elements for a cause of action of negligence.
The Court OVERRULES the
Demurrer to the fifth cause of action for negligence.
4. Second
Cause of Action — Breach of Fiduciary Duties
a. Legal
Standard
“The elements of a cause
of action for breach of fiduciary duty are the existence of a fiduciary
relationship, its breach, and damage proximately caused by that breach.” (City
of Atascadero v. Merrill Lynch, Pierce, Fenner, & Smith, Inc. (1998) 68
Cal.App.4th 445, 483.)
“There are¿two kinds¿of
fiduciary duties — those imposed by law and those undertaken by agreement.” (Gab
Bus. Servs. v. Lindsey & Newsom Claim Servs. (2000) 83 Cal.App.4th 409,
416, emphasis omitted, overruled in part on other grounds by Reeves v.
Hanlon (2004) 33 Cal.4th 1140, 1154.)
“Fiduciary duties are imposed by law in certain technical, legal relationships such
as those between partners or joint venturers, husbands and wives, guardians and
wards, trustees and beneficiaries, principals and agents, and attorneys and
clients.” (Id., citations omitted.)
“A fiduciary duty is
undertaken by agreement when one person enters into a confidential relationship with another.” (Id. at 417.)
b. Discussion
Defendants demur to the second cause of
action for breach of fiduciary duties, arguing: (1) that Plaintiffs do not
state facts sufficient to constitute a cause of action against Defendants; and
(2) that the allegations pleaded are uncertain. (Demurrer, p. 9:26–27.)
The Court disagrees with these arguments. The
exact same allegations made regarding the fifth cause of action for negligence
are also sufficient to plead the second cause of action for breach of fiduciary
duties.
The Court OVERRULES the Demurrer to the
second cause of action for breach of fiduciary duties.
5.
Sixth Cause of Action — Negligent Infliction of
Emotional Distress
a. Legal
Standard
“The
negligent causing of emotional distress is not an independent tort but the tort
of negligence.” (Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989)
48 Cal.3d 583, 588 [cleaned up]; see also Christensen v. Super. Ct. (1991)
54 Cal.3d 868, 884.)
b. Discussion
Defendants demur to the sixth cause of action
for negligent infliction of emotional distress, arguing that it is duplicative
of the fifth cause of action for negligence. (Demurrer, p. 11:14–17.)
The
Court disagrees with Defendants’ argument.
First,
in section IB(3)above, the Court discussed how the elements of negligence have
been sufficiently pleaded.
Second,
it is true that negligent infliction of emotional distress is just another way
of establishing a cause of action for negligence. (Marlene F., supra,
at p. 588.) However, “[t]he court must, in every stage of an action, disregard any error,
improper ruling, instruction, or defect, in the pleadings and proceedings
which, in the opinion of said court, does not affect the substantial rights of
the parties. . . .”¿ (Code Civ. Proc., § 475.)¿ Even if the Court sustained the
Demurrer on these grounds, the theory of liability would still be available
through the fifth cause of action for negligence.
The Court
OVERRULES the Demurrer to the sixth cause of action.
6.
Fourth Cause of Action — Breach of Covenant of Quiet
Enjoyment
a. Legal
Standard
“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment,
whereby the landlord impliedly covenants that the tenant shall have quiet
enjoyment and possession of the premises. The covenant of quiet enjoyment
insulates the tenant against any act or omission on the part of the landlord,
or anyone claiming under him, which interferes with a tenant's right to use and
enjoy the premises for the purposes contemplated by the tenancy.” (Andrews
v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588, internal citations,
italics, and quotation marks omitted.)
“The implied covenant of quiet enjoyment implies a term in a
contract, and a breach of the covenant gives rise to an action in contract.” (Ginsberg
v. Gamson (205 Cal.App.873, 896.)
“While a claim
for breach of the covenant of quiet enjoyment is similar to a constructive
eviction claim, the critical difference is that the latter claim may not be
brought until the tenant has vacated the property. Thus, breach of the implied
covenant of quiet enjoyment can be understood as a title encompassing claims for
wrongful eviction, and also claims in which the tenant's use of the premises is
disturbed, but the tenant remains in possession.” (Ginsberg, supra,
205 Cal.App.4th at p. 898, citation and internal quotation marks omitted.)
“In summary, California case law has recognized a tort cause
of action for wrongful eviction, including breaches of the covenant of quiet
enjoyment that compel a tenant to vacate, whereas breach of covenant of quiet
enjoyment that does not result in a wrongful constructive or actual eviction is
a breach of contract.” (Bevis v. Terrace View Partners, LP (2019) 33
Cal.App.5th 230, 250, citation omitted.)
b. Discussion
Defendants demur to the fourth cause of
action for breach of covenant of quiet enjoyment, arguing: (1) that Plaintiffs
do not identify which terms of the relevant contracts are applicable here; and
(2) that Plaintiffs do not identify specific instances pertaining to the purported
breach. (Demurrer, p. 12:6–8.)
The Court disagrees with Defendants’
arguments.
First, the covenant is implied; Plaintiffs
need not cite specific parts of the contracts because the covenant will not be
in any specific parts of the contracts.
Second, Plaintiffs alleged disturbances to
their unit as the cause of the breach, and earlier in their FAC they alleged
damages from water, mold, and other issues that have caused their breach. (FAC,
¶¶ 16–20, 52.) These are sufficient to allege the purported breach.
The Court OVERRULES the Demurrer to the
fourth cause of action.
C. Conclusion
The Demurrer is OVERRULED.
II. Motion
to Strike
A. Legal
Standard
Any party, within the time allowed to respond to
a pleading, may serve and file a notice of motion to strike the whole or any
part thereof. (Code Civ. Proc., § 435, subd. (b)(1)). The notice of motion to
strike a portion of a pleading shall quote in full the portions sought to be
stricken except where the motion is to strike an entire paragraph, cause of
action, count or defense. (Cal. Rules of Court Rule 3.1322.)
The grounds for a motion to strike shall
appear on the face of the challenged pleading or form any matter of which the
court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)
The court then may strike out any irrelevant, false, or improper matter
inserted in any pleading and strike out 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.)
When the defect which justifies striking a
complaint is capable of cure, the court should allow leave to amend. (Perlman
v. Mun. Ct. (1979) 99 Cal.App.3d 568, 575.)
B. Discussion
Defendants move the Court to strike various
portions of the FAC that allege Defendants’ breaches of duty, Plaintiffs’
suffering, and Plaintiffs’ request for exemplary damages. (Motion to Strike, p.
2:6–25.)
It is not
appropriate to strike these allegations. Plaintiffs are entitled to allege that
Defendants breached their duty, that Plaintiffs have suffered, and that
Defendants should be liable for exemplary damages. It will ultimately be up to
the jury to decide if Plaintiffs have met their burden to prove that they are
entitled to the relief they seek.
The
Court DENIES the Motion to Strike.
C. Conclusion
The Motion to Strike is DENIED.