Judge Olivia Rosales, Case 21STCV34647 2022-09-08 Tentative Ruling

Judge: Olivia Rosales, Case: 21STCV34647, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV34647 Hearing Date: September 8, 2022 Dept: C

ALONDRA & PIONEER PROPERTY, LLC v. H MART NORWALK, LLC

CASE NO.: 21STCV34647

HEARING: 09/08/22

TENTATIVE ORDER

I. Defendant H MART NORWALK LLC’s Demurrer to Plaintiff ALONDRA & PIONEER PROPERTY, LLC’s Complaint is OVERRULED. Defendant to Answer in 30 days.

II. Defendant H MART NORWALK LLC’s Motion to Strike Portions of Plaintiff ALONDRA & PIONEER PROPERTY, LLC’s Complaint is DENIED.

Moving Party to give notice.

This breach of contract action was filed by Plaintiff ALONDRA & PIONEER PROPERTY, LLC (“Plaintiff”) on September 20, 2021. The relevant facts, as alleged, are as follows: “On October 8, 2019, a large fire ignited at 15915 Pioneer Boulevard, Norwalk, California 90650. The burned building was owned by [Plaintiff] and maintained, occupied, and operated by Defendant, H MART NORWALK LLC. Defendant and Plaintiff entered into a Lease Agreement by which Defendant’s fire insurance proceeds were to be used to repair the damage to the burned building. Defendant failed to remit insurance proceeds to Plaintiff so Plaintiff can repair the building. This action seeks compensation for Plaintiff’s property damage and loss of rental income.” (Complaint ¶1.)

The Complaint asserts the following causes of action: (1) Breach of Lease Agreement; and (2) Breach of Implied Covenant of Good Faith and Fair Dealing

First Cause of Action – Breach of Contract

Whether it is written, oral, or implied, the elements of a cause of action for breach of contract are as follows: (1) the existence of a contract; (2) Plaintiff’s performance or excused non-performance; (3) Defendants’ breach; and (4) resulting damage to Plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) “If an action is based on a breach of written contract, the terms must be set forth verbatim in the body of the complaint or a copy of the contract must be attached and incorporated by reference.” (Id. at 459.) Alternatively, if the claim is based on a written contract, then “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co., (2002) 29 Cal.4th 189, 198-199.)

Plaintiff alleges the relevant terms of the Lease Agreement, verbatim in the body of the Complaint. (See Complaint ¶¶13-16.). Plaintiff also alleges that “Defendant breached the foregoing terms of the operative Lease Agreement by failing to name Plaintiff as an additional named Insured on its Fire Insurance Policy and by failing to remit to Plaintiff insurance proceeds necessary for the repair of the burned building arising from the October 8, 2019 fire.” (Complaint ¶17.) Lastly, Plaintiff sufficiently alleges that “Plaintiff had performed all covenants and conditions of the Lease Agreement to be performed on its part and is entitled to insurance proceeds from Defendant’s fire insurance policy so that Plaintiff can repair its building.” (Complaint ¶22.)

Defendant’s arguments in the instant demurrer involve factual determinations inappropriately considered at this stage in the litigation. The demurrer to the first cause of action is OVERRULED.

Second Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

Any claim for breach of the implied covenant of good faith and fair must be tied to alleged breaches of express contractual provisions. (Pasadena Live v. City of Pasadena (2004) 114 Cal. App. 4th 1089, 1094.)

Defendant argues that this claim fails because Plaintiff has not adequately pled a claim for breach of contract.

Given the Court’s ruling above, the demurrer to the second cause of action is OVERRULED.

Motion to Strike

Defendant moves to strike Plaintiff’s “allegations regarding compliance with the Lease as these allegations are directly refuted by the Complaint and its Attachments” and “Plaintiff’s allegations regarding Defendant’s purported failure to provide insurance proceeds to Plaintiff and suggestion that this constitutes a breach of lease”.

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

The motion to strike is DENIED. The Court cannot make factual determinations in response to a Motion to Strike. (See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) The Court must accept the factual allegations set forth in the Complaint as true at this stage in the litigation.