Judge: Thomas D. Long, Case: 22STCV16977, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCV16977    Hearing Date: February 7, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 26, 2022, Cross-Complainants Diana Lands aka Diana Lands Nathanson and Diana Lands Nathanson Design Inc. (collectively, “Cross-Complainants”) filed a cross-complaint against Cross-Defendants Jessica De Rothschild, Alexander Gervasi, and Industria (USA) LLC (collectively, “Cross-Defendants”), alleging (1) negligence; (2) breach of contract (implied contract); (3) breach of contract (unformalized agreement); (4) breach of contract (common count – goods and services rendered); (5) quantum meruit; (6) defamation (false light); (7) intentional infliction of emotional distress (“IIED”); (8) negligent infliction of emotional distress (“NIED”); (9) fraud and deceit (intentional misrepresentation); (10) fraud and deceit (concealment); (11) fraud and deceit (negligent misrepresentation); and (12) negligence per se.

On October 28, 2022, Cross-Defendants filed a demurrer to the first, third, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action.

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, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

A.        First Cause of Action – Negligence

A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff.  (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

The first cause of action alleges that Cross-Defendants retained Cross-Complainants to perform interior design service, but Cross-Defendants breached their duty and failed to pay for services rendered.  (Cross-Complaint ¶¶ 13, 15.)  This is an improper attempt to turn a breach of contract into a tort cause of action for “negligent failure to pay.”

However, this cause of action also alleges that Rothschild breached her duty to operate her motor vehicle in a safe and responsible manner, struck Lands’ vehicle, harmed Lands, and left the scene.  (Cross-Complaint ¶¶ 17-20.)  Cross-Defendants do not address this portion of the negligence cause of action.

“Ordinarily, a general demurrer does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the demurrer will be overruled.”  (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)  But here, the single cause of action for negligence improperly alleges two independent, unrelated bases for negligence: failure to pay and the motor vehicle accident.  The first cause of action is therefore not drawn in conformity with pleading requirements.  (See Code Civ. Proc., § 436, subd. (b).)  Therefore, in its discretion, the Court strikes the allegations relating to negligent failure to pay for services rendered (Cross-Complaint ¶¶ 13-16).

The demurrer to the first cause of action’s “Count One” and “Count Two” is sustained, and the Court strikes those allegations.

B.        Third Cause of Action – Breach of Contract (Unformalized Agreement)

The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.  (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The third cause of action alleges that Cross-Complainant entered into a contract with Cross-Defendants for the provision of interior design services for two projects.  (Cross-Complaint ¶¶ 25, 27.)  Cross-Complainant performed all requirements under the contract, but Cross-Defendants breached the contract by withholding payment.  (Cross-Complaint ¶¶ 25, 27.)

Cross-Defendants argue that this is “a nearly verbatim rehash of Lands’ second cause of action for breach of implied contract” and is superfluous.  (Demurrer at p. 8.)  The second cause of action alleges breach of implied contract; this cause of action alleges breach of contract.  Cross-Complainant may plead alternative contract theories.

The demurrer to the third cause of action is overruled.

C.        Sixth Cause of Action – Defamation (False Light)

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage.”  (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.)  “The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.”  (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.)

“False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.  A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.  A ‘false light’ cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim, including proof of malice [where malice is required for the libel claim].”  (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264, quotation marks and citations omitted, brackets in original.)

The sixth cause of action alleges only that “Cross-Defendants publicly disclosed information or material that showed Cross-Complainants in a false light.  The false light created by the disclosure would be highly offensive to a reasonable person in Cross-Defendants’ position.  Cross-Defendants were negligent in determining the truth of the information or whether a false impression would be created by its disclosure.  Cross-Complainants were harmed as a result of the disclosed information. Cross-Defendants’ conduct was a substantial factor in causing Cross-Complainants’ harm.”  (Cross-Complaint ¶ 35.)  There is no information about what was disclosed and how it was disclosed.

The demurrer to the sixth cause of action is sustained.

D.        Seventh, Eighth Causes of Action – IIED, NIED

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’  [Citation.]  ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’  [Citation.]”  (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)  “[T]here is no independent tort of negligent infliction of emotional distress.  [Citation.]  The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.  [Citations.]  That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.  [Citation.]”  (Potter v. Firestone Tire &Rubber Co. (1993) 6 Cal.4th 965, 984-985.)

The seventh and eighth causes of action allege severe emotional distress caused when Cross-Defendants’ “refused to pay Cross-Complainants for services rendered with the intent of inflicting financial harm upon Cross-Complainants to punish Cross-Complainants for project delays that had nothing to do with DIANA LANDS NATHANSON DESIGN, INC.’s interior design services.”  (Cross-Complaint ¶¶ 38, 41.)  “[D]amages for mental suffering and emotional distress are generally not recoverable in an action for breach of an ordinary commercial contract in California.  [Citations.]  ‘Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.’  [Citation.]”  (Erlich v. Menezes (1999) 21 Cal.4th 543, 558.)  The failure to pay for services is not this type of breach, and Cross-Complainant has now shown that she can amend the cross-complaint to remedy these defects.

The demurrer to the seventh and eighth causes of action is sustained.

E.        Ninth, Tenth, Eleventh Causes of Action – Fraud and Deceit (Intentional Misrepresentation, Concealment, Negligent Misrepresentation)

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.  [Citations.]  The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.  [Citations.]”  (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.)  “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.”  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)

Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”  (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)

The misrepresentation that is alleged for all of these causes of action is that Industria (USA) LLC was authorized to conduct business in California.  (Cross-Complaint ¶¶ 43, 46, 49.)  Cross-Complainants would not have agreed to perform services for Industria if they knew that it was not authorized to conduct business in California.  (Cross-Complaint ¶¶ 43, 46, 49.)  Cross-Complainants do not plead with specificity why this was a material misrepresentation, how they justifiably relied on it to their detriment, and how this reliance caused their harm.

The demurrer to the ninth, tenth, and eleventh causes of action is sustained.

F.         Conclusion

The demurrer to the first cause of action’s “Count One” and “Count Two” is SUSTAINED, and the Court strikes paragraphs 13-16 without leave to amend.  Paragraphs 17-20 of the first cause of action are not affected.

The demurrer to the third cause of action is OVERRULED.

The demurrer to the seventh and eighth causes of action is SUSTAINED without leave to amend.

The demurrer to the sixth, ninth, tenth, and eleventh causes of action is SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 7th day of February 2023