Judge: Timothy Patrick Dillon, Case: 20STCV20169, Date: 2022-08-17 Tentative Ruling

Case Number: 20STCV20169    Hearing Date: August 17, 2022    Dept: 73



Counsel for Cross-Complainants/opposing party:  Self-Represented

Counsel for Cross-Defendant/moving party:  Calvin E. Davis, Crystal W. Yu, Candice S. Nam (Gordon Rees Scully Mansukhani, LLP)






Cross-Defendant Mr. Handyman International, LLCs motion for judgment on the pleadings is GRANTED.




A.      Pleadings/Allegations


On May 28, 2020, Joanna Ardalan (Plaintiff”) filed a complaint against Defendants Josephine Borchardt, Genevieve Borchardt, Francesca Borchardt, Gabriela Borchardt, and Does 1-10, stating the following causes of action: 


C/A 1: Breach of Contract

C/A 2: Declaratory Relief

C/A 3: Negligence

C/A 4: Unjust Enrichment


The claims asserted within the Complaint arise from a landlord-tenant dispute in connection with a lease agreement for a residential property located at 1628 N. Beverly Glen Drive, Los Angeles, California.


On July 18, 2022, Josephine Borchardt, Genevieve Borchardt, Francesca Borchardt (collectively, Cross-Complainants”) filed the operative amended cross-complaint (ACC”) against Plaintiff, Bach Ardalan, Stewart Fournier, Compass, Inc., Compass California, Inc., Kathleen T. Mehringer, David W. Quinto, Daniel Glaser, Glaser Property Management Inc., Mr. Handyman of California, Inc., Freshly Minted, Inc. dba Mr. Handyman, Mr. Handyman International, LLC, and Does 1-10, stating the following causes of action:


C/A 1: Professional Negligence

C/A 2: Negligence

C/A 3: Gross Negligence

C/A 4: Fraud by Misrepresentation

C/A 5: Breach of Contract

C/A 6: Breach of Implied Covenant of Good Faith and Fair Dealing

C/A 7: Unjust Enrichment

C/A 8: Intentional Interference with Contractual Relations


Cross-Complainants allege, inter alia, the cross-defendantsconduct was improper and perpetuated uninhabitable living conditions at the subject property, during Cross-Complainantstenancy.


B.      Movant’s Motion for Judgment on the Pleadings


On July 25, 2022, Cross-Defendant Mr. Handyman International, LLC (hereinafter Movant”) filed a motion for judgment on the pleadings to Cross-ComplainantsACC on the following ground:

·         The sole cause of action raised against it for professional negligence in the ACC lacks merit because it fails to allege sufficient facts to constitute a cause of action against Movant.

On August 4, 2022, Cross-Complainants filed their opposition, arguing that the first cause of action has been sufficiently pleaded against Movant.  

In its reply, Movant argues that Cross-Complainants fail to show that there is any basis to support the conclusory allegation that Movant owed them a duty.



A.                 Legal Standard for Motion for Judgment on the Pleadings


Code of Civil Procedure § 438 states, in relevant part:  “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1) The motion provided for in this section may only be made on one of the following grounds: . . . . (B)  If the moving party is a defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.  (ii)  The complaint does not state facts sufficient to constitute a cause of action against that defendant.” 


A motion for judgment on the pleadings “has the purpose and effect of a general demurrer.”  (Smiley v. Citibank (South Dakota), N.A. (1995) 11 Cal.4th 138, 146 (citation omitted).)  “[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein.  As appropriate, however, it may extend its consideration to matters that are subject to judicial notice.  In this, it performs essentially the same task that it would undertake in ruling on a general demurrer.”  (Id. (citations omitted).) 


A party moving for judgment on the pleadings must meet and confer in person or telephonically with the party who filed the pleading that is subject to the motion to determine if an agreement can be reached regarding the claims raised in the motion.  (Code Civ. Proc. § 439, subd. (a).)  The moving party must file a declaration detailing the meet and confer efforts.  (Code Civ. Proc. § 439, subd. (a)(3).) 


B.                  Judicial Notice


The court grants Movants request for judicial notice pursuant to Evidence Code § 452(d) as to items nos. 1-20 and pursuant to Evidence Code § 452(h) as to item no. 21.


C.                  Meet and Confer


Upon review of the declaration submitted along with the instant motion, the court finds that the parties were able sufficiently meet and confer pursuant to Code Civ. Proc. § 439, subd. (a). (Nam Decl.  20, Exh. A.) 


D.                 First Cause of Action: Professional Negligence


Movant argues that the first cause of action for professional negligence fails because there is no allegation to show that Movant owed a duty to the Cross-Complainants.


In order to maintain a cause of action for professional negligence, a plaintiff must allege the following elements: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Nichols v. Keller (1993) 15 Cal. App. 4th 1672, 1682.) When there is no legal duty, the issue of professional negligence cannot be pled because with the absence of a breach of duty, an essential element of the cause of action for professional negligence is missing.” (Giacometti v. Aulla, LLC (2010) 187 Cal.Ap.4th 1133, 1137.) The general rule is that privity of contract is a requisite to a professional negligence claim.” (Id.) Additionally, Courts have found a duty owed to third parties where the sole purpose of the transaction was to benefit a third party.” (Id. at 1139.)


Here, Movant argues that that the ACC fails to allege any facts to show that there was any contractual privity between it and the Cross-Complainants. (Motion at pg. 11.) Furthermore, Movant contends that the allegations fail to allege any facts to show that it was retained to perform any services at the subject property. (Id.) Rather, Movant points to the allegation that states that the contract was among, Josephine Borchardt, Plaintiff, and Freshly Minted, Inc. dba Mr. Handyman (Freshly Minted, Inc.”) (Id.; ACC at pg. 57:20-24.) Moreover, Movant argues that the facts fail to show that any relevant transaction was intended to benefit the Cross-Complainants because there are no facts to show that Movants activity of licensing franchises to independent businesses would be intended to benefit Cross-Complainants as third parties. (Motion at pg. 12.) Thus, Movant reasons that there is no causal nexus between its conduct and Cross-Complainants purported harm. (Id.) Furthermore, Movant argues that there is not a sufficient showing of any purported breach or an alleged harm. (Motion at pg. 13.) Additionally, Movant argues that the conduct of a franchisee cannot be imputed on it when there are no allegations to show that Movant controlled the day-to-day operations of a franchisee. (Motion at pp. 14-15.)


In opposition, Cross-Complainants argue that this cause of action has been sufficiently alleged. (Opposition at pp. 4-11.) They reason that Movants duty arose from the franchise agreement it had with Freshly Minted, Inc. They contend that Movant had a duty to end the agreement when Freshly Minted, Inc. failed to maintain a contractors license and was FTB Suspended. (Opposition at pg. 3.) Thus, Cross-Complainants reason that Movant improperly permitted Freshly Minted, Inc. to continue operating as a franchisee. (Id.)


Upon review of the ACC, the court finds that this cause of action has not been sufficiently alleged against Movant. Pertinent to the instant motion, the ACC alleges that Plaintiff hired Freshly Minted, Inc. to perform repairs and maintenance at the subject property due to mold and a rat infestation. (ACC at ¶¶ 19 and pg 56:8-14, 56:22-57:3.) It is further alleged that Freshly Minted, Inc. was negligent in its repairs and caused further damage, which exacerbated the inhabitable living conditions at the subject property. (ACC at pg. 59:3-62:7.) The only allegation asserted directly against Movant is that it breached its duty in not conducting the necessary due diligence to confirm that one of its franchisees was not engaging in illegal or unpermitted construction. (ACC at pg. 63:12-17.) Cross-Complainantscontention that Movants failure to revoke Freshly Minted, Inc.s franchisee status was a breach of their duty owed to them is a tenuous argument and conclusory. First, the purported negligent work was solely done by Freshly Minted, Inc. on behalf of Plaintiff and the Cross-Complainants. Thus, contractual privity would exist among those parties. Second, the allegations do not support that Cross-Complainants were third party beneficiaries of the franchise agreement between Movant and Freshly Minted, Inc. Third, the ACC fails to allege and Cross-Complainants do not state in their opposition that Movant controlled the day-to-day operations of Freshly Minted, Inc. to suggest that Freshly Minted, Inc.s conduct is imputed on Movant. (See Patterson v. Dominos Pizza, LLC (2014) 60 Cal.4th 474, 497.) Therefore, the ACC fails to establish the element of duty. (Giacometti, supra, 187 Cal.Ap.4th at 1137.)


Accordingly, the court grants Movants motion because the first cause of action for professional negligence has not been sufficiently alleged. The court is inclined to decline to grant Cross-Complainants leave to amend because they have failed to show how the aforementioned defect can be cured.  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [plaintiff has the burden of proving that an amendment would cure the defect”].)