Judge: Monica Bachner, Case: 20STCV17928, Date: 2022-07-27 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: 20STCV17928    Hearing Date: July 27, 2022    Dept: 71

 

 

Superior Court of California

County of Los Angeles

 

DEPARTMENT 71

 

TENTATIVE RULING

 

BOGOTA CORPORATION, 

 

         vs.

 

LEWIS SEIDEN, et al.

 Case No.:  20STCV17928

 

 

 

 Hearing Date:  July 27, 2022

 

Cross-Defendants’ motion to strike the first amended cross-complaint is denied.

 

Cross-Defendants’ demurrer to the first amended cross-complaint is sustained as to the 1st, 2nd, 4th (as to KGM3), and 5th causes of action with leave to amend within 20 days and as to the 3rd and 4th (as to Steve, Randi, and CMS) causes of action without leave to amend.

         

  1. Motion to Strike

     

    Cros-Defendants Craig Steven Den Besten (“Steve”), Randi Den Besten (“Randi”), KGM3 LLC (“KGM3”), and CMS Construction, Inc. (“CMS”) (collectively “Cross-Defendants”) move to strike the first amended cross-complaint (“FACC”) of Cross-Complainant Lewis Seiden (“Seiden”).  Cross-Defendants move to strike the FACC on the grounds it was not filed in conformity with the law since it was filed after the Court set a trial date and without leave of Court.  (C.C.P. §428.50(b).)

     

    Cross-Defendants’ 1/21/22 request for judicial notice is denied as to the docket for the instant action and as to the October 7, 2020 Minute Order, for which there is no need to take judicial notice because the Court can always review the file for the case at hand.  (RJN, Exhs. A, B.) 

     

    Cross-Defendants’ 6/8/22 request for judicial notice is denied.  (Supp-RJN, Exhs. A-AA.) 

     

    Background

     

              Plaintiff Bogota Corporation (“Bogota”) filed its complaint against Seiden on May 11, 2020, and its first amended complaint (“FAC”) on September 24, 2020.  On October 26, 2020, Seiden filed his initial cross-complaint against KGM3 and ROE Defendants, alleging causes of action for breach of contract, common counts, breach of the implied covenant of good faith and fair dealing, indemnification, apportionment of fault, and negligence.  On February 16, 2021, the Court denied Seiden’s special motion to strike on the grounds he did not meet his burden of showing Plaintiff’s causes of action arose out of protected activities.  (2/16/21 Ruling on Submitted Matter.)  On March 16, 2021, the Court overruled Seiden’s demurrer to the FAC.  On July 20, 2021, Seiden filed his answer to the FAC.  On September 10, 2021, Seiden’s counsel filed a Notice of Substitution of Attorney indicating that Seiden would be a self-represented party from that date forward.  On November 10, 2021, Seiden, acting in pro per, filed the operative FACC.  The Court notes Seiden thereafter attempted to file other versions of the FACC on November 12, 2021, and November 19, 2021; however, these filings were not accepted and/or stricken by the Clerk as improper.

     

              Motion to Strike

     

    C.C.P. §436 allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” and “[s]trike 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. (C.C.P. §436.). “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

     

    C.C.P. §§428.50(a) and (b) provide that, “[a] party shall file a cross-complaint against any of the parties who filed the complaint… against him… before or at the same time as the answer to the complaint…” and that, “[a]ny other cross-complaint may be filed at any time before the court has set a date for trial.”  (Emphasis added.)  C.C.P. §428.50(c) provides that if a cross-complaint is not field within the above timeline, “[a] party shall obtain leave of court to file any [such] cross-complaint… [,] which may be granted in the interest of justice at any time during the course of the action.”

     

    Cross-Defendants move to strike the FACC on the grounds Plaintiff’s initial cross-complaint was filed not in accordance with the law because it was filed after the Court set a date for trial.  (Motion, pgs. 3-4.)  Cross-Defendants are not entitled to an order striking the FACC in its entirety for untimely filings.  Notably, Plaintiff filed his initial cross-complaint before he filed his answer to the FAC in the instant action, and as such, the filing was timely pursuant to C.C.P. §428.50(a). 

     

    Based on the foregoing, Cross-Defendants’ motion to strike the FACC is denied.

     

  2. Demurrer

     

    Cros-Defendants demur to the 1st (breach of written agreement), 2nd (interference with prospective economic advantage), 3rd (fraud), 4th (breach of implied covenant of quiet enjoyment), and 5th (personal injury) causes of action in Seiden’s FACC. Cross-Defendants demur on the grounds that Seiden fails to allege sufficient facts to support the causes of action and/or the causes of action are uncertain. 

     

              Background

     

              The initial complaint involved a dispute between Bogota, the former owner and landlord of real property located at 23031 Ventura Boulevard, Woodland Hills, CA 91364 (“Property”), and Seiden, who does business under the names of Priced to Sell and/or Auto Alliance (“Alliance”), a tenant of the Property prior to Bogota’s purchase in 2015 and after Bogota’s sale of the Property to KGM3 in 2019.  The cross-complaint is based on a dispute between Seiden and KGM3 regarding Seiden’s continued tenancy at the Property since KGM3 purchased it.  Seiden’s tenancy is based on his entry into June 1, 2000 Modified Gross Office Lease [Commercial Lease] with the Property’s owner at the time, amended by a May 20, 2005 Amendment (“Amendment”) (collectively “Lease”).  (FACC ¶9, Exh. A.) 

     

              Seiden alleges that during escrow, Bogota and KGM3 entered into an agreement (“Arrangement”) with respect to Seiden’s allegations that Bogota had violated terms of the Lease pursuant to which Bogota received a reduced sum than it otherwise would have had it performed its obligations under the Lease, cured its breaches of the Lease, disclosed its breaches to prospective buyers, or adjudicated the breaches prior to listing the Property.  (FACC ¶21.)

     

              Seiden alleges KGM3: (1) withheld consideration owed him under the Lease in exchange for the rent he paid; (2) locked Seiden out of certain common areas of the Property; (3) failed to maintain parking spaces on the premises, surfaces and plumbing; (4) threatened Seiden’s parked cars; (5) claimed Seiden was not entitled to use outdoor water pursuant to the new lease conditions; and (6) refused to restore the parking configuration. (FACC ¶23.)

     

              Seiden alleges CMS, the company owned by Steve and Randi, was a second-floor tenant of the Property and “shares the same principals” with KGM3, and as such, all Cross-Defendants are individually and severally liable.  (FACC ¶24.) 

     

              Seiden alleges that shortly after the sale of the Property closed on October 29, 2019, Steve and CMS began poisoning him by replacing the brass sewer cleanout plug located in front of his unit, causing emission of noxious sewer gas at the entrance, warding off customers and causing Seiden physical harm.  (FACC ¶25.)  Seiden alleges after months of exposure he began noticing medical conditions consistent with toxic exposure.  (FACC ¶26.)  Seiden alleges in November 2020, Cross-Defendants increased Seiden’s exposure by denying him rear access to the Property and forcing him to access it via the front, where the gas flow was maximum and required him to open the front door letting noxious gases in.  (FACC ¶29.)  Seiden alleges the noxious gas flow ceased only after an upstairs unit was leased to a beauty waxing business [date not alleged].  (FACC ¶27.)  Seiden alleges the noxious gases lasted through August 2, 2021.  (FACC ¶30.)

     

    Breach of Written Agreement (1st COA)

     

    “The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

     

    In addition to the above allegations, Seiden’s breach of written agreement cause of action is based on the following allegations: (1) Seiden has performed all his obligations under the Lease, except those as to which performance has been waived, excused or made impossible; (2) in acting and failing to act in the manner alleged in the FACC, Cross-Defendants breached the Lease, damaging Seiden in an amount no less than $187,500.  (FACC ¶¶33-34.) 

     

    Cross-Defendants demur on the grounds that they are not parties to the Lease that the cause of action is based on, and as such, Seiden has failed to allege the breach of contract cause of action against them. (Demurrer, pg. 2.)  In opposition, Seiden argues KGM3 is bound by the Lease as a result of its purchase of the Property and that Steve and Randi are named because they are not shielded by their LLC.  (Opposition, pg. 8.)  However, these arguments exceed the scope of the pleadings—the FACC does not allege KGM3 is bound by the Lease.

     

    Seiden failed to allege sufficient facts to support the breach of contract cause of action against Cross-Defendants.  Seiden fails to allege facts suggesting Cross-Defendants are bound by the Lease as a result of KGM3’s purchase of the Property to which the Lease applied.  As such, Seiden failed to allege the existence of an agreement between himself and Cross-Defendants.  Notably, while Seiden argues that the Lease is enforceable against KGM3 as the current owner, he has not alleged how the Lease is enforceable against Steve and Randi and/or their company CMS, which is alleged to be another tenant of the Property. 

     

    Based on the foregoing, Cross-Defendants’ demurrer to the 1st cause of action is sustained with leave to amend.   

     

    Interference with Prospective Economic Advantage (2nd COA)

     

               “The elements of the tort of interference with prospective economic advantage are ‘(1) a relationship between the plaintiff and some third party with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) a wrongful act, apart from the interference itself, by the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.’” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290 (Citations Omitted).)

     

    “With respect to the third element, a plaintiff must show that the defendant engaged in an independently wrongful act. It is not necessary to prove that the defendant acted with the specific intent, or purpose, of disrupting the plaintiff’s prospective economic advantage. Instead, ‘it is sufficient for the plaintiff to plead that the defendant “[knew] that the interference is certain or substantially certain to occur as a result of his action.” ’ ‘[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’ ‘[A]n act must be wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive.’ ” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544–1545.)

     

              Seiden’s 2nd cause of action is based on the following allegations: (1) Cross-Defendants maintained their office on the second-floor of the Property and as such they were aware of the effects of their failure to maintain the common areas and the Property; (2) Cross-Defendants were aware Seiden operated an automobile sale and leasing business at the Property and his need to present potential buyers with clean vehicles on a moment’s notice, and as such, they knew that denying Seiden the ability to clean cars on the Property would reduce his business’s profitability; (3) Cross-Defendants also knew their release of foul odors at the Property reduced sales; (4) CMS and Steve knew the gases would impair Seiden’s ability to engage in business; (5) KGM3 was aware denying handicapped patrons parking access would reduce the number of visitors; (6) Seiden’s business was tied to parking spaces Nos. 3 and 4; however, when “Landlord(s)” denied him 12% of this area, it defeated his purpose in leasing the Property by interfering with his ability to display certain vehicles, appraise while showing, protect vehicles from door dings, and provide parking for shoppers and effectively rendered Seiden’s second parking space useless; (7) Cross-Defendants’ refusal to cure the situation intended to cause Seiden to lose the economic benefit he expected and previously received at the Property; (8) Cross-Defendants interfered with Seiden’s business operation resulting in damage in an amount no less than $375,000.  (FACC ¶¶36-39.)

     

              Seiden failed to allege sufficient facts to support the 2nd cause of action.  Seiden does not properly allege the existence of a relationship between himself and some third party with the probability of future economic benefit to Seiden.  Rather, the cause of action is based on the effect of the reduced parking space and foul odors on Seiden’s potential future customers.  In opposition, Seiden argues that his allegations that “purchasers of automobiles” were in an economic relationship with him were sufficient.  (Opposition, pg. 9.)  However, this argument fails to address the pleading deficiency—namely, that the cause of action is based on existing non-contractual relationships between Seiden and third parties that are interfered with by Cross-Defendants’ conduct.  Here, Seiden contends that the at-issue third parties are all potential customers, which is too broad and not sufficiently identified to support the cause of action. 

     

    Based on the foregoing, Cross-Defendant’s demurrer to the 2nd cause of action is sustained with leave to amend.

     

    Fraud (3rd COA)

     

    The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)  In California, fraud, including negligent misrepresentation, must be pled with specificity and the plaintiff must plead facts showing “how, when, where, to whom, and by what means the representations were tendered. [Citation]”. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)  “The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”  (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

     

    Seiden’s fraud cause of action is based on the following allegations: (1) Cross-Defendants, in making the promises contained in the Lease and other representations alleged above, had no intention of fulfilling the promises or representations, and so knew that the promises and representations were false at the time they were made; and (2) Seiden reasonably relied on Cross-Defendants’ representations resulting in damages in an amount no less than $262,000. (FACC ¶¶41-42.)

     

    Seiden failed to allege sufficient facts to support the cause of action. The cause of action is based on representations and/or promises allegedly made in the Lease; however, as conceded by Seiden, the Lease was initially executed in 2000 and subsequently amended in 2005, at which time Cross-Defendants had no relation to the Property subject to the Lease.  As such, Seiden has failed to allege any misrepresentation made by Cross-Defendants upon which Seiden reasonably relied.  Seiden’s fraud cause of action appears to be based on representations contained in the Lease that Cross-Defendants failed to uphold once the Lease was enforceable against them.  The cause of action is also not alleged with requisite specificity.  In opposition, Plaintiff argues that Steve and Randi are the principals of KGM and CMS and that it is “obvious” that all Cross-Defendants possessed the same information concerning the facts of the controversy.  (Opposition, pg. 11.)  However, this argument ignores the key issue raised on demurrer—that Seiden has not alleged any misrepresentations and/or omissions made by any Cross-Defendants to support the fraud cause of action. Seiden bears the burden of proving there is a reasonable possibility of amendment to cure deficiencies in the pleading.  (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In opposition, Seiden failed to meet his burden.

     

    Based on the foregoing, Cross-Defendants’ demurrer to the 3rd cause of action is sustained without leave to amend.

     

    Breach of Implied Covenant of Quiet Enjoyment (4th COA)

     

    “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. [Citations] 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. [Citations]” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 587.) 

     

    Seiden’s 4th cause of action is based on the following allegations: (1) Cross-Defendants owed Seiden an implied contractual duty to preserve his peaceful and quiet enjoyment of the Property; (2) Cross-Defendants denied Seiden these covenants and rendered the Property substantially unsuitable for the use for which it was leased; (3) Cross-Defendants accordingly breached the Implied Covenant of Quiet Enjoyment damaging Seiden in an amount no less than $183,000.  (FACC ¶¶45-47.)

     

    Cross-Defendants demur to this cause of action on the sole ground that based on the FACC, and the Lease attached to the pleading, they are not parties to the Lease and as such, Seiden cannot allege the cause of action arising out of the Lease against them.  (Demurrer, pg. 4.)  In opposition, Seiden argues the FACC failed to note this cause of action is asserted only against KGM3, “which must be taken to be the Landlord, as properly pleaded.” (Opposition, pg. 11.)  As such, Seiden does not intend to assert the cause of action against the other cross-defendants. 

     

    Seiden failed to allege sufficient facts to support the 4th cause of action against Cross-Defendants.  Seiden has not alleged that KGM3 is bound by the terms of the Lease entered into by its predecessor-in-interest by virtue of KGM3’s purchase of the Property.  Seiden does not oppose the demurrer to the cause of action asserted against Randi, Steve, and CMS.

     

    Based on the foregoing, Cross-Defendant’s demurrer to the 4th cause of action is sustained with leave to amend as to KGM3 and sustained without leave to amend as to Randi, Steve, and CMS. 

     

              Personal Injury (5th COA)

     

    Seiden’s 5th cause of action is divided into four subparts for: (1) professional liability for personal injury; (2) negligence; (3) premises liability; and (4) intentional tort.  These causes of action are all based on allegations relating to Cross-Defendants’ releasing of toxic fumes at the Property to affect Seiden and Cross-Defendants’ failure to maintain parking areas and plumbing for Seiden’s benefit.  (FACC ¶¶48-73.)

     

  1. Uncertainty

     

    Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated.  (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2021) ¶¶7:85-7:86.) 

     

    Seiden’s 5th cause of action is uncertain as it improperly groups multiple separate theories of liability into a single cause of action without alleging against which party each theory of liability is alleged.  Each theory of liability should be alleged as a separate cause of action. 

     

    Based on the foregoing, Cross-Defendants’ demurrer to the 5th cause of action is sustained with leave to amend.

     

     

    Dated:  July ____, 2022

                                                                                                                           

    Hon. Monica Bachner

    Judge of the Superior Court