Judge: Monica Bachner, Case: 20STCV17928, Date: 2023-04-28 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: April 28, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Cross-Defendant CMS Construction, Inc.’s demurrer to pro per Cross-Complainant Lewis Seiden’s second amended cross complaint is sustained as to the 1st, 2nd, and 7th causes of action without leave to amend, and overruled as to the 4th, 5th, and 6th causes of action.

Cross-Defendant CMS Construction, Inc.’s motion to strike is granted.

Cross-Defendants KGM3 LLC’s, Craig Steven Den Bensten’s, and Randi Den Bensten’s demurrer to pro per Cross-Complainant Lewis Seiden’s second amended cross complaint is sustained as to the 1st (as to the Den Benstens), 2nd, 3rd (as to the Den Benstens), and 7th causes of action without leave to amend and overruled as to the 3rd (as to KGM3), 4th, 5th, and 6th causes of action.

Cross Defendants KGM3 LLC’s, Craig Steven Den Bensten’s, and Randi Den Bensten’s motion to strike is granted.

Cross-Defendant CMS Construction, Inc. (“CMS”) (“Cross-Defendant”) demurs to pro per Cross-Complainant Lewis Seiden’s (“Seiden”) (“Cross-Complainant”) 1st, 2nd, 4th, 5th, 6th, and 7th causes of action in his second amended cross-complaint (“SACC”).  (Notice of Demurrer CMS, pgs. 1-2; C.C.P. §430.10.)  Cross-Defendant CMS also moves to strike portions of the SACC on the grounds that the claims and allegations at issue were not filed in conformity with the law.  (Notice of MTS CMS, pgs. 2-3; C.C.P. §§435, 436(b), 437.)

Cross-Defendants KGM3 LLC (“KGM3”), Craig Steven Den Bensten (“Craig”), and Randi Den Bensten (“Randi”) (collectively, “Den Benstens”) demur to the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th causes of action in Cross-Complainant’s SACC.  (Notice of Demurrer KGM3 Den Benstens, pgs. i-ii; C.C.P. §430.10.)  Cross-Defendants KGM3 and Den Benstens also move to strike portions of the SACC on the grounds the claims and allegations at issue were not filed in conformity with the law.  (Notice of MTS KGM3 Den Benstens, pg. 2; C.C.P. §§435, 436(b), 437.)

Procedural Background

On October 26, 2020, Cross-Complainant filed his original cross-complaint (“CC”) against Cross-Defendant KGM3 alleging five causes of action.  On November 10, 2021, Cross-Complainant filed his first amended cross-complaint (“FACC”) alleging five causes of action against Cross-Defendants KGM3, Den Benstens, and CMS: (1) breach of written agreement [against all Cross-Defendants]; (2) interference with prospective economic advantage [against all Cross-Defendants]; (3) fraud [against all Cross-Defendants]; (4) breach of quiet enjoyment [against Cross-Defendant KGM3]; and (5) personal injury [against all Cross-Defendants]. 

On July 27, 2022, this Court sustained Cross-Defendants’ demurrer to the FACC as to the 1st, 2nd, 4th (as to Cross-Defendant KGM3), and 5th causes of action with 20 days leave to amend and sustained the 3rd and 4th (as to Cross-Defendants Den Benstens and CMS) causes of action without leave to amend.  (7/27/22 Ruling.)

On August 17, 2022, Cross-Complainant filed the operative SACC against Cross-Defendants.  The SACC asserts ten causes of action: (1) breach of written agreement [against all Cross-Defendants]; (2) interference with prospective economic advantage [against all Cross-Defendants]; (3) breach of quiet enjoyment [against Cross-Defendant KGM3]; (4) professional liability for personal injury [against all Cross-Defendants]; (5) personal injury due to negligence [against all Cross-Defendants]; (6) premises liability for personal injury [against all Cross-Defendants]; (7) intentional tort [against all Cross-Defendants]; (8) apportionment [against all Cross-Defendants]; (9) imdemfication [sic] [against Cross-Defendant KGM3]; and (10) declaratory relief [against all Cross-Defendants].

On September 19, 2022, Cross-Defendant CMS filed its demurrer and motion to strike.  On September 20, 2022, Cross-Defendants KGM3 and Den Benstens filed their demurrer and motion to strike.  On April 17, 2023, Cross-Complainant filed his oppositions to Cross-Defendants KGM3’s and Den Benstens’ demurrer and motion to strike.  On April 18, 2023, Cross-Complainant filed his late oppositions to Cross-Defendant CMS’ demurrer and motion to strike. On April 21, 2023, Cross-Defendants KGM3, Den Benstens, and CMS filed their replies.

Cross-Complainant’s oppositions to Cross-Defendant CMS’ demurrer and motion to strike were not timely filed per C.C.P. §1005(b).  However, the Court, in its discretion, will consider Cross-Complainant’s oppositions to Cross-Defendant CMS’ demurrer and motion to strike.  (C.R.C. Rule 3.1300(d).)

A.   Cross-Defendant CMS’ Demurrer

Meet and Confer

C.C.P. §430.41 states, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”  (C.C.P. §430.41(a).)

“The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”  (C.C.P. §430.41(a)(3).)

“A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”  (C.C.P. §430.41(a)(4).)

Cross-Defendant CMS’ counsel declares that prior to filing the instant demurrer, he “attempted to meet and confer with [Plaintiff],” but Plaintiff “did not agree to meet and confer in good faith.”  (Decl. of Marak ¶4.)  The Court finds Cross-Defendant CMS’ counsel’s declaration to be sufficient under C.C.P. §430.41(a)(3)(B).

Summary of Demurrer

In support of its demurrer to the 1st, 2nd, 4th, 5th, 6th, and 7th causes of action, Cross-Defendant CMS argues the SACC fails to state facts sufficient to constitute causes of action.  (Demurrer, pgs. 3-4; C.C.P §430.10(e).)  Cross-Defendant CMS also argues the 5th, 6th, and 7th causes of action are also uncertain.  (Demurrer, pgs. 3-4; C.C.P §430.10(f).)

Legal Standard

“[A] demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.”  (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562; see also Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”].)  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, 318.)

Failure to State a Claim

Breach of Written Agreement (1st COA)

A cause of action for breach of contract requires the following elements: (1) the existence of contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage to plaintiff.  (Reichert v. General Insurance Co. (1968) 68 Cal.2d 822, 830.)

Cross-Complainant alleges on information and belief that Cross-Defendants, each of them, acted as the agent, employee, or representative of each other in committing the acts alleged in his SACC.  (SACC ¶8.)  Cross-Complainant alleges he is a tenant of a certain commercial premises commonly referred to as 23031 Ventura Boulevard, Unit 102, Woodland Hills, CA (the “Premises”).  (SACC ¶9.)  Plaintiff alleges he is a tenant of the Premises pursuant to that certain Modified Gross Office Lease, signed June 1, 2000, and as amended by that certain Amendment to Commercial Lease, signed May 20, 2005 (“Lease”).  (SACC ¶9, Exh. A.) 

Cross-Complainant alleges on or about October 29, 2019, the Premises was sold to Cross-Defendant KGM3, which, duly informed of Cross-Complainant’s Lease, as well as the liabilities and duties associated with the same, entered this Lease that runs with the land by consummating the purchase of the Premises, and in doing so, Cross-Defendant KGM3 became the “Lessor (Landlord)” as identified in the Lease with Cross-Complainant and thus bound by its terms.  (SACC ¶23.)  Cross-Complainant alleges Paragraph 2 of the Lease prohibited Lessor [Plaintiff Bogota and Cross-Defendant KGM3] from renting, leasing, or causing “any part” of the property “to be used” by “any person or entity which would disrupt, hinder, interfere, or otherwise negative affect Lessee’s business operation or intended use as described [t]herein,” and whereas the collection of rent was conditioned on these terms [among others], and whereas each of the principals identified in this complaint where expressly informed and thereupon agreed to be bound by these obligations, both as individuals and as principals of other entities on the Premises (e.g. CMS), each of them, individually and through their respective entities, breached this Lease paragraph with their misconduct set forth in this complaint.  (SACC ¶26.) 

Cross-Complainant alleges that following misconduct and breach of the Lease Paragraph 2, Cross-Defendant KGM3 and Plaintiff Bogota failed to evict themselves and their offending entities as required by the Lease, and instead, Cross-Defendant KGM3 and Plaintiff Bogota acted with unity of interests common to small entities where insufficient separation exists between the entity and its principals, allowing themselves and their offending entities to remain on the Premises to the detriment of Cross-Complainant.  (SACC ¶27.)  Cross-Complainant alleges these acts and failures to act by the named individuals and their named entities, in conjunction with their other reckless, harmful, and intentionally dishonest acts set forth in this complaint, give rise to their personal liability.  (SACC ¶27.) 

Cross-Defendant CMS argues it is not a party to the Lease and therefore cannot be sued for breach of the Lease.  (Kendis v. Cohn (1928) 90 Cal.App.41, 61; see CACI 303.)  Cross-Defendant CMS is not a party to the Lease.  (See SACC, Exh. A.) 

Cross-complainant argues that Cross-Defendant CMS is nonetheless liable to him for breach of lease because he pled in paragraph 26 that in doing the thing they are alleged to have done in the SACC, they breached the lease.  But such allegations do not plead that Cross-Defendant CMS is a party to the lease. 

Cross-Complainant alleges Cross-Defendant CMS, a tenant on the second floor of the Premises, and Cross-Defendant KGM3, share the same principals, the same Premises, and here: a combined consciousness.  (SACC ¶28.)  Cross-Complainant alleges in one instance, when those individuals sought preferred parking on the Premises, their combined consciousness directed Cross-Defendant CMS to violate Cross-Defendant KGM3’s Lease with Cross-Complainant by modifying the parking surfaces and areas.  (SACC ¶28.)  These allegations do not establish Cross-Defendant CMS as a party to the lease.  But even if the Court were to interpret the allegations as allegations of alter ego, they would be insufficient.  The allegation that a corporation is the alter ego of the individual stockholders is insufficient to justify the court in disregarding the corporate entity in the absence of allegations of facts from which it appears that justice cannot otherwise be accomplished.  (Norins Realty Co. v. Consolidated Abstract & Title Guaranty Co. (1947) 80 Cal.App.2d 879, 883.) The SACC made no such factual allegations.  

Accordingly, Cross-Defendant CMS’ demurrer to the 1st cause of action of the SACC is sustained.  Cross-complainant has made no showing in his opposition as to how he could plead around this deficiency, so the Court sustains the demurrer without leave to amend.  (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 584.)

Interference with Prospective Economic Advantage (2nd COA)

The elements for intentional interference with prospective economic advantage are: (1) the existence of a prospective economic relationship with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship and intent to disrupt it; (3) actual disruption of the relationship; (4) caused by the defendant’s wrongful and unjustified conduct; and (5) plaintiff suffered damages as a result.  (Youst v. Longo (1987) 43 Cal.3d 64, 71.)  Further, the interference must be wrongful by some measure beyond the fact of the interference itself.   (Della Penna v. Toyota Motor Sales (1995) 11 Cal.4th 376, 393; see also Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 [plaintiff may plead a specific intent to interfere or, alternatively, that defendant knew the interference was certain or substantially certain to occur as a result of its action]; CACI 2202.)

Cross-Complainant alleges Cross-defendants maintained their own office on the second floor of the same building as the Premises and as such, Cross-Defendants were personally aware of the obvious effects of their failure to maintain the common areas and building.  (SACC ¶40.)  Cross-Complainant alleges Cross-Defendants were aware that Cross-Complainant operated an automobile sales and leasing business from which he derived economic benefit, and as such he would meet at the Premises with customers who had paid him money in connection with the purchase of vehicles, prior to first seeing those vehicles, and in other words, Cross-Complainant was engaged in the business of auto brokerage, and those vehicles were pre-sold.  (SACC ¶41.)  Cross-Complainant alleges Plaintiff [Bogota Corporation] and Cross-Defendants knew of this relationship having previously agreed to Cross-Complainant’s use of the Premises for this purpose in Lease Paragraph 2.  (SACC ¶41.)  Cross-Complainant alleges in this same Lease Paragraph, Cross-Defendant KGM3 and Plaintiff Bogota’s principles agreed to forbid “behavior or actions which could negatively impact the impression or appearance of said property” and they expressly agreed this would “disrupt, hinder, interfere, or otherwise negatively affect” Lessee’s business operation, and require the eviction of the offending individuals and/or entities [i.e., themselves].  (SACC ¶42.)  Cross-Complainant alleges notwithstanding, they engaged in the wrongful conduct anyway on an ongoing basis without evicting themselves as required, and this proximately resulted in financial harm to Cross-Complainant in the form of a predictable reduction in sales, efficiency, personal compensation, growth, business valuation, and the ripple effect of reduced referrals and repeat sales.  (SACC ¶42.)  Cross-Complainant alleges Cross-Defendant KGM3 and Plaintiff Bogota, knowing of Cross-Complainant’s need to present buyers with clean vehicles on a moment’s notice, knew that denying Cross-Complainant the ability to clean cars on the Premises would reduce the profitability of his business, and they intentionally did so.  (SACC ¶43.) 

Cross-Complainant alleges that informed by the Lease of the importance to Cross-Complainant’s business of a first impression, their release of foul odors in front of and into his Premises undermined his efforts and reduced sales.  (SACC ¶43.)  Cross-Complainant alleges Cross-Defendants CMS and Steve [a licensed general contractor] also knew that the gas would physically impair Cross-Complainant’s ability to engage in commerce, and it did.  (SACC ¶43.)

Cross-Complainant alleges Cross-Defendant KGM3 was aware that denying handicapped patrons parking access would reduce the number of visitors to Cross-Complainant’s business establishment, resulting in fewer sales, so it allowed this to occur.  (SACC ¶43.)  Cross-Complainant alleges his small business was tied to parking spaces #3 and #4, from which he derived sales and income.  (SACC ¶44.)  Cross-Complainant alleges when Landlord(s) denied him 12% of this parking area/surface he Leased, it defeated Cross-Complainant’s purpose in leasing the Premises by interfering with his ability to: (a) display two mid-to-full sized vehicles, side-by-side; (b) appraise a trade-in while showing a full-sized vehicle; (c) protect vehicles from door dings; and (d) provide parking for shoppers interested in full-sized vehicles, trucks and large SUVs.  (SACC ¶44.)  Cross-Complainant alleges under all such circumstances, the reduction in parking area/surface suffered by Cross-Complainant often rendered his second parking space useless; effectively limiting him to one space instead of two and cutting his display area in half.  (SACC ¶44.)  

Cross-Complainant alleges Cross-Defendants regularly observed this out their office window and Cross-Defendant’s [sic] trade-knowledge of City Permits, parking lots and the Lease leave no doubt that their five (5) constructive refusals to cure this situation were intended to result in Cross-Complainant’s loss of the economic benefit that he expected and previously received at the Premises.  (SACC ¶44.)  Cross-Complainant alleges by their conduct, Cross-Defendants, and each of them, have interfered with Cross-Complainant’s ongoing business operations. (SACC ¶45.)  Cross-Complainant alleges by reason of Cross-Defendants’ interference, Cross-Complainant has been damaged in an amount according to proof at trial, but in no event less than $375,000.00.  (SACC ¶45.)

Cross-Defendant CMS argues the SACC fails to allege: (1) the third party(ies) with whom Cross-Complainant had a relationship with the probability of future economic benefit; (2) Cross-Defendant CMS’s knowledge of such relationship; or (3) facts showing Cross-Complainant’s relationship with the third-party was disrupted.  (Demurrer CMS, pg. 6.)  Cross-Complainant’s allegation that he would “[m]eet at the Premises with potential customers” is insufficient to allege a relationship with the probability of future economic benefit.  (SACC ¶41; see Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 524 [“the interference tort applies to interference with existing noncontractual relations which hold the promise of future economic advantage. In other words, it protects the expectation that the relationship eventually will yield the desired benefit, not necessarily the more speculative expectation that a potentially beneficial relationship will eventually arise.”].)  Cross-Complainant’s allegations of interference with third parties/a third party is speculative and therefore insufficiently alleged. 

Accordingly, Cross-Defendant CMS’ demurrer to the 2nd cause of action of the SACC is sustained without leave to amend as to Cross-Defendant CMS.

Professional Negligence (4th COA)

“The elements of a cause of action in tort for professional negligence are (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.”  (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) “The first element, duty, ‘may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.’”  (Doe v. United States Youth Soccer Association Inc. (2017) 8 Cal.App.5th 1118, 1128.)

Where there is no legal duty, the issue of professional negligence cannot be pled because with the absence of a breach of duty, an essential element of the cause of action for professional negligence is missing.  (Major Clients Agency v. Diemer (1998) 67 Cal.App.4th 1116, 1132, citing Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267.)

          Cross-Complainant alleges Cross-Defendants are regularly involved with the installation of plumbing, including the safe ventilation of sewer gas.  (SACC ¶51.)  Cross-Complainant alleges as licensed general contractors, Cross-Defendants were educated on the dangers of sewer gases and demonstrated written proficiency for their proper ventilation for public safety.  (SACC ¶52.)  Cross-Complainant alleges the ventilation of sewer gases at ground level, less than ten feet from Cross-Complainant’s

business entrance was contrary to code, unsafe, and allowed Cross-Complainant to be injured.  (SACC ¶54.)  Cross-Complainant alleges at all relevant times, and although Cross-Defendants possessed the knowledge of risk posed by long-term exposure to sewer gas, they maliciously and willfully failed to guard to warn [sic] Cross-Complainant of the dangerous condition.  (SACC ¶55.)  Cross-Complainant alleges the acts of Cross-Defendants were the legal proximate cause of harm to Cross-Complainant.  (SACC ¶56.)

          Cross-Defendant CMS argues the SACC fails to allege that anyone, except for Steve, is a licensed general contractor, and therefore there are no allegations that would give rise to a professional duty between Cross-Defendant CMS and Cross-Complainant.  (Demurrer CMS, pg. 6; Major Clients Agency, 67 Cal.App.4th at pg.  1132.)   Cross-Complainant alleges Cross-Defendant KGM3 became Cross-Complainant’s Landlord and sufficiently alleges Cross-Defendants are alter egos on information and belief that Cross-Defendants, each of them, acted as the agent, employee, or representative of each other in committing the acts alleged in his SACC.  (SACC ¶¶8, 23, 28.)  Cross-Complainant alleges Cross-Defendant KGM3 contracted to hire Cross-Defendant CMS to provide responsible maintenance of the Premises.  (SACC ¶¶28, 60.)  Further, Cross-Complainant alleges the Den Benstens are principals of Cross-Defendant CMS.  (SACC ¶28.) 

Cross-Complainant sufficiently alleges Cross-Defendants owed a legal duty or a duty arising from a special relationship with Cross-Complainant as his landlord on a commercial lease.  (SACC ¶¶50-57, 58-62.)  Accordingly, Cross-Defendant CMS’ demurrer to the 4th cause of action of the SACC is overruled.

Negligence & Premises Liability (5th & 6th COAs)

A cause of action for premises liability requires the following elements: (1) that defendant owned, leased, occupied, or controlled the property; (2) defendant was negligent in the use, maintenance, or management of premises; (3) the plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is a form of negligence]; see also Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1116-1117 [complaint for premises liability based upon negligence is not subject to strict pleading requirements and may be generally pled].)

“A landowner owes a duty to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury.  [Citations.] The failure to fulfill the duty is negligence.  [Citations.] The existence of a duty of care is an issue of law for the court. [Citations.].”  (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478.)

Cross-Complainant alleges the Lease required Cross-Defendant KGM3 to maintain the Premises parking surfaces, parking areas, and plumbing.  (SACC ¶59.)   Cross-Complainant alleges Cross-Defendant KGM3 contracted for Cross-Defendant CMS to provide responsible maintenance of the Premises, commencing with California Code of Regulations, Title 24, and other federal, state and local laws, and Cross-Complainant is entitled to a presumption of negligence under Evidence Code §669.  (SACC ¶60.)  Cross-Complainant alleges said failures were the proximate cause of damages to Cross-Complainant.  (SACC ¶61.)

Cross-Complainant alleges Cross-Defendants negligently owned, maintained, managed, and operated the Premises.  (SACC ¶64.)  Cross-Complainant alleges the conditions described in the SACC constituted violations of the California Building Code and other federal, state, and local laws.  (SACC ¶65.)  Cross-Complainant alleges, “[c]ontrary to Civil Code §846, cross-defendants willfully and maliciously failed to guard or warn against a dangerous condition, use, structure, or activity.”  (SACC ¶66.)  Cross-Complainant alleges said failures were the proximate cause of damages to Cross-Complainant.  (SACC ¶67.)

Cross-Complainant sufficiently alleges negligence and premises liability against Cross-Defendants, including Cross-Defendant CMS, by way of alter ego allegations.  As such, Cross-Complainant sufficiently alleged Cross-Defendant CMS owned the Premises as an alter ego of Cross-Defendant KGM3 and therefore the legal duty of a landlord is sufficiently alleged.  (SACC ¶¶8, 64; Brooks, 215 Cal.App.3d at pg. 1619.)

Accordingly, Cross-Defendant CMS’ demurrer to the 5th and 6th causes of action of the SACC is overruled.

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.)

Intentional Tort (7th COA)

          Cross-Complainant alleges Cross-Defendant’s [sic] actions, in knowingly creating the above-described dangerous condition at 23031 Ventura Blvd., Unit 102, Woodland Hills, CA, are actions committed in knowing and reckless disregard of the rights of the public and Cross-Complainant.  (SACC ¶70.)  Cross-Complainant alleges Cross-Defendants knew or reasonably should have known the likely consequences of said actions.  (SACC ¶71.)  Cross-Complainant alleges in spite of said knowledge, cross-defendants failed and refused to abate the defects or warn the public or Cross-Complainant.  (SACC ¶72.)  Cross-Complainant alleges said failures were the proximate cause of Cross-Complainant’s injuries.  (SACC ¶73.)  Cross-Complainant alleges in acting and failing to act in the manner alleged above,

and by reason of Cross-Defendant’s [sic] conduct, Cross-Complainant suffered temporary partial disability, future inconvenience and medical need, actual and consequential financial harm; and past, present, or future medical and rehabilitative diagnosis, treatment, and prescription in an amount according to proof at trial, but in no event less than $350,000.00.  (SACC ¶74.)

          Cross-Complainant’s cause of action fails to specify the applicable intentional tort he alleges against Cross-Defendants.  Cross-Complainant’s 7th cause of action also fails to provide notice as to which individual Cross-Defendant’s conduct is alleged.  (See SACC ¶¶70, 74.)

Accordingly, Cross-Defendant CMS’ demurrer to the 7th cause of action of the SACC is sustained without leave to amend.

B.    Cross-Defendant CMS’ Motion to Strike

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.) 

Summary of Motion to Strike

          Cross-Defendant CMS argues the following portions of the SACC should be stricken because they were not filed in conformity with the law.  (Notice of MTS CMS, pg. 2; C.C.P. §436(b).)  Specifically, Cross-Complainant did not have leave to amend his FACC to add the 8th, 9th, 10th causes of action.  (Notice of MTS CMS, pg. 2; People ex rel. Department of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785.)  Cross-Defendant CMS also argues Cross-Complainant has not alleged facts supporting an award of punitive damages and as such, the following portions of the SACC should be stricken: (1) Prayer ¶1 at “but in no event less than $186,500.00”; (2) Prayer ¶2 at “but in no event less than $375,000.00”; (3) Prayer ¶3 at “but in no event less than $183,000.00”; (4) Prayer ¶4 at “but in no event less than $350,000.00”; (5) Prayer ¶4 at “as well as punitive damages pursuant to California Civil Code §3294”; (6) Prayer ¶5 in its entirety; (7) Prayer ¶6 in its entirety; and (8) Prayer ¶7 in its entirety.  (Notice of MTS CMS, pg. 2.)

          New Causes of Action Filed Without Leave of Court

“A court is not required to tolerate purported amended complaint that fails to amend previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative or orderly judicial administration.” (Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331, quoting Neal v. Bank of America National Trust & Savings Association (1949) 93 Cal.App.2d 678, 682-683.) A motion to strike is properly granted where a plaintiff is only granted leave to amend the complaint with respect to causes of action sustained by the court with leave to amend and plaintiff asserted new causes of action without leave of court.  (Clausen, (1967) 248 Cal.App.2d at pg. 785.)

Cross-Complainant’s 8th, 9th, and 10th causes of action are entirely new causes of action added to the SACC after Co-Defendants successfully demurred to the FACC without stipulation or leave from this Court, thereby disregarding the procedural requirements to amend a cross-complaint.

Accordingly, the 8th, 9th, and 10th causes of action in the SACC are stricken.

Punitive 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.)

Civil Code §3295(e) provides, “[n]o claim for exemplary damages shall state an amount or amounts.” (Civ. Code §3295(e).)

          Cross-Defendant CMS argues the SACC contains no factual allegations that Defendant CMS’ conduct amounted to fraud, oppression, or malice, and the prayer for punitive damages simply requests punitive damages pursuant to C.C.P. §3294.  (MTS CMS, pg. 6.)  Cross-Defendant CMS also argues Cross-Complainant fails to allege specific facts that any of Cross-Defendant CMS’ officers, directors, or managing agents had advanced knowledge or ratified any purported acts of oppression, fraud or malice, that Cross-Defendant CMS’ agents or employees acted within the course and scope of their employment with Cross-Defendant CMS’ authorization or ratification of the alleged wrongdoing.  (Kiseskey v. Carpenters’ Trust (1983) 144 Cal.App.3d 222, 235.)  Cross-Defendant CMS also moves to strike Cross-Complainant’s request for specified amounts in punitive damages as unsupported by facts alleged in the SACC.  (MTS CMS, pg. 7; Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614.) 

The Court finds that the SACC lacks factual allegations sufficient to support a claim for punitive damages.  Accordingly, the Court grants Cross-Defendant CMS’ request that Cross-Complainant’s request for punitive damages be stricken.

Conclusion

Cross-Defendant CMS’ motion to strike is granted.

C.    Cross-Defendants KGM3’s and Den Benstens’ Demurrer

Evidentiary Objections

Cross-Complainant’s 4/17/23 evidentiary objections to the Declaration of Kanter are overruled as to Nos. 1, 2, 3, and 4.

Meet and Confer

Cross-Defendants KGM3’s and Den Benstens’ counsel declares that on August 22, 2022, he sent an email to Cross-Complainant setting forth grounds for a demurrer and motion to strike and requested Cross-Complainant indicate if he was available to meet and confer on August 24 or 25 or propose alternative dates and times to meet.  (Decl. of Kanter ¶2.)  Cross-Defendants KGM3’s and Den Benstens’ counsel declares Cross-Complainant responded to the email on August 23, 2022, but did not advise on his availability.  (Decl. of Kanter ¶3, Exh. A.)  Cross-Defendants KGM3’s and Den Benstens’ counsel declares Cross-Complainant failed to meet and confer with him in good faith.  (Decl. of Kanter ¶4.)

The Court finds Cross-Defendants KGM3’s and Den Benstens’ counsel’s declaration to be sufficient under C.C.P. §430.41(a)(3)(B).

Summary of Demurrer

In support of its demurrer to the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th causes of action, Cross-Defendants KGM3 and Den Benstens argue the SACC fails to state facts sufficient to constitute causes of action.  (Demurrer KGM3, pgs. 3-4; C.C.P §430.10(e).)  Cross-Defendants KGM3 and Den Benstens also argue the 5th, 6th, and 7th causes of action are also uncertain.  (Demurrer KGM3, pgs. 3-4; C.C.P §430.10(f).)

Failure to State a Claim

Breach of Written Agreement (1st COA)

Cross-Defendants KGM3 and Den Benstens argue the Den Benstens are not parties to the Lease and therefore cannot be sued for breach of the Lease.  (Kendis, 90 Cal.App. at pg. 61; see CACI 303.) 

For the reasons the Court sustained the demurrer to the 1st cause of action as to Cross-Defendant CMS, it sustains it here, too, as to Cross-Defendants Den Benstens without leave to amend.

Interference with Prospective Economic Advantage (2nd COA)

Cross-Defendants KGM3 and Den Benstens argue the SACC fails to allege: (1) the third party(ies) with whom Cross-Complainant had a relationship with the probability of future economic benefit; (2) Cross-Defendants’ knowledge of such relationship; or (3) facts showing Cross-Complainant’s relationship with the third-party was disrupted.  (Demurrer KGM3, pg. 3.)  As stated above, Cross-Complainant fails to sufficiently allege a cause of action for interference with prospective economic advantage against Cross-Complainants, including Cross-Defendants KGM3 and Den Benstens.

Accordingly, Cross-Defendants KGM3’s and Den Benstens’ demurrer to the 2nd cause of action of the SACC is sustained without leave to amend as to Cross-Defendants KGM3 and Den Benstens.

Implied Covenant of Quiet Enjoyment (3rd COA)

The elements of a claim for breach of the covenant of quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which “substantially interfere[s] with a tenant[’]s right to use and enjoy the premises for the purposes contemplated by the tenancy”; and (4) an applicable remedy.  (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)

Cross-Complainant alleges Cross-Defendants owed Cross-Complainant an implied contractual duty to preserve his peaceful and quiet enjoyment of the Premises and common areas, free from nuisances, unreasonable restrictions, or interferences over which they have control.  (SACC ¶47.)  Cross-Complainant alleges by their conduct, Cross-Defendants, and each of them, denied Cross-Complainant these covenants and rendered the property substantially unsuitable for the use for which it was leased.  (SACC ¶48.)  Cross-Complainant alleges in acting and failing to act in the manner alleged above, Cross-Defendants breached the Implied Covenant of Quiet Enjoyment and by reason of these breaches, Cross-Complainant has been damaged in an amount according to proof at trial, but in no event less than $183,000.00.  (SACC ¶49.) 

Cross-Defendants KGM3 and Den Benstens argue Cross-Complainant fails to allege that any of the Cross-Defendants, except for Cross-Defendant KGM3, is a party to the Lease.  (Demurrer KGM3, pg. 4.)  The Court agrees.

Accordingly, Cross-Defendants KGM3’s demurrer is overruled while Cross-Defendants Den Benstens’ demurrer to the 3rd cause of action of the SACC is sustained without leave to amend.

Professional Negligence (4th COA)

          Cross-Defendants KGM3 and Den Benstens argue Cross-Complainant fails to allege that anyone, except for Steve, is a licensed general contractor, and there are no allegations that would give rise to a professional duty between any Cross-Defendants and Cross-Complainant.  (Demurrer KGM3, pg. 4; Major Clients Agency, 67 Cal.App.4th at pg.  1132.)  Cross-Complainant alleges Cross-Defendant KGM3 became Cross-Complainant’s Landlord and sufficiently alleges Cross-Defendants are alter egos on information and belief that Cross-Defendants, each of them, acted as the agent, employee, or representative of each other in committing the acts alleged in his SACC.  (SACC ¶¶8, 23, 28.)  Cross-Complainant alleges Cross-Defendant KGM3 contracted to hire Cross-Defendant CMS to provide responsible maintenance of the Premises.  (SACC ¶¶28, 60.)  Further, Cross-Complainant alleges the Den Benstens are principals of Cross-Defendant CMS.  (SACC ¶28.)  Cross-Complainant sufficiently alleges Cross-Defendants owed a legal duty or a duty arising from a special relationship with Cross-Complainant as his landlord on a commercial lease.  (SACC ¶¶50-57, 58-62.)

Accordingly, Cross-Defendants KGM3’s and Den Benstens’ demurrer to the 4th cause of action of the SACC is overruled.

Negligence & Premises Liability (5th & 6th COAs)

Cross-Complainant sufficiently alleges negligence and premises liability against Cross-Defendants, including Cross-Defendants Den Benstens, by way of alter ego allegations.  As such, Cross-Complainant sufficiently alleged Cross-Defendant Den Bestens owned the Premises as an alter ego of Cross-Defendant KGM3 and therefore the legal duty of a landlord is sufficiently alleged.  (SACC ¶¶8, 64; Brooks, 215 Cal.App.3d at pg. 1619.)

Accordingly, Cross-Defendants KGM3’s and Den Benstens’ demurrer to the 5th and 6th causes of action of the SACC is overruled.

Uncertainty

Intentional Tort (7th COA)

          As stated above, Cross-Complainant’s cause of action fails to specify the applicable intentional tort he alleges against Cross-Defendants.  Cross-Complainant’s 7th cause of action also fails to provide notice as to which individual Cross-Defendant’s conduct is alleged.  (See SACC ¶¶70, 74.)

Accordingly, Cross-Defendants KGM3’s and Den Benstens’ demurrer to the 7th cause of action of the SACC is sustained without leave to amend.

D.   Cross-Defendants KGM3’s and Den Benstens’ Motion to Strike

          Cross-Defendants KGM3’s and Den Benstens’ motion to strike is substantively the same as Cross-Defendant CMS’ motion, except Cross-Defendants KGM3’s and Den Benstens do not seek to strike the amounts of punitive damages alleged in Cross-Complainant’s prayer.

For the same reasons as stated above in Cross-Defendant CMS’ motion to strike, Cross-Defendants KGM3’s and Den Benstens’ motion to strike is granted.

Dated:  April ____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court