Judge: Ronald F. Frank, Case: 23TRCV01484, Date: 2024-05-16 Tentative Ruling

Case Number: 23TRCV01484    Hearing Date: May 16, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 May 16, 2024¿¿ 

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CASE NUMBER:                   23TRCV01484

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CASE NAME:                        Kristen Robertson; Candice Robertson v. NGX3, LLC, et al.

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MOVING PARTY:                 Defendant, Prime Healthcare Centinela, LLC dba Centinela Hospital Medical Center, Prime Healthcare Services, LLC, and Veritas Healthcare Services, Inc.

RESPONDING PARTY:        Plaintiff, Fadirko Dillon

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TRIAL DATE:                        None Set.   

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MOTION:¿                              (1) Demurrer¿ 

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Tentative Rulings:                  (1) SUSTAINED.

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On May 10, 2023, Plaintiffs, Kristen Robertson and Candice Robertson (collectively, “Plaintiffs”) filed a Complaint against Defendants, NGX3, LLC, Coastline Real Estate Advisors, Inc., and DOES 1 through 50. On September 8, 2023, Plaintiffs filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) Failure to Provide Habitable Dwelling; (2) Unfair Competition (Business and Professions Code § 17200); and (3) Negligence.

Now, Defendants, NGX3, LLC and Coastline Real Estate Advisors, Inc. (“Demurring Defendants”) file a Demurrer to Plaintiffs’ FAC.

B. Procedural¿¿ 

On December 12, 2023, Demurring Defendants filed this demurrer to the FAC. On February 5, 2024, the parties filed a stipulation to continue the hearing on demurrer. Further, on April 16, 2024, the parties filed another application to continue the demurrer. Moreover, again on Mary 7, 2024, the parties filed a stipulation to continue the hearing to May 16, 2024, which was granted. On May 9, 2024, Demurring Defendants filed a notice of non-opposition.

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.)¿¿¿ 

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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

Demurring Defendants demur to the FAC on the grounds that they argue Plaintiffs lack standing to bring their Second Cause of Action for Unfair Competition under California Business and Professions Code section 17200, et seq., and also that this cause of action fails to state a cause of action against Demurring Defendants.

California Business and Professions Code, Section 17200, et seq.

First, Defendant argues that Plaintiffs are not in possession of any units owned by Defendants, and thus, do not have standing to bring this motion.  Further, Defendant argues that Plaintiff fails to state sufficient fact to state a claim against Defendant. To set forth a claim for a violation of Business and Professions Code section 17200 (“UCL”), Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

Here, Plaintiffs plead that Defendants transact business, or have transacted business, by owning, operating, managing, and allowing residential occupancy and use and collecting rental income from property within the State of California. (FAC, ¶ 44.) Plaintiffs assert, in a conclusory way, that Defendant’s actions are in violation of the laws and public policies of the State of California and are inimical to the rights and interests of the public. (FAC, ¶ 44.) Further, Plaintiffs further contends that Defendants have engaged in one or more unlawful, unfair, or fraudulent business acts or practices, as prohibited under California Business and Professions Code section 17200, et seq., through the following conduct: (1) By maintaining unsafe conditions in violation of State of California and the Los Angeles County//Municipal Code; and (2) By maintaining an unsafe building in violation of State of California and the Los Angeles County//Municipal Code. (FAC, ¶ 45.)

Plaintiffs further allege that as a direct and proximate result of the foregoing acts and practices, Defendants have received and will receive income and other benefits, which they would not have received if they had not engaged in the unlawful, unfair, or fraudulent business acts or practices, and that Plaintiffs are entitled to restitution from Defendants, including, but not limited to, disgorgement of an ill-gotten gains. (FAC, ¶ 46.)

Putting aside the standing issue for now, this Court finds that the allegations underlying Plaintiff’s unfair competition claim are insufficient to state a claim under Business and Professions Code section 17200 because they are conclusory.  Plaintiff fails to identify any specific provision of the Municipal Code that Defendant violated. Although in other portions of the FAC, Plaintiffs note that they are alleging violations of Civil Code 1941 and Health and Safety Code § 17920.3, Plaintiffs fail to plead facts specifying what Defendant’s violations are or showing that Defendant’s conduct amount to a business practice rather than a violation that has affected Plaintiffs alone. 

This Court notes that it need not reach the standing issue in this demurrer as it finds Plaintiffs failed to sufficiently plead a cause of action for Violation of Business & Professions Code section 17200. As such, the demurrer is SUSTAINED with twenty (20) days leave to amend.

IV. CONCLUSION¿¿ 

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For the foregoing reasons, Defendant’s demurrer is SUSTAINED with leave to amend.

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Defendant is ordered to give notice.