Judge: Wesley L. Hsu, Case: 22PSCV01755, Date: 2023-04-25 Tentative Ruling

Case Number: 22PSCV01755    Hearing Date: April 25, 2023    Dept: L

1. Defendants Genitrix Georges and Prager Metis CPA’s, LLC’s Demurrer to Plaintiffs’

First Amended Complaint is SUSTAINED, with 20 days’ leave given to amend.

 

2. Defendants Genitrix Georges and Prager Metis CPA’s, LLC’s Motion to Strike Portions

of Plaintiffs’ First Amended Complaint is DENIED as MOOT.

 

Background   

 

Plaintiffs Joy Yin and Seong Lee (together, “Plaintiffs”) allege as follows: Plaintiffs jointly own the residential property located at 2226 Calle Lista, San Dimas, CA 91773 (“subject property”). On May 24, 2021, Plaintiffs, as landlords, entered into a one-year residential lease agreement (“Lease”) pertaining to the subject property beginning June 1, 2021 with Defendants Nicholas Simmons (“Nicholas”) and Cathy Simmons (“Cathy”), as tenants. Per the Lease, Prager Metis CPAs (“Prager”), including Gentrix Gorges (“Gorges”), was to serve as the property manager. After the Lease term ended, Nicholas and Cathy began a month-to-month tenancy at the subject property. On August 17, 2022, August 31, 2022, September 1, 2022 and September 10, 2022, Plaintiffs conducted walkthroughs of the subject property and became aware of extensive damage to same. On September 11, 2022, Nicholas and Cathy moved out of the subject property. On February 6, 2023, Nicholas returned to the subject property and vandalized it.

 

On February 10, 2023, Plaintiffs filed a First Amended Complaint, asserting causes of action against Nicholas, Cathy, Genitrix and Prager for:

 

1.      Injury to Real Property

2.      Breach of Contract

3.      Fraud

 

A Case Management Conference is set for April 25, 2023.

 

1. Demurrer

 

Legal Standard

 

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

 

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. 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 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

 

Discussion

 

Genitrix and Prager demur, per Code of Civil Procedure §§ 430.10, subdivisions (e) and (f), to the first through third causes of action in Plaintiffs’ FAC, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.

 

Merits

 

At the outset, the court notes that Plaintiffs’ opposition makes repeated reference to facts and allegations which are extrinsic to the face of the FAC, which is improper on demurrer. The court declines to consider same.

 

First and Second Causes of Action (i.e., Injury to Real Property and Breach of Contract, Respectively)

 

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “’A written contract may be pleaded either by its terms—set out verbatim in the complaint

 

or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

 

Plaintiffs have alleged, in the first cause of action, that “[a]s tenants of the Property, Defendants had a duty not to damage the Property as reflected in Provision 11 of the Lease. . .,” that Defendants breached this duty by allowing or causing extensive damage to the property and that, per the Lease, Defendants are responsible for “‘all repairs or replacements caused by the Tenant, pets, guests or Licensees of the Tenant.’”  (FAC, ¶¶ 22-24). The first cause of action, entitled “Injury to Real Property,” appears to be a breach of contract claim.

 

Plaintiff have alleged, in the second cause of action, that Defendants entered into the Lease and subsequent month-to-month tenants with Plaintiffs on June 1, 2021 and June 1, 2022 respectively, that Defendants agreed to the terms and conditions therein and that Prager, including Georges, was to serve as the property manager, that Defendants breached the Lease by improperly using the property and failing to safeguard the property, that “Defendant Property Manager” failed to carry out those duties regarding the property and that Plaintiffs sustained damages. (Id., ¶¶ 27, 29 and 31). The second cause of action is entitled “Breach of Contract.”

 

Genitrix and Prager point out that Plaintiffs have attached a lease agreement for the term of June 1, 2019-May 31, 2020 as Exhibit A to their FAC; however, as identified above, the FAC is based on a lease agreement having a term of June 1, 2021-May 31, 2022. Plaintiffs, then, have attached the wrong contract. Genitrix’s and Prager’s demurrer to the first and second causes of action is sustained on this basis.

 

Third Cause of Action (Intentional Misrepresentation/Fraud)

 

“The essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) “Fraud must be pleaded with specificity…[t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782 [emphasis in original].) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [emphasis in original; internal quotations and citation omitted].)

 

Plaintiffs have alleged that Genitrix misrepresented her own, as well as Prager’s, professional credentials in Paragraph 48 of the Lease (FAC, ¶ 35). Again, Plaintiffs have attached the wrong contract. Genitrix’s and Prager’s demurrer to the third cause of action is sustained on this basis.

 

Proposed Second Amended Complaint

 

The court will allow Plaintiffs 20 days’ leave to amend their complaint. Plaintiffs, however, are not given permission to file their proposed Second Amended Complaint attached to their opposition, inasmuch as it seeks to add an entirely new cause of action (i.e. for Trespass) without first seeking leave of court.

 

2. Motion to Strike

 

Based upon the ruling made on the demurrer, Genitrix’s and Prager’s motion to strike is denied as moot.