Judge: Ronald F. Frank, Case: 21TRCV00531, Date: 2023-02-17 Tentative Ruling
Case Number: 21TRCV00531 Hearing Date: February 17, 2023 Dept: 8
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HEARING DATE: February 17, 2023¿¿
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CASE NUMBER: 21TRCV00531
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CASE NAME: Mohammed Abdoun v. South Bay Center SPE, LLC, et
al .¿¿¿
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MOVING PARTY: Defendants South Bay Center, et al.
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RESPONDING PARTY: Plaintiff, Mohammed Abdoun
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TRIAL DATE: October
3, 2023
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MOTION:¿ (1) Demurrer¿to First Amended Complaint
(2) Motion to Strike
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Tentative Rulings: (1) Defendant’s Demurrer is overruled
in part, sustained in part
(2) Defendant’s Motion to Strike is granted in part, denied
in part
A more detailed tentative ruling will be issued in advance
of the February 28, 2023 hearing once the CBRE motions are fully briefed. On the Court’s own motion, the hearings on the SBC Defendants’ demurrer and motion to strike are continued to February
28.
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At the outset, the Court notes
that different defendants have different demurrers to the same First Amended
Complaint that are set for hearing on different dates. The Court would appreciate in the future if the
various defendants attempt to coordinate their filings, hearings, and arguments
where possible, while recognizing that some defendants are situated differently
and that different allegations are made against them. But having two demurrer hearings within two
weeks of each other in the same case creates burdens not only for the
Plaintiff, but also for the Court. Assuming this case will move past the pleading
stage at some point, counsel would do well to make efforts in the future to present
joint pleadings and motions where possible.
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On October
19, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) against South
Bay Center SPE, LLC, QIC Properties US, Inc, QIC US Management, Inc, CBRE, Inc,
CBRE Group, Inc, L Catterton Real Estate, and DOES 1 through 20. Plaintiffs
allege the following causes of action: (1) Breach of Written Contract; (2)
Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Negligence; (4)
Negligent Interference with Prospective Economic Advantage; (5) Intentional
Interference with Prospective Economic Relations; (6) Fraud; (7)
Defamation/Trade Libel; (8) Negligent Infliction of Emotional Distress; and (9)
Intentional Infliction of Emotional Distress. The SBC Defendants demur to all nine causes of
action; the CBRE Defendants demur to less than all of the claims but the
briefing on their demurrer and motion to strike is not yet complete.
The Court
will be sustaining the SBC Defendants’ Demurrer to the implied covenant, interference
with prospective advantage, defamation, NIED and IIED causes of action. The Court is awaiting the completion of the briefing
to decide the remaining issues on the SBC Defendants’ pleading motions and the
CBRE Defendants’.
The Court will be overruling the SBC Defendants’
Demurrer to the negligence cause of action.
While the economic loss doctrine (cited in Judge Tanaka’s ruling on the
Motion for Judgment on the Pleadings) generally bars a negligence cause of
action where a party to a contract fails to allege an independent tort duty,
the FAC here does allege an independent tort duty and its breach. Paraphrasing the question presented in the
most recent economic loss doctrine case cited in the SBC Demurrer, the question
presented here is “Does a landlord or property owner owe the tenant /licensee a
tort duty sounding in general negligence principles to address pests and vermin
in and around other Mall tenants’ units near the Plaintiff’s such that upon a
breach of this duty the landlord or owner may be liable for the tenant's
economic losses?” (See Sheen v. Wells
Fargo Bank, N.A. (2022) 12 Cal.5th 905, 915.) Unlike the original Complaint where plaintiff
failed to adequate allege a tort duty independent of the Plaintiff’s own lease
contract, the FAC alleges in multiple paragraphs facts asserting that Defendants
owed an independent duty of care to maintain the adjacent portions of the Mall
and Food Court areas surrounding Plaintiff’s leased premises to ensure those
areas, the ceiling, and the floor were adequately pest controlled to prevent
collateral damage to Plaintiff’s hamburger restaurant. That duty of due care is independent of SBC’s
contractual duties owed to Plaintiff.
The Court is confused by the amended interference
with prospective advantage causes of action, because on the one hand plaintiff
alleges that each of these noncontracting parties were the agents and employees
of each other (FAC, ¶9) but
for purposes of alleging the tortious interference causes of action they were allegedly
acting independently of the contracting parties. Thus, these allegations appear to be at odds
with the principle that co-defendants who are the alleged agent or employee of
the contracting party cannot conspire with nor be held liable for inducing or
interfering with contractual relations.
(See Shoemaker v. Myers (1990) 52 Cal.3d 1, 25; Minz v. Blue Cross of California (2009)
172 Cal.App.4th 1594, 1604.
The Court will take oral argument at the February 28 hearing as to how
to reconcile these seemingly inconsistent allegations.
As to the defamation or trade libel cause of
action, Plaintiff alleges conduct, not a publication or statement.
Defendants’ demurrer alleges that the NIED cause
of action is not an independent cause of action and is duplicative of
Plaintiff’s third cause of action. The Court will concur. As to the IIED cause of action, the FAC does
not meet the pleading standard of conduct so extreme “as to exceed all bounds
of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and
ellipses omitted.)