Judge: Monica Bachner, Case: 21STCV08461, Date: 2023-01-30 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: 21STCV08461    Hearing Date: January 30, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Nidal Barakat’s, Barakat-Allah Management’s, and Nuha Barakat’s demurrer to second amended complaint of Plaintiff Rodolpho Martinez is overruled.

          Defendants Nidal Barakat (“Nidal”), Barakat-Allah Management (“Barakat-Allah”), and Nuha Barakat (“Nuha”) (collectively, “Defendants”) demur to the 7th (fraud- misrepresentation) cause of action in the second amended complaint (“SAC”) of Plaintiff Rodolpho Martinez (“Martinez”) (“Plaintiff”).  Defendants demur on the grounds that the seventh cause of action fails to allege sufficient facts to constitute causes of action.  (Notice of Demurrer, pg. 2; C.C.P. §430.10(e).)

On March 3, 2021, Plaintiff filed his initial complaint in the instant action.  On January 26, 2022, Plaintiff filed his first amended complaint (“FAC”).  On August 4, 2022, Plaintiff filed his operative second amended complaint (“SAC”) against Defendant alleging twelve causes of action: (1) breach of contract, (2) breach of covenant of quiet enjoyment, (3) breach of warranty of habitability, (4) negligence, (5) private nuisance, (6) violation of Civil Code §1950.5, (7) fraud (misrepresentation), (8) unfair business practices, (9) intentional infliction of emotional distress, (10) retaliation, (11) constructive eviction, and (10) premises liability.  (See SAC.)  Plaintiff alleges he entered into a lease with Defendants in or around August 1, 2015, pursuant to which Plaintiff paid monthly rent for the property located at 11722 Saticoy Street #7, North Hollywood, CA 91605 (“Subject Property”) in the amount of $1,175.  (SAC ¶¶6, 18.) 

Defendants’ previous demurrer to Plaintiff’s FAC was granted as to the 9th cause of action for fraud, with leave to amend.  (7/15/2022 Minute Order.)  On September 6, 2022, Defendants filed the instant demurrer. Plaintiff filed his opposition on January 17, 2023.  Defendants filed their reply on January 23, 2023.

Summary of Demurrer

In support of their demurrer to Plaintiff’s seventh cause of action, Defendants argue Plaintiff’s causes of action for fraud fails because the cause of action is against “all defendants” and fails to allege with particularity any facts to show any statements made by Nidal, Barakat-Allah, or Nuha were knowingly false when made, material, justifiably relied upon by Plaintiff, made with the intent to deceive, and caused Plaintiff damages.  (Demurrer, pg. 3; Hills Transportation Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 708.) 

Fraud- Misrepresentation (7th COA)

Uncertainty

Defendants argue Plaintiff’s allegations are so vague one cannot determine which representations made by which Defendants were allegedly false, or who “Abdul” was supposed to be an agent of.  (Demurrer, pg. 3.)  The pleading also alternates between “the Defendants” and “Defendant” in reference to the same line of conduct.  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.)  Here there is no ambiguity about which counts or claims are directed against specific defendants, and any questions about Abdul can be determined in discovery.  The demurrer is overruled on the grounds of uncertainty.

Failure to State a Claim

“The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.”  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)  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.)  To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false 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 Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff alleges when he experienced the leaking ceiling on February 2, 2019, he told Defendant’s [sic] agent, Abdul, that he would need to have a hotel room paid for because he could not spend the night there.  (SAC ¶119.)  The SAC earlier describes Abdul as Defendants’ agent.  (See SAC ¶ ¶ 49-52.) Abdul also told Plaintiff that Defendants would send someone to fix the floor and replace the carpet.  (SAC ¶119.)  Plaintiff alleges instead of paying for a hotel room, Abdul told Plaintiff that he would not have to pay the February 2019 rent, and Plaintiff relied on this statement and did not pay rent in February 2019.  (SAC ¶120.)  Plaintiff alleges on February 3, 2019, the ceiling collapsed and dropped rodent excrement and mold-covered drywall on Plaintiff.  (SAC ¶121.)  Plaintiff alleges when Abdul arrived and saw the collapsed ceiling, mold, and excrement at the Subject Property, Plaintiff asked Abdul if Defendants would pay to have mold testing done at the Subject Property, and Abdul represented to Plaintiff that mold testing was not necessary and that there was no mold in the Subject Property.  (SAC ¶121.)  Plaintiff alleges on February 4, 2019, he hired Fun Guy Inspection & Consulting company to conduct a mold inspection, and mold was found throughout the Subject Property.  (SAC ¶122.)  Plaintiff alleges on February 6, 2019, Defendants sought to recover possession of the Subject Property for non-payment of rent in direct contradiction to the statements made by Abdul to the Plaintiff that no rent was due given the condition of the unit at the time.  (SAC ¶123.)  Plaintiff alleges Defendants doubled down on their attempt to recover possession and even claimed complaint [sic] ignorance as to any ongoing habitability issues in the unit.  (SAC ¶123.)  Plaintiff alleges Defendant did not send someone to fix the unit during Plaintiff’s tenancy and the unit was not habitable.  (SAC ¶124.)  Plaintiff alleges the statements made by Defendants’ agent, Abdul, and Defendants’ claim of ignorance as to the need for repairs in the unit were false.  (SAC ¶125.)  Plaintiff alleges he relied on Defendants’ representations that he would not have to pay rent, and Defendants intended for Plaintiff to rely on this representation so that they could conceal the true retaliatory reason for seeking to recover possession of the Subject Property.  (SAC ¶126.)  Plaintiff alleges as a consequence of Defendants’ misrepresentations Plaintiff was forced to suddenly move out at great cost to him. (SAC ¶127.)  Plaintiff alleges he was harmed and the Defendants’ concealment and misrepresentations were a substantial factor in causing Plaintiff’s harm.  (SAC ¶128.) 

Defendants argue Plaintiff failed to allege intent and cannot merely plead conclusory allegations.  (Demurrer, pg. 4; Hills Transportation Co., 266 Cal.App.2d at pg. 707 [“No specific facts were pleaded to show . . . from what data the falsity of [defendant’s] intentions could be inferred.”].)  Defendants argue Plaintiff claims on February 2, 2019, he was told he did not have to pay rent and on February 6, 2019, he received a notice to quit or pay rent, but Plaintiff had not paid the February 2019 rent and rent was already past due when he was allegedly told he did not have to pay.  (Id.; SAC ¶ 65).  Defendants argue since Plaintiff had already missed timely payment of the February 2019 rent, he could not have justifiably relied on any purported statement that he did not have to pay rent.  (Demurrer, pg. 4.) 

Here Plaintiff alleges Defendants’ agent Abdul made the misrepresentations, what he said, and when he said it.  Here, Plaintiff have also sufficiently pled intent, which can be inferred.  The SAC alleges that Plaintiffs’ agent told Plaintiff that he did not have to pay rent, and then four days later served Plaintiff with a three day notice to quit, despite being on notice of the various issues.  (SAC ¶¶ 45, 49, 51, 53, 65, 118 -120.) Plaintiff sufficiently pleaded that he justifiably relied on the misrepresentations and stayed at a hotel.  (SAC, ¶55, 126.)

Accordingly, Defendants’ demurrer is overruled.

Dated:  January ____, 2023

Hon. Monica Bachner

Judge of the Superior Court