Case Number: KC066126 Hearing Date: May 21, 2014 Dept: O

Well and Fit Adult Day Health Care, Inc. v. Trisea, LLC, et al. (KC066126)

1. Defendants Trisea, LLC and BTY Properties, LLC’s DEMURRER TO PLAINTIFF’S VERIFIED SECOND AMENDED COMPLAINT

Respondent: Plaintiff Well and Fit Adult Day Health Care, Inc.

2. Plaintiff Well and Fit Adult Day Health Care, Inc.’s MOTION FOR CONTINUANCE OF TRIAL DATE

Respondent: NO OPPOSITION

TENTATIVE RULING

1. Demurrer

Defendants Trisea, LLC and BTY Properties, LLC’s demurrer to plaintiff’s verified second amended complaint is OVERRULED. Defendants are ordered to file and serve their Answers within 10 days.

1ST CAUSE OF ACTION: COMMON COUNT FOR GOODS AND SERVICES RECEIVED:
The elements are: Defendant indebted to plaintiff; in a certain amount; and goods sold and delivered to defendant. (E.g., Johnson v. Dixon Farms Co. (1915) 29 Cal. App. 52, 53-55.)

Pars. 7, 22-31 alleges that Plaintiff installed a fire alarm system for the leased premises only. On 6/23/10, plaintiff discovered the fire alarm system covered the entire Plaza in a common area outside the premises. Defendants represented that plaintiff would be reimbursed but never paid the amount the parties agreed to. The allegations are sufficient. Demurrer is OVERRULED.

2ND CAUSE OF ACTION: INTENTIONAL INTERFERENCE WITH CONTRACT:
The elements are: 1) Valid contract between plaintiff and third party; 2) defendant’s knowledge of that; 3) defendant’s intentional acts designed to induce disruption of the relationship; 4) actual disruption; and 5) resulting damage. (Reeves v. Hanlon (2004) 33 Cal. 4th 1140, 1148; Scripps Clinic v. Superior Court (2003) 108 Cal. App. 4th 917, 929.)

Pars. 7-12 alleges that Plaintiff installed a fire alarm system with ERS. Par. 48 alleges Defendants’ knowledge of the contract. Pars. 23 and 30 allege that BTY contacted and requested ERS to transfer ownership of the fire alarm system to itself by informing ERS that Plaintiff could not be located. Pars. 51-53 allege Plaintiff’s damages.

Defendants contend that the Lease allows Defendants to “elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utilities Installations.” (Lease, Par. 7.4a(a).) However, nothing in on the face of the SAC alleges that Defendants exercised their election “in writing” to transfer ownership. Demurrer is OVERRULED.

3rd CAUSE OF ACTION: BREACH OF CONTRACT:
The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct. (CCP 430.10(g).)

Par. 54 alleges that Defendants represented that they would pay Plaintiff $18,055.00 for installation of the fire alarm system. Par. 55 alleges Plaintiff’s performance. Par. 56 alleges Defendant’s breach, i.e. refusal to pay the sum agreed. Par. 57 alleges resulting damages. Defendants contend that the contract lacks consideration because notifications are mandated by law. However, Plaintiff appears to be alleging that it undertook a management role over the fire alarm system, which it did not have to if the system was owned by Defendants. Regardless, Par. 55 also alleges that Plaintiff agreed to resolve any contracts and monitoring fees already paid to ERS, which is another basis for consideration. Demurrer is OVERRULED.

4th CAUSE OF ACTION: FRAUD:
The elements of fraud 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. 22-23 and 59-66 allege that Defendants concealed the transfer of the fire alarm system, and once discovered, represented that the transfer was a mistake, to induce plaintiff into believing that defendants would pay $18,055.00 to plaintiff, which defendants never did. The representation also caused plaintiff to execute the SNDA and estoppel certificate without any objections, allowing defendants to receive $11,200,000.00 unjustly. Par. 67 alleges damages. The allegations are sufficiently specific. Demurrer is OVERRULED.

5th – 6th CAUSES OF ACTION: CONVERSION and TRESPASS TO CHATTELS:
The elements for a cause of action for conversion are: 1) Plaintiff’s ownership or right to possession of personal property; 2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and 3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, *5 – money cannot be the subject of a cause of action for conversion unless there is an identifiable sum; Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1072; Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451.) The elements for a cause of action for trespass to chattels are: intentional interference; with the possession of personal property; and caused injury. (Intel Corp. v. Hamidi (2003) 30 Cal. 4th 1342, 1350-1351.)

Defendants claim that conversion and trespass to chattels are duplicative of the Negligence claim. However, Plaintiff may state multiple legal theories upon which recovery might be predicated for one claim for relief. (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal. App. 4th 334, 351.) Defendants’ wrongful act was when they retained MJM to disable and rewire plaintiff’s fire alarm system and installed another fire alarm system. (SAC, Pars. 71-82.)

7th CAUSE OF ACTION: NEGLIGENCE:
In order to prevail in a negligence action, plaintiffs must show that defendants owed them a legal duty, that defendants breached that duty, and that the breach proximately caused their injuries. (Wiener v. south Coast Child Care Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

Par. 84 alleges Defendant’s duty. Par. 86 alleges breach. Par. 88 alleges resulting damages. Demurrer is OVERRULED.

2. Motion to Continue Trial

Plaintiff Well and Fit Adult Day Health Care, Inc.’s motion for continuance of trial date is GRANTED. Discovery cut-off will be based on the new trial date.

A motion to continue trial is a disfavored motion. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (CRC 3.1332.) However, the court may grant a continuance only upon an affirmative showing of good cause. “The court must look beyond the limited facts which cause a litigant to request a last-minute continuance and consider the degree of diligence his or her efforts to bring the case to trial, including participating in earlier court hearings, conducting discovery, and preparing for trial.” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, citing to Link v. Cater (1998) 60 Cal.App.4th 1315, 1324-1325.)

Good cause exists to continue trial to allow Plaintiff to retain substitute counsel. Motion is GRANTED. Discovery cut-off will be based on the new trial date.