Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Rachel Levi et al vs Astrid Nelson et al
Case No: 18CV01559
Hearing Date: Fri Oct 25, 2019 9:30

Nature of Proceedings: Demurrer to Plaintiff’s Third Amended Complaint

TENTATIVE RULING: Defendant Beverly Hills’s demurrer to plaintiff’s eighth cause of action for negligence is sustained without leave to amend.

BACKGROUND:

This action concerns a residential lease agreement. On October 1, 2016, plaintiff Chris White (“White”) entered into a month-to-month lease of real property located at 726 W. Pedregosa Street, Santa Barbara, California. The owners of the property are defendants Astrid Nelson, individually and as trustee of the Westside Irrevocable Trust, and Clifford Nelson (together, “Nelson”). Defendant Santa Barbara Apartment Association, Inc. (“SBAA”) is a professional group of landlords and attorneys who created the form lease used in this matter. Defendant Beverly Hills (“Hills”) is a member of SBAA and the person who provided the form lease to Nelson for use in leasing the subject property to plaintiff.

On February 20, 2018, the subject premises were found to be in violation of the Health & Safety Code and Nelson was served with an order to abate the violations. The order also mandated that White vacate the premises, which he did. On September 26, 2019, plaintiff filed his third amended complaint, the operative pleading, for (1) breach of contract, (2) fraud, (3) negligence, (4) breach of warranty of habitability and health and safety code, (5) violation of the Consumer Legal Remedies Act (Civ. Code §1750 et seq.), (6) violation of the Unfair Business Practices Act (Bus. & Prof. Code §17200 et seq.), (7) class action for declaratory relief and injunctive relief, and (8) negligence (defendant Hills only). Plaintiff alleges that Nelson breached the lease agreement by failing to provide a residential unit that was habitable. Plaintiff also alleges that the lease contains unlawful and unenforceable provisions that purport to waive the right to a jury and owner liability.

Defendant Hills now demurs to the eighth cause of action for negligence on the grounds that it fails to state facts sufficient to constitute a cause and action and is uncertain. Plaintiff opposes the demurrer.

ANALYSIS:

The grounds for demurrer are set forth in Code of Civil Procedure Section 430.10, which provides, in relevant part:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300. The court assumes the truth of all allegations in the complaint that have been properly pleaded, but not contentions, deductions, or conclusions of fact or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827. The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts in the complaint. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.

Plaintiff alleges a single cause of action for negligence against Hills. To state a cause of action for negligence, the plaintiff must allege (1) the defendant owed the plaintiff a legal duty to use due care, (2) the defendant breached the duty, and (3) the breach was the proximate cause of the injuries suffered by the plaintiff. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673. Thus, a legal duty of care is a required element of a negligence claim. In determining whether a legal duty of care is owed in a particular case, the courts employ a checklist of factors, including “the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” Biakanja v. Irving (1958) 49 Cal.2d 647, 650.

Hills contends that plaintiff’s eighth cause of action fails because none of the facts alleged support the existence of a legal duty of care owed by her to plaintiff. The court agrees. Plaintiff merely alleges that Hills is a member of SBAA and the person who provided the form lease to Nelson (TAC, ¶4), that Hills was without authority to do so as the form lease was for members’ use only (TAC, ¶67), that Hills had a duty to refrain from giving the lease form to persons who were not members of SBAA (TAC, ¶68), that in providing the lease form to Nelson, Hills gave plaintiff the impression that Nelson was a member of SBAA and knowledgeable about habitability issues (TAC, ¶67), that plaintiff relied upon such representations in signing the lease form (TAC, ¶67), and that plaintiff was injured due to the fact that the subject residence was uninhabitable (TAC, ¶70). None of these allegations establishes that Hills owed a duty of care to plaintiff. If Hills owed a duty to anyone regarding use of the lease form, it would have been to other members of SBAA, not plaintiff. Further, the court finds no logical connection between the lease form and the habitability issues.

Plaintiff alleges that the lease form, which was drafted by SBAA, contains terms that are illegal and unenforceable in California because it purportedly waives the right to a jury and owner liability. (TAC, ¶¶ 59, 60, 70.) However, plaintiff does not allege that the purportedly illegal provisions were ever enforced against him or that he suffered any actual, measurable damages because of the provisions. Accordingly, the damages element is missing.

In his opposition, plaintiff argues that the demurrer is untimely and that defense counsel failed to meet and confer. The demurrer, however, is supported by the declaration of Christopher G. Kerr, counsel for Hills. Mr. Kerr states that on August 23, 2019, he telephoned plaintiff’s counsel to discuss a potential demurrer to the TAC, but he was unable to reach counsel and he never received a return call. (Kerr Dec., ¶3.) Regarding the timeliness issue, although Hills was served with the TAC on August 1, 2019 (Bochner Dec., ¶2, Ex. A), Hills could not reasonably have demurred to the complaint until it was filed with the court. The TAC was filed on September 26, 2019 and Hills’s demurrer was filed on September 27, 2019, just one day later.

Based on the foregoing, the court will sustain Hills’s demurrer to plaintiff’s eighth cause of action for negligence without leave to amend. “If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.” Hendy v. Losse (1991) 54 Cal.3d 723, 742; see also, McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792 (“the plaintiff [has the burden] to show what facts he or she could plead to cure the existing defects in the complaint”). Here, plaintiff has not made any attempt to explain how he might amend his TAC to state a cause of action for negligence against Hills.