Judge Upinder S. Kalra, Case Number: 23STCV20532, Date: 2024-01-08 Tentative Ruling

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MOVING PARTY: Defendants Edward M. Buttwinick, as trustee of the Buttwinick Family Trust a/r, dated June 11, 2019 and as trustee of the Buttwinick Family Trust, dated May 4, 1990; Linda S. Buttwinick, as trustee of the Buttwinick Family Trust a/r, dated June 11, 2019 and as trustee of the Buttwinick Family Trust, dated May 4, 1990; Jill Buttwinick Zweier, as trustee of the Buttwinick Family Trust, dated May 4, 1990; and Karen Buttwinick, as trustee of the Buttwinick Family Trust, dated May 4, 1990.

1. Demurrer to the Fourth Cause of Action for failure to state sufficient facts to constitute a cause of action and for uncertainty;

2. Demurrer to the Fifth Cause of Action for failure to state sufficient facts to constitute a cause of action and for uncertainty;

1. Demurrer to the Fourth and Fifth Causes of Action is SUSTAINED with leave to amend;

On August 28, 2023, Plaintiff Cubosfera, LLC (Plaintiff) filed a Complaint against Defendants Edward M. Buttwinick, as trustee of the Buttwinick Family Trust a/r, dated June 11, 2019 and as trustee of the Buttwinick Family Trust, dated May 4, 1990; Linda S. Buttwinick, as trustee of the Buttwinick Family Trust a/r, dated June 11, 2019 and as trustee of the Buttwinick Family Trust, dated May 4, 1990; Jill Buttwinick Zweier, as trustee of the Buttwinick Family Trust, dated May 4, 1990; and Karen Buttwinick, as trustee of the Buttwinick Family Trust, dated May 4, 1990 (Defendants). The Complaint alleges seven causes of action for: (1) Declaratory Relief; (2) Breach of Contract; (3) Constructive Eviction; (4) Negligent Misrepresentation; (5) Intentional Misrepresentation; (6) Declaratory Relief; and (7) Nuisance.

According to the Complaint, Plaintiff leased property located at 13031 Montana Avenue (the Property) from Defendants. Plaintiff alleges Defendants have failed and refused to permit Plaintiff to proceed with a variance application and has refused to allow Plaintiff to operate its business at the Property or be present at the Property. Plaintiff alleges it was constructively evicted from the Property.

On October 25, 2023, Defendants filed the instant Demurrer and Motion to Strike.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, there is no meet and confer declaration. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)¿

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.¿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. …. 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¿147 Cal.App.4th at 747.)¿

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)¿

Fourth & Fifth Causes of Action – Negligent Misrepresentation & Intentional Misrepresentation

Defendants contend that these causes of action fail because Plaintiff did not plead negligent or intentional misrepresentation with particularity – namely, there are no factual representations alleged, no facts alleged concerning Plaintiff’s reliance, and Plaintiff failed to plead a causal link between the mistaken landlord identification and Plaintiff’s damages.[1] Plaintiff argues that the identity of a party to a contract is a material representation, that it sufficiently pled reliance, and sufficiently pled damages because Defendants’ misrepresentation because Plaintiff paid rent to Defendants and could not operate their business without the variance. Defendants reply that Plaintiff failed to allege facts that it was prevented from obtaining a variance use permit or other damages because the incorrect landlord name was on the lease.

“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. [Citation.] (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-31.) “ ‘ “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” [Citations.] [Citation.]’ ” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454.) “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity. [Citations.]” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166, disapproved of on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905.)

A cause of action for fraud must be alleged with specificity such that Plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Similarly, “[t]he 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.” (Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.)

Upon reviewing the Complaint, the court agrees that Plaintiff has not sufficiently alleged causes of action for negligent or intentional misrepresentation. In particular, Plaintiff has not sufficiently alleged facts indicating damages.[2] First, Plaintiff alleges that they relied on the landlord misrepresentation to enter the lease and to pay $700,000 in rent. (See e.g., Compl. ¶ 73.) However, it is unclear how paying rent that would otherwise be owed under a lease agreement damaged Plaintiff. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1064 [noting that “no liability attaches if the damages sustained were otherwise inevitable or due to unrelated cause.” “If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained.” Ibid.]) Indeed, Plaintiff paid $700,000 in rent during the time it possessed the Property. (Compl. ¶ 1.)

Accordingly, the court SUSTAINS Defendants’ demurrer to the Fourth and Fifth Causes of Action with leave to amend.

Defendants move to strike the following portions of the Complaint pertaining to punitive damages:

· Paragraph 83, 16:27-17:5 – “Defendants’ conduct was intentional and malicious . . . Defendants thus acted with the intention to deceive and defraud Plaintiff and are guilty of fraud, oppression and malice. Plaintiff accordingly also seeks an award of exemplary and punitive damages against Defendants in an amount to be determined at trial.”

· Prayer for Relief, Paragraph 5, lines 9-10 – “As to all applicable causes of action, for punitive and exemplary damages, in an amount according to proof.”

1.Demurrer to the Fourth and Fifth Causes of Action is SUSTAINED with 20 days leave to amend;

[1] Defendants alternatively argue that the Economic Loss Rule applies to these causes of action. The court declines to develop this argument at this time.

[2] The court notes that the only alleged misrepresentation is that the 2019 Buttwinick Trust owned the Property at the time of the lease.