Judge Timothy Patrick Dillon, Case 20STCV20169 2022-09-06 Tentative Ruling

Judge: Timothy Patrick Dillon, Case: 20STCV20169, Date: 2022-09-06 Tentative Ruling

Case Number: 20STCV20169 Hearing Date: September 6, 2022 Dept: 73

Ardalan v. Borchardt

The court issues its rulings regarding the demurrer (7256) and motion to strike (7256) of Cross-defendants Joanna Ardalan, Dr. Bach Ardalan, David Quinto, Stewart Fournier, Daniel Glaser, and Glaser Property Management, Inc. to the Borchardts’ “amended” cross-complaint.

Cross-defendants demur to the first cause of action, arguing that the Borchardts do not allege that Cross-defendants’ conduct “fell below the standard of care or that [the Borchardts] experienced any harm.” The court (Hon. Armen Tamzarian) overruled a similar demurrer by order dated October 7, 2021. There is no reason for a different result now. The Borchardts allege that these Cross-defendants acted in essence as property managers for the premises. As such, they are responsible for their own tortious conduct. The court cannot decide factual issues on a demurrer. Accordingly, the court overrules the demurrer.

The court overrules the demurrer to the second cause of action for negligence against Dr. Bach Ardalan and Joanna Ardalan. Dr. Ardalan is a landlord because he is an owner. The issues in this cause of action cannot be resolved on a demurrer.

As to the third cause of action for gross negligence, the court sustains the demurrer without leave to amend. In California, there is no separate cause of action for gross negligence. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, fn. 3 [“We agree with plaintiffs that California does not recognize a distinct common law cause of action for gross negligence apart from negligence.”]; Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, fn. 9 [“In reality, California does not recognize a distinct cause of action for “gross negligence" independent of a statutory basis.”].) Gross negligence is an aggravated type of negligence, not a distinct cause of action. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140; Sorensen v. Allred (1980) 112 Cal.App.3d 717, 725.)

Regarding the fourth cause of action for fraud, as the court pointed out in its October 7, 2021 order, “[the Borchardts] fail to allege sufficient facts for fraud.” (Minute Order dated Oct. 7, 2021, at p.5.) The court ruled that the Borchardts did not allege “reasonable or resulting damages.” (Ibid.) In their present pleading, the Plaintiffs fail to allege how they were damaged by the misrepresentations as opposed to the alleged uninhabitable conditions. Similarly, in their present pleading, the Borchardts do not allege that “they did anything in reliance” on any misrepresentation. There are no allegations that the Borchardts took any action in reliance on any misrepresentation. The Borchardts do not allege how any misrepresentation reasonably and detrimentally changed their behavior. The court therefore sustains the demurrer to this cause of action with leave to amend.

The court overrules the demurrer to the fifth cause of action for breach of contract and the sixth cause of action for breach of the covenant of good faith and fair dealing. The Borchardts sufficiently allege a breach of the lease against Joanna Ardalan and other failures to perform. The court cannot resolve the merits of the dispute on a demurrer.

Regarding the seventh cause of action for unjust enrichment, the court sustains the demurrer without leave to amend. In California, there is no separate cause of action for unjust enrichment. In California “[t]here is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490; Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 [“unjust enrichment is not a cause of action. [Citation] Rather, it is a general principle underlying various doctrines and remedies, including quasi-contract”].) The Borchardts did not plead a claim for quasi-contract or imposition of a constructive trust. The demurrer is sustained without leave to amend.

As to the eighth cause of action for intentional interference with contract, the court sustains the demurrer without leave to amend. “[O]nly ‘a stranger to [the] contract’ may be liable for interfering with it.” (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1603, 92 Cal.Rptr.3d 422 (Mintz), citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 513, 507, 514, 28 Cal.Rptr.2d 475, 869 P.2d 454 (Applied Equipment Corp.).) A claim for tortious interference “does not lie against a party to the contract” (Applied Equipment Corp., at p. 514, 28 Cal.Rptr.2d 475, 869 P.2d 454), or against the party’s agents (Mintz, at pp. 1603-1607, 92 Cal.Rptr.3d 422). “The tort duty not to interfere with the contract falls only on strangers--interlopers who have no legitimate interest in the scope or course of the contract’s performance.” (Applied Equipment Corp., at p. 514, 28 Cal.Rptr.2d 475, 869 P.2d 454.) And critical here, an agent cannot be liable for interfering with its principal’s contracts. (Mintz, at pp. 1603-1607, 92 Cal.Rptr.3d 422; accord, Shoemaker v. Myers (1990) 52 Cal.3d 1, 24-25, 276 Cal.Rptr. 303, 801 P.2d 1054 [“corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation’s contract”].) Throughout their amended cross-complaint and in the attached exhibits, the Borchardts allege that Cross-defendants Quinto, Fournier, and Glaser were the agents of Cross-defendant Joanna Ardalan. As such, it is well-established that a party to a contract, Joanna Ardalan, cannot interfere with her own contract, the lease at issue. Cross-defendants Quinto, Fournier, and Glaser were not strangers to the lease because, according to all the Borchardts’ pleadings to date, these Cross-defendants were performing on behalf of Joanna Ardalan. Accordingly, the court sustains the demurrer to this cause of action without leave to amend.

In sum, the court (i) sustains the demurrer (7256) to the third, seventh, and eighth causes of action without lease to amend; (ii) sustains the demurrer to the fourth cause of action with leave to amend; and (iii) overrules the demurrer to the first, second, fifth, and sixth causes of action.

Given the sustaining of the demurrer to the fourth and eighth causes of action, the motion to strike (7256) the punitive damage allegations is moot. It is therefore denied.

The court points out that each paragraph of a complaint or cross-complaint is required to be separately numbered throughout the pleading. Leave to amend within 20 days.