Case Number: EC060312    Hearing Date: September 12, 2014    Dept: NCD

TENTATIVE RULING (9-12-14)
#2
EC 060312
MOVSESYAN v. HSU

Defendant Susan Sieh-Chu’s Demurrer to Plaintiff’s First Amended Complaint
Defendants Martha Sieh-Yu Hsu and Susan Sieh-Chu’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

TENTATIVE:
Plaintiff’s Request for Judicial Notice is DENIED.

Demurrer is OVERRULED.

Motion to Strike is DENIED.

Ten days to answer.

CAUSES OF ACTION: from First Amended Complaint
1) Breach of Written Contract
2) Negligence
3) Premises Liability
4) Negligence Per Se
5) Nuisance

SUMMARY OF FACTS:
Plaintiff Tamara Movsesyan brings this action against her residential landlords, defendants Martha Sieh-Yu Hsu and Susan Sieh-Chu Hsu, alleging that during her tenancy she discovered mold and mildew infestation, which defendants failed to remedy.

Moving defendants filed a demurrer in response to the original complaint, which was taken off calendar as moot upon the filing of the First Amended Complaint.

ANALYSIS:
First Cause of Action—Breach of Written Contract
Defendant Susan Sieh-Yu Hsu brings this demurrer arguing that it is clear from the lease attached to the pleading that she is not a party to the subject contract.

As an initial matter, the court’s copy of the FAC does not include exhibits. Accordingly, the clear allegations of the complaint that the lease was entered into by both defendants is not contradicted by anything from the face of the pleading.

The exhibits are attached to the original complaint. Exhibit 1 is the Residential Lease, which is signed by Martha Hsu as “Landlord (Owner or Agent with authority to enter this Agreement).”

It is held that where an incorporated written instrument is the foundation of a cause of action, its recitals may serve as a substitute for direct allegations ordinarily essential to the pleading. Lambert v. Haskell (1889) 80 Cal. 611. Where these recitals are contrary to allegations in the pleading, the recitals will be given precedence, and the pleader’s inconsistent allegations as to the meaning and effect of an unambiguous document will be disregarded. Stoddard v. Treadwell (1864) 26 Cal. 294, 303; See also Witkin, Cal.Proc.4th 4 Pleading section 392; Mission Oaks Ranch, Ltd. v. Santa Barbara (1998) 65 Cal.App.4th 713, 719 (disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1123 n.10).

Here, the document does not contradict the facts alleged that Susan is a “beneficially interested owner” of the subject property, so a party to the Lease. [See Paras. 3, 5, 6]. Martha Hsu may well have been signing as an “agent with authority to enter” the agreement as expressly stated on the contract, on the part of all owners, including Susan. The demurrer is therefore overruled.

Motion to Strike
The court has received from plaintiff a conformed copy of an opposition filed and served on June 20, 2014, which has been considered by the court, particularly as the hearing has been continued.

The motion to strike argues that the original complaint included causes of action for violation of the Unruh Act and Elder Abuse, which have been dropped from the First Amended Complaint, but that the FAC continues to include allegations such as that plaintiff is part of a protected class, and is an elder and disabled individual. The argument is that these allegations are now irrelevant.

The opposition argues that these facts are pleaded to establish that plaintiff, due to her age and disability, was more susceptible to injury. From a review of the complaint, it does appear that these facts are alleged to show the landlords’ knowledge and plaintiff’s actual susceptibility to harm from mold infestation, so her physical condition and age remain relevant to the action. Accordingly, the motion to strike is denied.

Defendant Susan Sieh-Chu Hsu further argues that the allegations and prayer for attorneys’ fees as to her should be stricken, as it is clear she is not a party to the contract under which attorneys’ fees are sought. As discussed above, it is not clear from the pleading that this defendant is not a party to the contract, including its attorneys’ fees provision, and the motion is therefore denied.