Judge: Theresa M. Traber, Case: 23STCV16201, Date: 2024-03-18 Tentative Ruling
Case Number: 23STCV16201 Hearing Date: March 18, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: March 18, 2024 TRIAL
DATE: NOT SET
CASE: Avishai Kohanzad v. Crown Towers
Homeowners’ Association
CASE NO.: 23STCV16201 
DEMURRER
TO COMPLAINT AND MOTION TO STRIKE
MOVING PARTY: Defendant Crown Towers Homeowners’ Association
RESPONDING PARTY(S): Plaintiff Avishaid
Kohanzad
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for negligence and breach of contract that was filed on
July 12, 2023. Plaintiff is a homeowner of a condominium in a multifamily
residential building, who alleges that Defendant failed to maintain the water
heater for the building, depriving Plaintiff of hot water in his home.
Defendant demurs to the fifth
through eighth causes of action in the Complaint and moves to strike the
accompanying prayers for relief for punitive damages and attorney’s fees.
TENTATIVE RULING:
Defendant’s Demurrer to the
Complaint is SUSTAINED with leave to amend.
Defendant’s
Motion to Strike is DENIED AS MOOT.
Plaintiff
shall have 30 days leave to file a First Amended Complaint.
DISCUSSION:
Demurrer to Complaint
Defendant
demurs to the fifth through eighth causes of action in the Complaint.
//
Legal Standard
A demurrer 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 via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The Declaration of Melissa Saracyan
in support of this motion states that she met and conferred with Plaintiff’s
counsel electronically on August 25, 2023 and telephonically on August 29,
2023. (Declaration of Melissa Saracyan ISO Demurrer. ¶¶ 3-4.) The parties were
unable to resolve this dispute. (Id. ¶ 5.) The Court therefore finds
that Defendant has satisfied the statutory meet-and-confer obligations.
Fifth Cause of Action: Intentional Misrepresentation
Defendant
demurs to Plaintiff’s Fifth Cause of Action for intentional misrepresentation
as failing to state facts sufficient to constitute a cause of action.
“The elements of fraud that will lead to a tort action are:
(a) misrepresentation; (b) knowledge of falsity; (c) intent to defraud, i.e.,
to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Engalla
v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Every
element of the cause of action for fraud must be alleged in the proper
manner and the facts constituting the fraud must be alleged with sufficient
specificity to allow defendant[s] to understand fully the nature of the charge
made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “This
particularity requirement necessitates pleading facts which show how,
when, where, to whom, and by what means the representations were
tendered.” (Ibid.) “[G]eneral and conclusory allegations
do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,
645.) “The requirement of specificity in a fraud action against a corporation
requires the plaintiff to allege the names of the persons who made the
allegedly fraudulent representations, their authority to speak, to whom they
spoke, what they said or wrote, and when it was said or written.” (Tarman v.
State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Defendant contends that the allegations pertaining to the
fifth cause of action are insufficient because they do not set forth any of the
representations in the level of detail required and do not identify the
individuals who made the representations or their authority to speak. The
Complaint alleges:
Beginning on October 2022 through the end of April 2023, the HOA falsely
and fraudulently represented to Plaintiff, through oral statements, emails and
in writing that there was no problem with the boiler room of the building and
that all problems involving the hot water were only contained in Plaintiff’s
individual unit. Plaintiff initially had no reason to doubt the HOA’s
representation and justifiably relied on these representations when Plaintiff
spent a multitude of money and time hiring expert plumbers to come fix his hot
water problem.
(Complaint ¶ 49.) Although Plaintiff claims in his
opposition that “he had discussed and been in contact with Defendant’s manager,
employees, the board and the President throughout the period of October 2022
through the end of April 2023,” (Opp. p. 6:6-8), the Complaint only makes a
nonspecific reference to an unidentified manager who, through some unspecified
mechanism, “notified Plaintiff that the problem arises from within the Subject
Unit” and “confirmed that, to fix the issue, Plaintiff needed to change the
cartridge in his shower.” (Complaint ¶¶ 11-12.) The rest of the Complaint
refers only to Defendant in the aggregate, not to any specific employee. These
allegations are not sufficient to meet the heightened pleading standard for
fraud allegations.
Accordingly,
Defendant’s demurrer to the Fifth Cause of Action is SUSTAINED.
Sixth Cause of Action: Negligent Misrepresentation
Defendant
demurs to the Sixth Cause of Action for negligent misrepresentation for failure
to state facts sufficient to constitute a cause of action and as duplicative of
the Fifth Cause of Action.
“Negligent
misrepresentation requires an assertion of fact, falsity of that assertion, and
the tortfeasor’s lack of reasonable grounds for believing the assertion to be
true. It also requires the tortfeasor’s intent to induce reliance, justifiable
reliance by the person to whom the false assertion of fact was made, and
damages to that person. An implied assertion of fact is ‘not enough’ to support
liability.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29
Cal.App.5th 146, 154.) “As is true of negligence, responsibility for negligent
misrepresentation rests upon the existence of a legal duty, imposed by
contract, statute or otherwise, owed by a defendant to the injured person. The
determination of whether a duty exists is primarily a question of law.” (Eddy
v. Sharp (1988) 199 Cal.App.3d 858, 864.) Negligent misrepresentation, like
intentional misrepresentation, must be plead with specificity. (Small v.
Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)
As the Court
has found that Plaintiff did not plead intentional misrepresentation with the
necessary specificity as to the representations alleged, Plaintiff has likewise
failed to plead negligent misrepresentation with that same specificity.
In so
ruling, the Court rejects the notion that these causes of action are
duplicative merely because they rely on an identical set of facts. The purpose
of asserting multiple causes of action in a pleading is to identify alternative
legal theories that entitle the Plaintiff to relief based on the same factual
occurrence.
Accordingly,
Defendant’s demurrer to the Sixth Cause of Action is SUSTAINED.
Seventh Cause of Action: False Promise
Defendant demurs to the Seventh
Cause of Action for false promise for failure to state facts sufficient to
constitute a cause of action and as duplicative of the Fifth Cause of Action.
The elements of promissory fraud, meaning fraud based on a
promise made without any intention of performing, are: (1) a promise made
regarding a material fact without any intention of performing it; (2) the
existence of the intent not to perform at the time the promise was made; (3)
intent to deceive or induce the promisee to enter into a transaction; (4)
reasonable reliance by the promisee; (5) nonperformance by the party making the
promise; and (6) resulting damage to the promisee. (Muraoka v. Budget Rent-A-Car
(1984) 160 Cal.App.3d 107, 119.) Every element of the cause of action for fraud
must be alleged in the proper manner and the facts constituting the fraud must
be alleged with sufficient specificity to allow defendant[s] to understand
fully the nature of the charge made. (Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.) “This particularity requirement necessitates pleading facts
which show how, when, where, to whom, and by what means the representations
were tendered.” (Ibid.) “[G]eneral and conclusory allegations do not
suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “The
requirement of specificity in a fraud action against a corporation requires the
plaintiff to allege the names of the persons who made the allegedly fraudulent
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written.” (Tarman v. State Farm Mut. Auto.
Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
The Complaint alleges that Defendant
promised Plaintiff that “they would making [sic] efforts to repair the boiler
room and/or other problems arising from the Subject Property to remedy
Plaintiff’s lack of hot water starting December 2022.” (Complaint ¶ 60.) There
are no other factual allegations in the Complaint which provide further detail
as to this alleged promise. The Complaint therefore does not satisfy the
heightened pleading standard for fraud claims with respect to this cause of
action.
In so finding, as with the sixth
cause of action, the Court rejects the notion that this cause of action is
identical to the Fifth Cause of Action. Promissory fraud, though similar to
ordinary intentional misrepresentation, is not an identical legal theory. These
causes of action are not duplicative.
Accordingly, Defendant’s Demurrer
to the Seventh Cause of Action is SUSTAINED.
Eighth Cause of Action: Fraudulent Concealment
Defendant
demurs to the Eighth Cause of Action for fraudulent concealment for failure to
state facts sufficient to constitute a cause of action and as duplicative of
the Fifth Cause of Action. The Court rejects Defendant’s
contention that this cause of action is duplicative for the reasons stated
above and addresses only the claim that this cause of action fails to state
sufficient facts.
The
elements of fraudulent concealment are (1) concealment or suppression of a
material fact; (2) by a defendant with a duty to disclose the fact to the
plaintiff; (3) intent to defraud the plaintiff by intentionally concealing or
suppressing the fact; (4) the plaintiff was unaware of the fact and would not
have acted as he or she did if he or she had known of the concealed or
suppressed fact; and (5) the plaintiff sustained damage as a result of the
concealment or suppression of fact. (Hambridge v. Healthcare Partners
Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Fraudulent
concealment claims are subject to a lighter specificity requirement than other
fraud claims. As the Court of Appeal explained, "it is harder to
apply this rule to a case of simple nondisclosure. 'How does one show
"how" and "by what means" something didn't happen, or
"when" it never happened, or "where" it never happened?'” (Alfaro
v. Community Housing Improvement System & Planning Assn., Inc. (2009)
171 Cal.App.4th 1356, 1384.) When the facts are necessarily in the possession
of the defendant, less specificity is required, since the purpose of the
specificity requirement is in part to provide notice to the defendant of the
basis for the claim. (Id.) However, even a claim for fraudulent
concealment still requires that a “representation was made to which the alleged
concealment was contrary.” (Daugherty v. American Honda Motor Co. (2006)
144 Cal.App.4th 824, 834.)
As with the other causes of action challenged on this motion,
Plaintiff’s Eighth Cause of Action, which alleges that Defendant concealed
“that there were problems with the boiler room and/or building that was causing
the lack of hot water,” (Complaint ¶ 70), rests on the allegation that
Defendant told Plaintiff that the lack of hot water “was arising from a problem
contained within Plaintiff’s own individual unit.” (¶ 71.) As discussed above,
Plaintiff offers no specifics on which to base this allegation.
Accordingly, Defendant’s demurrer to the Eighth Cause of Action is
SUSTAINED.
Uncertainty
Defendant also demurs to the fifth
through eighth causes of action for uncertainty.
Demurrers¿for uncertainty are disfavored,
because discovery can be used for clarification, and they apply only where
defendants cannot reasonably determine what issues or claims are stated.¿(Chen
v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal.,
Inc.¿(1993) 14 Cal.App.4th 612, 616.) If the complaint is sufficiently
comprehensible that Defendant can reasonably respond, the complaint is not
uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14
Cal.App.5th 841, 848 n.3.)
Here,
as should be apparent from the Court’s discussion of each cause of action, the
allegations are not so vague that Defendant cannot reasonably respond.
Leave to Amend
When a demurrer is sustained, the
Court determines whether there is a reasonable possibility that the defect can
be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318). When a plaintiff “has pleaded the general set of facts upon
which his cause of action is based,” the court should give the plaintiff an
opportunity to amend his complaint, since plaintiff should not “be deprived of his
right to maintain his action on the ground that his pleadings were defective
for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892,
900.) Accordingly, California law imposes the burden on the plaintiffs to
demonstrate the manner in which they can amend their pleadings to state their
claims against a defendant. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion
unless the complaint shows on its face it is incapable of amendment.
[Citation.] Liberality in permitting amendment is the rule, if a fair
opportunity to correct any defect has not been given." (Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
Plaintiff
has not stated how the complaint might be amended to cure the defects in these
causes of action. As the defects arise from a lack of specificity, however, the
Court will exercise its discretion to grant Plaintiff leave to amend.
Conclusion
Accordingly,
Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend.
//
//
Motion
to Strike Portions of Complaint
Defendant also moves to strike
portions of the Complaint. As the Court has sustained Defendant’s demurrer with
leave to amend, Defendant’s Motion to Strike is DENIED AS MOOT.
CONCLUSION:
Accordingly,
Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend.
Defendant’s
Motion to Strike is DENIED AS MOOT.
Plaintiff
shall have 30 days leave to file a First Amended Complaint.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: March 18, 2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@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 part.