Judge Ronald F. Frank, Case Number: 20STCV19334, Date: 2025-02-04 Tentative Ruling

Judge: Ronald F. Frank, Case: 20STCV19334, Date: 2025-02-04 Tentative Ruling

Case Number: 20STCV19334 Hearing Date: February 4, 2025 Dept: 8

Tentative Ruling

HEARING DATE: February 4, 2025

CASE NUMBER: 20STCV19334

CASE NAME: Hayden Fisher v. Equinox Fitness South Bay, Inc., et al.

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, PAC-’94, Limited Partnership

RESPONDING PARTY: Defendant/Cross-Defendant/Cross-Complainant, Equinox Fitness South Bay, Inc.

TRIAL DATE: October 27, 2025

MOTION: (1) PAC-‘94’s Demurrer to Equinox Fitness South Bay, Inc.’s Cross-Complaint

Tentative Rulings: (1) SUSTAINED. Section 6.07 of the Lease, a tenant responsibility provision for premises security incorporated by reference into the Complaint, appears inconsistent with the allegation that the landlord obligated itself to provide a safe parking lot. 20 days leave to amend to address the ambiguity.

I. BACKGROUND

A. Factual

On May 20, 2020, Plaintiff, Hayden Fisher (“Plaintiff”) filed a complaint against Defendants, Equinox Fitness South Bay, Inc., PAC – ’94, Limited Partnership, and DOES 1 through 50. The complaint alleges causes of action for: (1) Premises Liability; and (2) General Negligence.

On August 5, 2020, PAC-’94, Limited Partnership filed a cross-complaint against ROES 1 through 20, for total indemnity, implied partial indemnity, declaratory relief, equitable apportionment, and express indemnity.

On October 17, 2023, Equinox Fitness South Bay, Inc. (“Equinox”) filed a cross-complaint against PAC-’94, Limited Partnership (“PAC-’94”) and MOES 1 through 10 for: (1) Breach of Contract; (2) Equitable/Implied Indemnity; (3) Apportionment and Contribution; and (4) Declaratory Relief.

Now, PAC-’94 files a demurrer to Equinox’s cross-complaint as to Equinox’s first cause of action for Breach of Contract.

B. Procedural

On December 16, 2024, PAC-’94 filed this demurrer. On January 2, 2024, Equinox filed an opposition brief. On January 9, 2024, PAC-’94 filed a reply brief.

II. ANALYSIS

A. Legal Standard

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

B. Discussion

PAC-’94 demurs to Equinox’s cross-complaint on the grounds it asserts the first cause of action for Breach of Contract fails to state sufficient facts to constitute a cause of action for breach of contract.

i. Meet and Confer

Code of Civil Procedure section 430.41, subdivision (a) states that, before filing a demurrer, the moving party must engage in a specified meet and confer process with the party who filed the pleading at issue for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer/motion to strike. “[T]he 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…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before a demurrer to the amended pleading.” (emphasis added.) (Code Civ. Proc. § 430.41(a).) A declaration setting forth such meet and confer efforts must accompany the demurrer. (Code Civ. Proc. § 430.41(a)(3).)

PAC-’94’s counsel, J. Brian Urtnowski filed a declaration (“Urtnowski Decl.”) noting that this demurrer was previously filed on December 4, 2023, in Department 30, and was originally scheduled for hearing on January 16, 2024. (Urtnowski Decl., ¶ 2.) Urtnowski further states the original hearing was continued and then was taken off calendar as the case was transferred to other courtrooms. (Urtnowski Decl., ¶ 2.) However, upon transfer to Dept. 8, Urtnowski contends Judge Frank requested that the previously filed Motion for Summary Judgement and previously filed Demurrer be refiled in Dept. 8 to prevent any confusion that might occur resulting from the delay in these motions. (Urtnowski Decl., ¶ 2.)

In Equinox’s opposition, it asserts “PAC-’94 brings this demurrer after failing to meet and confer, but instead filed a declaration for an automatic extension of time which PAC-’94 knowingly prevented and interfered with EQUINOX from bringing its own motion for summary judgment because the pleadings are not settled.” (Opp. at p. 3.)

Here, the Court reviews the previously filed demurrer to see if PAC-’94 sufficiently met and conferred with Equinox’s counsel prior to originally filing this demurrer. Attached to the December 4, 2023 demurrer is the declaration of Lisamarie McDermott (“McDermott Decl.”), which states that prior to filing that demurrer, she attempted to meet and confer with Equinox’s counsel in writing in attempt to informally resolve the issues presented in this demurrer. (McDermott Decl., ¶ 2.) However, McDermott stated that opposing counsel did not respond to her attempts. But the McDermott declaration does not contain that meet and confer attempt in an exhibit to the declaration.

The Court requires oral argument clarifying the meet and confer attempts prior to bringing the originally filed demurrer and/or the refiled demurrer.

ii. Breach of Contract

PAC-’94 demurs to Equinox’s first cause of action for Breach of Contract on the grounds that it asserts Equinox fails to satisfy the elements necessary to state the first cause of action for Breach of Contract. To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “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.)

PAC-’94 contends that the Equinox has alleged that PAC-’94 breached the lease agreement by failing to “provide a safe parking lot” to Equinox. (Cross-Complaint, ¶ 12.) However, PAC-’94 also contends that the lease agreement attached to the cross-complaint evidences that there is no obligation within the terms of that least that requires PAC-’94 to provide Equinox with a “safe” parking lot. As such, PAC-’94 argues that the allegation that it was required to provide Equinox a “safe” parking lot is inconsistent with the lease agreement

attached to the cross-complaint and fails to support Equinox’s first cause of action for Breach of Contract.

In opposition, Equinox concedes that the word “safe” does not need to appear in the contract but argues that a contract includes not only the promises set forth in express words, but all such implied provisions as are indispensable to effectuate intention of parties and as arises from language of contract and circumstances under which it was made.

As noted above, if a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “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.) As such, the Court does not find that the terms of the contract per se need to be set out in the body of Equinox’s cross-complaint when Equinox included a copy of the written lease agreement which it incorporated by reference. (Cross-Complaint, ¶ 10.) There is no provision in the Lease cited by Equinox that specifies PAC-’94 furnish “safe” premises, although there are contract provisions governing the common areas (Article XXXI), landlord covenants (Article XXVI), and the condition of the premises upon delivery to the tenant (Article VIII). Section 6.07 entitled “Security” states that the tenant, not the landlord, is responsible for security of the Premises, a provision that is at best inconsistent with the Complaint’s allegation of a landlord covenant to provide a safe parking lot. Section 8.01 discusses representations and warranties as to the condition of the Premises upon delivery, but that paragraph makes no mention of the parking lot. Section 26.01 lists the landlord’s covenants but makes no mention of the parking lots. Section 31.01 discusses the Common Areas and indicates the landlord shall maintain the common areas including the existing parking areas. The Court finds that the cross-complaint must be pleaded with more specificity by stating which are the sections of the lease agreement that Equinox alleges PAC-’94 breached as to the claimed obligation to provide a safe parking lot.

In the moving papers, PAC-’94 also alleges that Equinox has not identified how it was purportedly damaged by the condition of the parking lot it leased. In opposition, Equinox asserts it has identified how it was damaged by PAC-‘94’s failure to keep the parking lot in a safe condition. Paragraph 6 of the cross-complaint alleges “Plaintiff’s complaint seeks to impose liability upon and recovery of damages from cross-complainant for premises liability and negligence in connection with an incident that occurred on or about January 24, 2020… (Cross-Complaint, ¶ 6.) These are sufficient allegations at the pleading stage on the damage issue.

Accordingly, Equinox’s cross-complaint can be pleaded with more certainty specificity as to what duty PAC-’94 breached, and specifically which provision or provisions of the lease Equinox alleges PAC-’94 is alleged to have violated. Because the lease’s terms are expressly incorporated by reference into the Complaint, the incorporation of Section 6.07 appears inconsistent with the allegation that the landlord obligated itself to provide a safe parking lot. Thus, the Court will SUSTAIN the demurrer, but grant twenty (20) days leave to amend.

III. CONCLUSION

For the foregoing reasons, PAC-‘94’s Demurrer is SUSTAINED, with twenty (20) days leave to amend.

PAC-’94 is ordered to give notice.