Case Number: KC066774 Hearing Date: August 04, 2015 Dept: O
Wang v. Pearl of the East RTC, LP, et al. (KC066774)
Consolidated w/ lead case: Davis v. Pearl of the East RTC, LP, et al. (KC066761)

1-2. Defendants Olisan, Inc. and Rowland Heights Mobile Estates, LP’s DEMURRER TO THE [THIRD] AMENDED COMPLAINT and MOTION TO STRIKE

Respondent: Plaintiff Wang

TENTATIVE RULING

Defendants Olisan, Inc. and Rowland Heights Mobile Estates, LP’s demurrer to the [third] amended complaint is OVERRULED as to the 2nd – 3rd, and 6th causes of action, and SUSTAINED with 10 days leave to amend as to the 4th – 5th causes of action. Motion to strike punitive damages and attorney’s fees is DENIED. Motion to strike improper allegations is MOOT in light of the court’s grant to leave to amend.

[Subsequent to the filing of Defendants’ demurrer to the SAC, this court granted Plaintiff leave to file a TAC. Because the allegations against RHME/Olisan in the SAC are virtually identical to the allegations against RHME/Olisan in the TAC, this court will proceed with Defendants’ demurrer as if it was directed against the TAC.]

This court critically notes that Plaintiff improperly added causes of action without leave to amend. However, because Plaintiff has indicated “some valid” claims against these Defendants, in the interest of justice, this court will consider the arguments. (Quelimane Co.m Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 28 – If the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.)

2nd CAUSE OF ACTION: INJUNCTIVE RELIEF:

Although injunction is not an independent cause of action, plaintiff is entitled to pray for its relief. The Clerk is ordered to strike the title, “2nd Cause of Action Request for Injunctive Relief” by interlineation, and incorporate Pars. 42-46 into the general allegations. As amended, demurrer is OVERRULED.

3rd CAUSE OF ACTION: FRAUD:
The elements are: 1) misrepresentation (false representation, concealment, or nondisclosure); 2) knowledge of falsity (scienter); 3) intent to defraud or induce reliance; 4) justifiable reliance; and 5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Pars. 26-27 allege that defendants represented that the Park is in an R-3 zone. Par. 29 alleges that defendant never disclosed to plaintiff that the spaces along the boundary wall are in a C-3 zone. Par. 27 alleges reliance. Pars. 49-53 allege scienter and intent to defraud. The allegations are sufficiently specific. Demurrer is OVERRULED.

4th – 5th CAUSES OF ACTION: PREMISES LIABILITY and NEGLIGENCE:
Par. 17 complains that the boundary wall height “on the construction side is reduced to only 3.5 feet in height.” This allegation fails to allege any breach of duty. RHME/Olisan does not own or control the property on the “construction side” of the boundary wall.

Plaintiff alleges that RHME/Olisan did not protect residents from trespassers. Pars. 18-20 allege that trespassers jumped the boundary wall behind Spaces 58, 59, 60, and 61. However, Plaintiff is a resident of Space 93. Trespassing behind “other spaces,” is irrelevant to this particular Plaintiff. Additionally, plaintiff does not allege any harm to the plaintiff or plaintiff’s property.

Par. 30d also alleges that RHME/Olisan failed to give notice of the public hearings, but Plaintiff failed to allege where RHME/Olisan derived such duty, i.e. statutory or contractual?

Accordingly, demurrer is SUSTAINED with 10 days leave to amend the “notice” claims.

6th CAUSE OF ACTION: BREACH OF CONTRACT/QUIET ENJOYMENT:
It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. (CC 1463; Petroleum Collection Services, Inc. v. Swords (1975) 48 Cal. App. 3d 841, 846.) Initially, the covenant related solely to the right of possession and only protected the lessee against any act of molestation committed by the landlord or anyone claiming under him, or by someone with paramount title, which directly affected the tenant’s use and possession of the leased premises; the covenant was construed to protect the lessee against physical interference only. (Id.) However, the covenant of quiet enjoyment has been expanded to insulate the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. (Id.) Under this view, the landlord’s failure to fulfill an obligation to repair or to replace an essential structure or to provide a necessary service can result in a breach of the covenant if the failure substantially affects the tenant’s beneficial enjoyment of the premises. (Id.)

Pars. 73-75 allege that Defendant violated Plaintiff’s quiet enjoyment, resulting in damages. Demurrer is OVERRULED.

Motion to strike punitive damages is DENIED. The fraud claim is sufficiently pled. Motion to strike attorney’s fees is DENIED. Prayer 7(1) prays for costs of suit, not attorney’s fees. Motion to strike improper allegations is MOOT in light of the court’s grant to leave to amend.