Judge: Monica Bachner, Case: 19STCV24571, Date: 2023-04-05 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV24571    Hearing Date: April 5, 2023    Dept: 71

Defendant Harold G. Becks’ demurrer to Plaintiff Carla Langley’s entire Complaint and the 1st and 2nd causes of action is overruled.

Defendant’s motion to strike is granted as to Prayer ¶7 at page 15:4, the words, “reasonable attorneys’ fees,” and denied as to Plaintiff’s request for punitive and exemplary damages. Plaintiff is granted leave to amend within 20 days. 

          Defendant Harold G. Becks (“Becks”) (“Defendant”) demurs to Plaintiff Carla Langley’s (“Langley”) (“Plaintiff”) Complaint.  (Notice of Demurrer, pgs. 1-2.)

This action arises out of Plaintiff and Defendant alleged entry into a written contract for real property located at 5636 S. Garth Avenue, Los Angeles, California 90056-1311 (“Subject Property”).  (Complaint ¶5.)  Plaintiff alleges on or about April 15, 2021, Plaintiff and Defendant entered into a lease agreement (the “Lease”) and purchase contract (“Purchase Contract”) regarding the Subject Property.  (Complaint ¶¶5, 6, 7, 8, Exhs. A, B.)  Plaintiff alleges at the time the Lease and Purchase Contract were signed Plaintiff was not represented by an attorney.  (Complaint ¶9.)  Plaintiff alleges Defendant is an attorney and failed to have Plaintiff sign any waiver or acknowledgement that Plaintiff had the opportunity to be represented by counsel in connection with the Purchase Contract and the transactions contemplated by the Purchase Contract.  (Complaint ¶10.)  Plaintiff alleges at the time of the execution of the Purchase Contract, Plaintiff gave Defendant a $50,000 deposit for the Purchase Contract.  (Complaint ¶11.)  Plaintiff alleges Defendant repudiated the Purchase Agreement without cause in writing on June 28, 2021, and on June 30, 2021.  (Complaint ¶28, Exh. D at pg. 2.)  Plaintiff alleges to date Defendant refuses to return the $50,000 deposit paid by Plaintiff.  (Complaint ¶14.)  Plaintiff alleges on information and belief that Defendant has spent the $50,000 deposit.   (Complaint ¶14.)  Plaintiff alleges Defendant would pinch her butt, run his hands across her breasts and/or try to kiss her.  (Complaint ¶16.)

On July 20, 2022, Plaintiff filed her complaint alleging eight causes of action: (1) breach of contract, (2) misrepresentation and fraud, (3) breach of warranty of habitability, (4) negligent infliction of emotional distress (“NIED”), (5) intentional infliction of emotional distress (“IIED”), (6) unjust enrichment, (7) breach of covenant of good faith and fair dealing, and (8) violation of Business and Professions Code §§17200 et seq.  On September 2, 2022, Defendant filed the instant demurrer and accompanying motion to strike.  On March 27, 2023, Plaintiff filed her oppositions to the demurrer and motion to strike.  As of the date of this hearing, Defendant has not filed a reply.

Summary of Demurrer

In support of his demurrer to Plaintiff’s entire Complaint, Defendant argues Plaintiff’s Complaint is uncertain as to the nature of the relief sought.   (Demurrer, pgs. 7-8.)  Defendant argues the entire Complaint fails because conditions precedent to the initiation of the instant action were not fulfilled.  (Demurrer, pgs. 8-9.)  Defendant argues the 1st cause of action’s request for damages is inconsistent with claims for recission and may not be asserted within the same cause of action.   (Demurrer, pgs. 9-10.)  Defendant argues to the extent Plaintiff’s claims are construed as seeking recission, Plaintiff has not pled the procedural requirement for recission.  (Demurrer, pgs. 10-11.)  Defendant argues the 1st cause of action fails to plead the elements of a cause of action.  (Demurrer, pgs. 11-12.)  Defendant argues Plaintiff’s 2nd cause of action fails to plead fraud with specificity as to every element of the cause of action and is uncertain as to the remedy sought.  (Demurrer, pgs. 12-13.)   

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.  (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Uncertainty

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Entire Complaint, Breach of Contract, and Fraud (1st & 2nd COAs)

          Defendant argues Plaintiff’s entire Complaint, the 1st cause of action for breach of contract, and the 2nd cause of action for fraud are uncertain because it cannot be ascertained whether Plaintiff is seeking to enforce the agreement and to purchase the Subject Property, or whether Plaintiff is seeking to rescind the agreement and merely obtain the return of funds she alleged paid pursuant to the agreement.  Defendant argues ¶10 alleges facts attempting to establish the Purchase Contract was unenforceable, and in ¶¶28-29, Plaintiff asserts the Purchase Contract was essentially disavowed by Defendant, and the remedy for breach of contract in the 1st cause of action is damages for the sum of $50,000.00, i.e., the deposit amount.   Defendant argues ¶31 incorporates all the allegations in ¶¶1-30 of the Complaint, meaning the uncertainty as to the basic theory of liability also permeates the fraud cause of action.

          Defendant’s demurrer on the basis of uncertainty is unavailing.  Plaintiff’s Complaint is sufficiently clear to reasonably determine the issues Defendant must admit or deny, or what counts or claims are directed against him.  (Khoury, 14 Cal.App.4th at pg. 616.)  A motion to strike, not a general demurrer, is the procedure to attack an improper claim for damages or other remedy demanded in the complaint.  A demurrer challenges only the sufficiency of the cause of action pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action.  (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

Accordingly, Defendant’s demurrer to the entire Complaint and the 1st and 2nd causes of action on the basis of uncertainty is overruled.

          Failure to State a Claim

          Entire Complaint

          Defendant argues every cause of action in Plaintiff’s Complaint fails to allege the conditions precedent to the instigation of this action were fulfilled.  Defendant argues ¶22A of the Purchase Contract states, “The parties agree to mediate any dispute or claim arising between them out of this agreement, or any resulting transaction, before resorting to arbitration or court action . . . .”  (Complaint, Exh. A at pg. 8.)  Defendant argues ¶35A of the Lease also provides for mandatory mediation of any dispute arising out of the Lease or any resulting transaction.   (Complaint, Exh. B at pg. 6.)   Plaintiff does not argue the issue Defendant raises regarding the failure to allege conditions precedent, thereby conceding Defendant’s argument.  (See Opposition.)  However, the conditions precedent are not essential elements of each of Plaintiff’s causes of action and therefore do not need to be alleged at the demurrer stage.   Further, according to the Purchase Agreement, “[i]f, for any dispute or claim to which [¶22A] applies, any Party commences an action without first attempting to resolve the matter through mediation, or before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.”   (Complaint, Exh. A at pg. 8; see also Exh. B at pg. 6 [stating substantially similar clause in Lease Agreement].)  As such, the clauses Defendant argues are conditions precedent to each cause of action only affects an award of attorneys’ fees based on contract claims and is not a condition precedent to the filing of the instant matter.

          Accordingly, Defendant’s demurrer to the entire Complaint for failure to state a claim is overruled.

Breach of Contract (1st COA)

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

Plaintiff alleges she and Defendant entered into a written contract, the Purchase Contract, for the purchase of the Subject Property.  (Complaint ¶18.)  Plaintiff alleges pursuant to the Purchase Contract she tendered the initial $50,000.00 deposit.  (Complaint ¶19.)  Plaintiff alleges shortly after receiving the deposit, Defendant cancelled the Purchase Contract.  (Complaint ¶20.)  Plaintiff alleges pursuant to the Lease, Plaintiff was supposed to take possession on or after May 15, 2021, and Plaintiff began renovations on or about May 3, 2021, but did not move in until June 15, 2021.  (Complaint ¶21.)  Plaintiff alleges [Defendant’s] son (Marcus) was living in the premises at the time, and Defendant would come by every single morning and look at the renovations and would bring lunch sometimes for everyone at the house.  (Complaint ¶21.)  Plaintiff there are letters dated June 28, 2021, and June 30, 2021, from Defendant to Plaintiff indicating that Plaintiff had permission to do the renovations.   (Complaint ¶21.)  Plaintiff alleges when she leased the Subject Property and entered into the Lease and Contract, she was told that she was leasing a 6-bedroom, 6-bathroom home with a 2 car garage, no other persons were to be in possession of any portion of the premises, including the garage, and no other persons were to be storing their personal items in any portion of the premises, including the garage.  (Complaint ¶22.)  Plaintiff alleges she moved into the Premises on or about June 15, 2021, and the renovations were complete at that time.  (Complaint ¶23.)  Plaintiff alleges Defendant started making strange comments to Plaintiff such as the following: “I was hoping to find you naked,” and “You don’t have to lock the doors; I know how to get in my house.”  (Complaint ¶23.)  Plaintiff alleges on June 19, 2021, after all of the work was performed by or on behalf of Plaintiff, Defendant asked for credit report and cancelled the contract with Plaintiff.  (Complaint ¶24.)  Plaintiff alleges shortly after Defendant received the deposit on the Purchase Contract, Defendant informed Plaintiff that he was canceling the contract, but he refused to return the deposit.  (Complaint ¶24.)  Plaintiff alleges Defendant left his personal property in the garage at the premises and let his son live there.  (Complaint ¶25.)  Plaintiff alleges the monthly lease is $5,300 but Defendant has given no deductions for the person (and that person’s girlfriend) occupying a bedroom and a bathroom, and no deduction for Plaintiff’s inability to use the two-car garage due to Defendant’s son residing in the garage and Defendant’s use of the garage to store his own personal belongings.  (Complaint ¶25.)  Plaintiff alleges there is no mention in the Lease of anyone other than Plaintiff using the garage and/or of Defendant using the garage.  (Complaint ¶25.)  Plaintiff alleges Defendant has placed a padlock on the garage thereby denying Plaintiff use and access to the garage, and as a result, Plaintiff has had to incur monthly storage costs because Plaintiff has been unable to use the garage for storage or otherwise.  (Complaint ¶25.)  Plaintiff alleges in violation of the terms of the Lease ¶¶11a-11d, which requires Defendant to pay the gardener, Defendant stopped paying the gardener and the gardener quit in approximately November 2021.  (Complaint ¶26.)  Plaintiff alleges she has had to hire a new gardener and pay the gardener approximately $200.00 per month since approximately December 1, 2021, because Defendant has not hired another gardener since the former gardener quit.   (Complaint ¶26.)  Plaintiff alleges in violation of the terms of the Lease ¶11d, which requires Defendant to pay the pool man, Defendant has not paid the pool man in approximately six (6) months and the pool man is threatening to quit.  (Complaint ¶27.)  Plaintiff alleges Defendant disclaimed the Purchase Contract in writing on June 28, 2021, and on June 30, 2021, stating, “Once again, let me categorically state, you do not have a Sales Agreement with me for the sale of 5636 Garth Avenue.”  (Complaint ¶28; see Exh. D at pg. 2.)   Plaintiff alleges Defendant did not return the deposit at the time of cancellation and to date refuses to return the deposit, and as a result of Defendant’s breach of the Purchase Contract, Plaintiff has been damaged in the amount of $50,000.00, plus interest.  (Complaint ¶29.)  Plaintiff alleges as further result of Defendant’s breach, Plaintiff has sustained consequential, incidental, and special damages in an amount to be proven at trial.  (Complaint ¶30.)

Defendant argues Plaintiff’s claim for damages for breach of contract is inconsistent with claims for recission and may not be asserted within the same cause of action.  (Davis v. Rite-Lite Sales Co. (1937) 8 Cal.2d 675, 678-679; Lenard v. Edmonds (1957) 151 Cal.App.2d 764, 768.)   Plaintiff sufficiently alleges the elements for a breach of contract cause of action, including damages.  As stated above, a motion to strike, not a general demurrer, is the procedure to attack an improper claim for damages or other remedy; a demand for improper relief does not vitiate an otherwise valid cause of action.  (Venice Town Council, Inc., 47 Cal.App.4th at pgs. 1561-1562.)

Accordingly, Defendant’s demurrer to the 1st cause of action for failure to state a claim is overruled.

Fraud (2nd COA)

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiff alleges Defendant promised to sell Plaintiff the Subject Property.  (Complaint ¶32.)  Plaintiff alleges on information and belief that Defendant made the promise to sell the Subject Property with no intention of selling the Subject Property to Plaintiff.   (Complaint ¶33.)  Plaintiff alleges on information and belief that Defendant intended to induce Plaintiff’s reliance on his promise to sell the Subject Property, by executing the Lease and Purchase Contract.  (Complaint ¶34.)  Plaintiff alleges she justifiably relied on Defendant’s promise to sell the Subject Property, as evidenced by Plaintiff’s payment of the $50,000.00 deposit.   (Complaint ¶35.)  Plaintiff alleges Defendant disclaimed and cancelled the Purchase Contract in writing on June 28 and 30, 2021, shortly after receiving Plaintiff’s deposit.  (Complaint ¶36.)  Plaintiff alleges, based upon Defendant’s misrepresentations and fraud as alleged, Plaintiff made repairs, upgrades, improvements, and/or renovations to the property that not only were at the expense of Plaintiff and to the benefit of Defendant, but also increased the value of the property, and as such, Plaintiff is entitled to restitution and the value of those improvements and the increased value given to the property, otherwise Defendant will be unjustly enriched.  (Complaint ¶37.)  Plaintiff alleges a current estimate of the costs of the repairs, upgrades, improvements, and/or renovations to the property to be approximately $150,000.00.   (Complaint ¶37.)  Plaintiff alleges on information and belief that the repairs, upgrades, improvements, and/or renovations to the property increased by the value of the property by at least $50,000.00 to date.  (Complaint ¶37.)  Plaintiff alleges all of the repairs, upgrades, improvements, and/or renovations to the property were completed by June 30, 2022, and Defendant was fully aware of the work Plaintiff was doing on the premises as a result of the agreements with and representations by Defendant.  (Complaint ¶37.)  Plaintiff alleges as a proximate result of Defendant’s conduct she has been damaged in the amount of $450,000.00.  (Complaint ¶38.)  Plaintiff alleges Defendant committed the acts alleged maliciously, fraudulently, and oppressively with the wrongful intention of injuring Plaintiff, and as such, Plaintiff is entitled to punitive damages against Defendant.

Defendant argues Plaintiff’s cause of action fails because Plaintiff failed to plead the elements of breach of contract.  In light of the Court’s ruling on Plaintiff’s 1st cause of action for breach of contract, Defendant’s demurrer to the 2nd cause of action for failure to state a claim is overruled.

Defendant moves to strike the following portions of Plaintiff’s Complaint: (1) ¶72 on page 13:9-22; (2) ¶72 on page 13:21-22, the words, “Plaintiff request punitive damages against Defendants in the amount to be proven at the time of trial”; and (3) Prayer ¶7 on page 15:4, the words, “reasonable attorneys’ fees.”  (Notice MTS, pgs. 1-2.)

Legal Standard

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or 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.” 

A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.  (C.C.P. §437.)  Conclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint.  (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [“The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” (Citations.)].)

Attorneys’ Fees

An award of attorney’s fees is proper when authorized by contract, statute, or law.  (C.C.P. §1032(b), §1033.5(a)(10).)

Defendant argues the only statute referenced in the Complaint is Business and Professions Code §17200, which does not provide for the right to attorney’s fees in an action based on the statute.  (See, e.g., America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 15 n.10; Shadoan v. World Savings & Loan Association (1990) 219 Cal.App.3d 97, 108 n.7.)  Where a contract provides for mediation before resort to suit, failure to mediate deprives that party of the right to attorney’s fees where, as here, the right to fees is conditioned on mediation.  (See, e.g., Lange v. Schilling (2008) 163 Cal.App.4th 1412, 1416.)  The Purchase Agreement states, “[i]f, for any dispute or claim to which [¶22A] applies, any Party commences an action without first attempting to resolve the matter through mediation, or before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.”  (Complaint, Exh. A at pg. 8; see also Exh. B at pg. 6 [stating substantially similar clause in Lease Agreement ¶35A].)  Plaintiff fails to allege that mediation has occurred or that she has demanded mediation.  Plaintiff does not argue the issue of entitlement to attorneys’ fees in her opposition and thereby concedes the issue of attorneys’ fees on this motion.

Accordingly, Defendant’s motion to strike Prayer ¶7 at page 15:4, the words, “reasonable attorneys’ fees” is granted.  

Punitive and Exemplary Damages

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression.  (Civ. Code § 3294(a).)  “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights.  (Id.)  “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury.  (Id.)  Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Defendant is not entitled to a motion to strike Plaintiff’s request for punitive damages because Plaintiff has pleaded the ultimate facts showing an entitlement to such relief.  Defendant’s argument that Plaintiff is not entitled to punitive damages as a matter of law because the instant case is not an insurance dispute is unavailing. Plaintiff’s Complaint sufficiently alleges habitability issues at the Subject Property which Defendants allowed to continue to exist in conscious disregard of Plaintiff’s disability sufficient to demonstrate malice and oppression.    (See, e.g., Complaint ¶¶26-30, 32, 39-40, 52-61, 71-77, 113, 129, 135, 146 158, 186-188, 194, 203, 209, 216-217, 229-233; Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 916-917, 922 [establishing tenant can state a cause of action in tort against landlord for damages resulting from a breach of the implied warranty of habitability]; Garcia v. Myllyla (2019) 40 Cal.App.5th 990, 999 [landlord’s fraudulent conduct supported economic damages in form of rent abatement, noneconomic damages and punitive damages in tenants’ action for negligence, breach of implied warranty of habitability, premises liability, negligent failure to provide habitable premises, breach of implied covenant of quiet enjoyment, intentional inflection of emotional distress and nuisance alleging uninhabitable building where landlord falsely told city housing department that building was not rented and was only occupied by family members to avoid inspection]; Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 [finding tenant stated viable cause of action for tortious violation of breach of warranty of habitability against former landlord and buyer at foreclosure sale where former landlord cut off all utilities, resulting in property being “red-tagged” for substandard habitability conditions, and buyer at foreclosure sale failed to restore premises to habitable condition].)   Here, Plaintiff’s causes of action in tort for fraud, breach of warranty of habitability, and IIED support a prayer for punitive damages.

Accordingly, Defendants’ motion to strike ¶72 and Plaintiff’s prayer for punitive and exemplary damages is denied.

Dated:  April 3, 2023

Hon. Daniel P. Ramirez

Judge of the Superior Court