2018-00240803-CU-TT

Isibhakhomen A. Shaka-Momodu vs. FPI Management, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Baldwin, Kathryne E.

Defendant FPI Management, Inc.’s unopposed demurrer to self-represented Plaintiff Isibhakhomen Shaka-Momodu’s complaint is sustained with leave to amend.

In this action, Plaintiff filed a form complaint alleging causes of action for general negligence and intentional tort in connection with allegations that she suffered injuries as a result of a HVAC system in her apartment unit that caused a water leak which led to water intrusion. She alleges that mold then developed which made her sick. She alleges that she asked “defendants” to relocate her so they could do repairs and mold remediation but they would only do so if she signed a Mutual Release Agreement which she refused to sign. Plaintiff does not make any allegations regarding her relationship with Defendant.

The demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) The complaint is also uncertain as to demurring Defendant. (CCP § 430.10(f).) The essential elements necessary to state a cause of action for negligence are (1) duty, (2) breach, (3) causation, and (4) damages. (See Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 57.) As to the first cause of action for negligence, for example, there are no allegations regarding Plaintiff’s relationship with Defendant which would suffice to impose a duty on Defendant. With respect to the second cause of action for “intentional tort”, there are no facts alleging that Defendant engaged in any intentional conduct for the purposes of harming Plaintiff.

Further, while Plaintiff also alleges that she had a “contract with Defendants which defendants breached,” it is unclear whether she intended to allege a separate breach of contract cause of action as she included that allegation in the context of her negligence claim on the form complaint. The elements of a breach of contract cause of action are “(1) the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” ( Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1005.) To the extent she sought to allege a breach of contract cause of action, however, it is deficient as she failed to attach a copy of the contract or allege the terms of any contract, or how Defendant breached it.

The demurrer is sustained for the reasons stated in Defendant’s memorandum of points and authorities. The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Nevertheless, as this is the first challenge to the complaint, leave to amend is granted.

Plaintiff may file and serve an amended complaint no later than April 2, 2019. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP 430.41 extension if necessary.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.