Case Number: BC602085 Hearing Date: May 05, 2016 Dept: 73

5/5/16
Dept. 73
Rafael Ongkeko, Judge presiding

Renaissance, etc. vs. RIF, etc., et al. (BC602085)

Counsel for plaintiff/cross-defendant: Donald Karpel (Zelner & Karpel)
Counsel for defendants/cross-complainants: Saul Reiss; Fay Simab (L.O. Reiss)

DEFENDANTS’ DEMURRER TO COMPLAINT and MOTION TO STRIKE

TENTATIVE RULING

1. The Demurrer to the entire complaint on the basis that Plaintiff improperly named Defendants Farhadi and Ghadir is SUSTAINED with leave to amend. See below for instructions and order re leave to amend.
2. The Demurrer to the fourth cause of action for easement by adverse possession is SUSTAINED without leave.
3. The Demurrer to the sixth cause of action for fraud is SUSTAINED with leave to amend. See below for instructions and order re leave to amend.
4. Defendants’ Motion to Strike is taken off-calendar as moot.

DISCUSSION (Please note: Unfortunately, the court’s tentative ruling website, which is the source of this version, is not able to show certain formatting contained in the original, such as the court’s use of footnotes, boldface, italics, or the underscoring of case citations.)

Re Demurrer:

Issue 1: Fahardi and Ghadir are improperly named in the action.

Defendants Fahardi and Ghadir demur to the entire Complaint on the basis that “Plaintiff has improperly named the individual Defendants Fahardi and Ghadir in its causes of action” because each cause of action relates to a claim against the owner of the Property which is Defendant RIF. (Demurrer, at 4.) The individual Defendants Fahardi and Ghadir are not the owners of the Property and, therefore, have no power or authority regarding the Property and do not claim any personal interest in the Property.

Issue 2: Plaintiff fails to state a claim for easement by adverse possession.
Defendants demur to Plaintiff’s easement by adverse possession claim on the ground that it fails to allege facts sufficient to constitute a cause of action. Specifically, Defendant argues that Plaintiff failed to allege use of the easement for 5 years.

Issue 3: Plaintiff fails to state a claim for fraud
Defendants demur to Plaintiff’s fraud claim in the ground that it fails to plead with particularity the elements of scienter or knowledge of falsity on the part of Defendants. There are also no allegations that Defendants intended to defraud Plaintiff or that they intended to induce Plaintiff’s reliance.

Request for Judicial Notice: The RJN is unopposed. Granted as to the existence of the documents, but not as to hearsay matters asserted for their truth.

ANALYSIS

Demurrer to Entire Complaint- Improperly named Defendants:

The court admonishes plaintiff’s counsel for failing to comply with CRC 2.112. On the face of the complaint, all causes of action are potentially directed against all defendants, something that could easily have been cured by an amendment.
Defendants Fahardi and Ghadir demur to the entire complaint on the basis that they are not the owners of Unit R-1, and each alleged cause of action relates to claims against a property owner. (Demurrer, 4:22-28.) The first, second, third, fifth, and seventh causes of action are claims that relate to the owner of Unit R-1, and not against the members of RIF. The demurrer of Fahardi and Ghadir is sustained without leave to amend as to those causes of action for failure to state a claim as to them.
However, Plaintiff’s fraud cause of action may properly be asserted against the managing members of an LLC. See below discussion of the 6th cause of action. Defendants’ Demurrer to the remaining causes of action alleged against Fahardi and Ghadir is SUSTAINED leave to amend.

Fourth Cause of Action- Easement by Adverse Possession

Defendants demur to Plaintiff’s fourth cause of action for easement by adverse possession on the ground that the Complaint fails to allege the possession of the property for a period of five continuous and uninterrupted years. (Demurrer, 5:4-13.) Plaintiff’s Opposition argues that the easement “was granted in 2007 as alleged in the Complaint and has existed since then.” (Opposition, 6:6-9.)
To state a claim for prescriptive easement, a plaintiff must allege use of the land of another, which use has been (1) open and notorious, (2) hostile to the true owner, (3) under claim of right, and (4) continuous and uninterrupted for five years. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090.)
Thus, Plaintiff’s claim for prescriptive easement must allege sufficient facts showing that the use of the electrical panel was hostile to the true owner and under a “claim of right.” (Id.) Use of property under a “claim of right” means that the claimant’s use for the requisite five-year period occurred without the landowner’s permission. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252.) Similarly, use of land is “hostile” where the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor. (Id.)
Here, the complaint fails to allege sufficient facts showing that the use of electrical panel was hostile and under a claim of right prior to November 23, 2015, when Defendants informed Plaintiff that they were going to cut off power from the electrical panel. (See Complaint, ¶ 32.) The Complaint alleges that in January 2013, Buchanan, acting as an RIF’s agent “agreed that the surgery center could use up to 100 amps from the electrical panel located on the first floor, and that the surgery center would pay for the electricity used by the surgery center and drawn from the first floor electrical panel.” (Id., 22.) Thus, on the face of Plaintiff’s Complaint, Plaintiff fails to establish the second, third, and fourth elements of prescriptive easement.
Accordingly, Defendants’ Demurrer to the fourth cause of action is SUSTAINED without leave to amend.
Sixth Cause of Action – Fraud:

Defendants demur to Plaintiff’s sixth cause of action for fraud on the ground that it fails to state sufficient facts to constitute a cause of action. (Demurrer, 5:7-24.) To plead a cause of action for fraud, one must allege (1) misrepresentation; (2) knowledge of falsity (or “scienter”); (3) intent to defraud (induce reliance); (4) justifiable reliance; and, (5) resulting damage. (Conroy v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) Fraud must be specifically pleaded, which means that a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.) Accordingly, “every element of the cause of action for fraud must be alleged in the proper manner (i. e., factually and specifically), and the policy of liberal construction of the pleadings [] will not ordinarily be invoked to sustain a pleading defective in any material respect. (Lesperance v. North Am. Aviation, Inc. (1963) 217 Cal.App.2d 336, 344.)

Here, the Complaint fails to meet the requisite pleading requirement. First, the Complaint fails to establish that Defendants made a false representation to Plaintiff. Plaintiff alleges that in January 2013, Defendants agreed that “the surgery center could use up to 100 amps from the electrical panel located on the first floor, and that the surgery center would pay for the electrical used by the surgery center and drawn from the first floor electrical panel.” (Complaint, ¶ 22.) As alleged, Plaintiff was permitted to use the electrical panel until November 23, 2015. (Id., ¶ 32.) Thus, Plaintiff failed to support that Defendants’ representation was false at the time the representation was made.

Likewise, the Complaint also alleges that in reliance of this promise, Plaintiff removed the lis pendens on the Defendant’s unit in January 2013. (Id., ¶ 24.) However, Plaintiff pleads that its permission to use the electrical panel was not revoked until November 23, 2015. (Id., ¶ 32.) Therefore, Plaintiff’s Complaint fails to sufficiently allege that Defendant falsely represented that Plaintiff could use the electrical panel at the time the representation was made.

Additionally, the Complaint fails to allege facts supporting the elements of intent to defraud or scienter. As stated above, Defendants gave Plaintiff permission to use the electrical panel for almost 3 years. Furthermore, the Complaint fails to specifically plead that Defendants intended to defraud Plaintiff or that in 2013, Defendants knew that they were going to terminate Plaintiff’s permission to use the electrical panel. Accordingly, Plaintiff’s Complaint fails to state a claim for fraud.

Thus, for the reasons stated above, Defendants’ Demurrer to the sixth cause of action for fraud is SUSTAINED with leave to amend.

Re Motion to Strike

Defendants move to strike each cause of action in their entirety on the grounds that Fahardi and Ghadir were improperly named and to strike Plaintiff’s prayer for punitive damages against all defendants. The motion is moot in light of the court’s grant of leave to amend as to the fraud cause of action. If amended, the complaint should not include an amount in the prayer for punitive damages. Civil Code § 3295(e); Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1472.

Instructions/order re leave to amend and red-line version:
NEW AND AMENDED LEGISLATION REGARDING DEMURRERS AND AMENDED PLEADINGS (EFFECTIVE 1/1/16 THROUGH 1/1/21): All parties and counsel are referred to Code of Civil Procedure §§ 430.41; 472; and 472a regarding, but not limited to, the following areas: pre-demurrer timely meet and confer efforts; declaration re same; limit on the number of amendments permitted; prohibited grounds for demurrer; and the deadline to file an amended pleading without stipulation or leave of court.
Subject to the meet and confer requirement below: Plaintiff is granted leave either to file and serve a writing by MAY 16, 2016 indicating no intent to amend the complaint or to file and serve a FIRST AMENDED COMPLAINT by that date. If plaintiff elects the latter, a red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendant(s). If any defendant intends to file a demurrer to the amended complaint, defendant must lodge directly in Dept. 73 the red-line copy of the amended complaint with its demurrer.
If plaintiff does not intend to amend, defendants’ answer is ordered to be filed and served within 15 days after service of plaintiff’s written notice thereof.
Meet and confer requirement (effective 1/1/16 through 1/1/21): The court orders the parties to meet and confer before the amended complaint (or cross-complaint) or demurrer to the amended complaint (or cross-complaint) is filed.
Any failure to comply with this order by any party may result in an order to show cause why monetary and/or other sanctions should not be imposed.

Unless waived, notice of ruling by moving party.