Judge Randolph M. Hammock, Case 21STCV01978 2022-09-14 Tentative Ruling

Plaintiff Bruce Pody alleges Defendants failed to properly maintain, control or repair Plaintiff’s leased premises located at 9381 W. Olympic Blvd., Unit F, Beverly Hills, CA 90212. Specifically, Plaintiff alleges Defendants have failed to remedy the toxic mold, as well as other issues, in the subject premises despite repeated notice from Plaintiff.

The operative Second Amended Complaint alleges causes of action for (1) breach of warranty of habitability (violation of Civil Code section 1941.1), (2) breach of warranty of habitability (Health & Safety Code section 17920.3), (3) breach of warranty of habitability (violation of Civil Code section 1942.4, (4) negligence – premises liability – negligence per se, (5) nuisance, (6) breach of contract, (7) breach of covenant of quiet enjoyment, and (8) fraud/deceit.

Defendants Shirley M. Jansen, individually and as Trustee of the Jansen Family Trust, and Kenneth Paul Harter II dba Westwood Property Management, now demur to the SAC’s eighth cause of action for fraud/deceit. Defendants also move to strike punitive damages under the eighth cause of action. Plaintiff opposes the demurrer and motion to strike.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Defendants again demur to the eighth cause of action for fraud/deceit on the grounds it does not meet the heightened pleading standard for fraud. This court previously sustained Defendants’ demurrers to this cause of action in the Complaint and First Amended Complaint.

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 must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

This is the third demurrer to the fraud cause of action. In this court’s Ruling sustaining the demurrer to this claim in the Complaint, the court explained that “Plaintiff ha[d] failed to allege what affirmative misrepresentations of material facts were actually made about the source of the mold and toxic contamination and effects to Plaintiff’s physical health. Additionally, Plaintiff ha[d] failed to allege how, where, and to whom the representations were made. Plaintiff ha[d] further failed to allege facts showing justifiable reliance.” (See Ruling, 11/30/2021.)

Subsequently, when sustaining the demurrer to the First Amended Complaint, this court explained that Plaintiff had “still fail[ed] to plead what was said with particularity, other than vague oral statements by Williams and Paul over a three-month period. Plaintiff ha[d] also failed to plead any facts showing her justifiable reliance on the misrepresentations or concealments, a required element of the claim.” (See Ruling, 04/29/2022.)

Now in the operative Second Amended Complaint, Plaintiff again alleges both concealment and misrepresentation. Plaintiff alleges Defendants’ manager Michael misrepresented to Plaintiff in November of 2018 “that defendants were planning to resolve the infestation of toxic mold,” and again the next month “that defendants were planning to resolve the vermin and cockroach infestation.” (SAC ¶ 145.) Manager Michael also “made repeated and constant misrepresentations of material facts concerning the source of mold and toxic contamination.” (Id.)

As for concealment, Plaintiff alleges that manager Michael “concealed from Plaintiff that he was aware from complaints from other tenants that the subject property was completely contaminated with toxic mold and/or fungi.” (Id.)

In essence, Plaintiff has restated the vague allegations previously made in the two former pleadings; Plaintiff, however, adds little by way of substance to meet the heightened pleading standard. Plaintiff again pleads no specific facts supporting that he justifiably relied on the misrepresentations or omissions; the SAC alleges only that Plaintiff “justifiably relied on Defendant's misrepresentation regarding the uninhabitable conditions and continued to pay rent.” (Id. ¶ 151.) In addition, Plaintiff still pleads no specific facts showing Defendants made the misrepresentations with knowledge of their falsity. Plaintiff pleads that Defendants “knew said representations were false…[because they] were acting in their respective capacity as managers and authorized representatives of the subject property and had knowledge of the hazardous condition of the subject property through said responsibilities.” (Id. ¶ 148.) This does little more than plead in circles.

Ultimately, the SAC contains only “general and conclusory allegations,” which “do not suffice” to plead a claim for fraud. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) As this was Plaintiff’s third opportunity to plead specific facts supporting a fraud cause of action, he has been given “a fair prior opportunity to correct the substantive defect.” (Colich & Sons v. Pac. Bell (1988) 198 Cal. App. 3d 1225, 1241.) Because he has not done so, no leave to amend will be given.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. This is the third attempt of the Plaintiff to properly allege a viable cause of action for fraud and deceit. He has failed to do, nor has he made a sufficient offer of proof as to how he could reasonably amend this cause of action with additional facts.

A motion to strike lies either (1) to strike any 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.)

Defendants seek to strike Plaintiff’s request for punitive damages under the eighth cause of action. (SAC ¶ 156.) As the demurrer to the eighth cause of action is sustained, the motion to strike the request for punitive damages is GRANTED, in view of the fact that there are no other causes of action which would support a claim for punitive damages. No leave is granted, per CCP § 430.41 (e)(1).

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in p