Case Number: EC062808 Hearing Date: February 13, 2015 Dept: A
Golmohammadi v Benjauthrit

DEMURRER & MOTION TO STRIKE

Calendar: 9
Case No: EC062808
Date: 2/17/15

MP: Defendant, Boonsieng Benjauthrit
RP: Plaintiff, Hamid Golmohammadi

ALLEGATIONS IN FIRST AMENDED COMPLAINT:
The Plaintiff leased commercial property from the Defendant so that the Plaintiff could operate a grocery store, Ararat Deli & Grocery on the premises. The Defendant refused to repair conditions on the premises related to obtaining permits. Further, the Plaintiff discovered a severe rodent infestation. The County of Los Angeles suspended the health permit and directed the grocery store to discontinue operation. Since the Defendant refused to make the necessary repairs, the Plaintiff was forced to close the grocery store.
In addition, the Defendant engaged in conduct to remove the Plaintiff as a tenant by refusing to accept rent and by maliciously filing an unlawful detainer Complaint.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
1) Negligence
2) Breach of Contract
3) Breach of Implied Covenant of Good Faith and Fair Dealing
4) Breach of Implied Covenant of Quiet Enjoyment
5) Fraud – Intentional Misrepresentation
6) Fraud – Negligent Misrepresentation
7) Violation of Business and Professions Code section 17200
8) Constructive Eviction
9) Intentional Infliction of Emotional Distress
10) Unjust Enrichment

RELIEF REQUESTED:
1. Demurrer to fifth, sixth, seventh, and ninth causes of action in First Amended Complaint.
2. Strike fifth, sixth, and ninth causes of action plus claim for punitive damages.

DISCUSSION:
This hearing concerns the Defendant’s demurrer and motion to strike directed at the First Amended Complaint.

1. Demurrer to Fifth Cause of Action for Fraud and to Sixth Cause of Action for Negligent Misrepresentation
The Defendant argues that these causes of action lack the particular facts needed to plead causes of action based on torts of deceit. The fifth cause of action for fraud must include the following elements:

1) a representation, usually of fact, which is false;
2) knowledge of its falsity;
3) intent to defraud;
4) justifiable reliance upon the misrepresentation; and
5) damage resulting from that justifiable reliance
Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.

The sixth cause of action for negligent misrepresentation must include the following elements:

1) a misrepresentation of a past or existing material fact;
2) without reasonable grounds for believing it to be true;
3) with intent to induce another’s reliance on the fact misrepresented;
4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed; and
5) damages.
B.L.M. v. Sabo & Deitsch (1997) 55 Cal. App. 4th 823, 834.

These causes of action are torts of deceit and the facts constituting each element must be alleged with particularity; the claims cannot be saved by referring to the policy favoring liberal construction of pleadings. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Since the claims must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. In addition, pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.

The Plaintiff’s fifth and sixth causes of action lack this required particularity regarding any of the essential elements. The Plaintiff alleges in paragraphs 54 and 61 that the Defendant made false representations regarding the condition of the premises. There are no allegations that identify the particular representation that was made, i.e., the content or a paraphrase of the representation tendered by Defendant. There are no particular allegations that identify how, when, where, or by what means a false representation was tendered. This is insufficient to plead the element of a false representation in the fifth and sixth causes of action.
There are no particular allegations that plead that the manner by which the Defendant knew that the unidentified representations were false or that he made them without reasonable grounds for believing them to be true. Instead, the Plaintiff alleges a conclusion: that the Defendant knew that the representations were false. This is insufficient to plead that the Defendant knew that the representations were false or that he made them without reasonable grounds for believing them to be true.
The Plaintiff alleges the conclusion that he justifiably relied upon the representations. There are no particular allegations identifying that his reliance was justified. Since the allegations in these causes of action are conclusions as opposed to the particular, supporting facts needed to plead torts of deceit, there are grounds to sustain demurrers to the fifth and sixth causes of action.

In his opposition, the Plaintiff argues that these allegations are in other parts of his Complaint. This indicates that the Plaintiff is incorporating the particular facts necessary to these causes of action from other parts of the Complaint. This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant is required to search the pleadings in order to determine whether the Plaintiff has pleaded the particular facts needed to state the intentional or negligent representation causes of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.

Therefore, the Court will sustain the demurrers to the fifth and sixth causes of action. Since it appears reasonably possible to correct the defects by adding the particular allegations needed to plead these claims, the Court will grant leave to amend.

2. Demurrer to Seventh Cause of Action for Violation of Business and Professions Code section 17200
The Defendant argues that the Plaintiff cannot obtain an injunction for any conduct that violates Business and Professions Code section 17200 because the Plaintiff admits that he closed the grocery store. However, an injunction is not the only remedy that the Plaintiff may obtain under this claim.
Under a Business and Professions Code section 17200 claim, a private plaintiff is authorized under Business and Professions Code section 17203 to recover the remedies of an injunction or restitution. Indus. Indem. Co. v. Superior Court (1989) 209 Cal. App. 3d 1093, 1096. The language of section 17203 is clear that the equitable powers of a court are to be used to “prevent” practices that constitute unfair competition, i.e., issue an injunction, and to “restore to any person in interest” any money or property acquired through unfair practices, i.e., order that restitution be made. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1147-1148. The remedy of restitution compels the defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken. Id. at 1144-1145.
In the pending case, the Plaintiff claims in his seventh cause of action that the Defendant engaged in unlawful business practices that violated Building and Safety Code sections that apply to copper piping, damaged ceiling tiles, rodent infestations, and vermin infestations. In paragraph 68, the Plaintiff alleges that as a result of the unlawful business practices, the County of Los Angeles shut down the grocery store and suspended its health permit because the conditions on the property created a health risk to public consumers. In paragraph 69, the Plaintiff seeks the statutory “damages” authorized under Business and Professions Code section 17200 et seq. This indicates that the Plaintiff is seeking the remedy of restitution to compel the Defendant to return the money he obtained through the alleged unfair business practices from the Plaintiff, e.g., the rent payments that the Plaintiff made to the Defendant..

Therefore, the Court will overrule the demurrer to the seventh cause of action because the demurrer does not identify any defect in the seventh cause of action.

3. Demurrer to Ninth Cause of Action for Intentional Infliction of Emotional Distress
The Defendant argues that this cause of action does not plead that the Defendant engaged in any outrageous conduct. The elements of the tort of intentional infliction of emotional distress are the following:

1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;
2) the plaintiff’s suffering severe or extreme emotional distress; and
3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Id.
In the context of a tenant’s claim against a landlord, California law finds that a tenant states a cause of action for intentional infliction of emotional distress by alleging that the tenant suffered extreme emotional distress as a result of the landlord’s knowing, intentional, and willful failure to correct defective conditions of the premises. Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 921. Whether the failure to act was extreme and outrageous presents a factual question and cannot be resolved through a demurrer. Id. In Stoiber, the tenant claimed that the defendant had failed to repair numerous defective and dangerous conditions, including leaking sewage from the bathroom plumbing, defective and dangerous electrical wiring, structural weaknesses in the walls, deteriorated flooring, falling ceiling, leaking roof, dilapidated doors, broken windows, and other unsafe and dangerous conditions. Id. at 912.

The Plaintiff’s cause of action does not plead any facts. Instead, it pleads only conclusions, e.g., the allegation in paragraph 74 that the conduct was outrageous. This is insufficient.

In his opposition, the Plaintiff argues that these allegations are in other parts of his Complaint. This indicates that the Plaintiff is incorporating the facts necessary to this cause of action from other parts of the Complaint. This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant is required to search the pleadings in order to determine whether the Plaintiff has pleaded the facts needed to state the cause of action for intentional infliction of emotional distress. Instead, the essential elements of the cause of action must be pleaded within the cause of action.

Therefore, the Court will sustain the demurrers to the ninth cause of action. Since it appears reasonably possible to correct the defects by adding the allegations needed to plead this cause of action, the Court will grant leave to amend.

4. Motion to Strike
The Defendant requests that the Court strike the fifth, sixth, and ninth causes of action. In addition, the Defendant requests that the Court strike the word “malicious” from the ninth cause of action. In light of the recommendation that the Court sustain the demurrers to the fifth, sixth, and ninth causes of action, these portions of the First Amended Complaint will be removed by demurrer and the Defendant’s request to strike these portions is moot.

The Defendant then requests that the Court strike the allegations in paragraph 47 that the Plaintiff is entitled to punitive damages. This claim for punitive damages is made within the third cause of action for breach of the implied covenant of good faith and fair dealing.
Under California law, California law authorizes the award of tort damages such as punitive damages for the breaches of the covenant of good faith and fair dealing only in insurance contracts. Erlich v. Menezes (1999) 21 Cal. 4th 543, 551. This case does not involve an insurance contract. Accordingly, the Court will strike paragraph 47 without leave to amend because it is not possible to correct this defect.

Finally, the Defendant requests that the Court strike the claim for punitive damages from the prayer for relief. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. Specific factual allegations are required to support a claim for punitive damages. Id.
A review of the First Amended Complaint reveals that, after the demurrers to the fifth, sixth, and ninth causes of action are sustained and the request for punitive damages in the third cause of action is removed, there are no remaining allegations in the First Amended Complaint that show that the Plaintiff is entitled to an award of punitive damages. Accordingly, the Court will strike the claim for punitive damages from the prayer for relief. The Court will grant leave to amend because the Plaintiff may be able to correct the defects in his claims based on fraud and an intentional tort.

Therefore, the Court will grant the Defendant’s motion to strike with regards to the request to strike paragraph 47 without leave to amend and the claim for punitive damages in the prayer for relief with leave to amend. The Court will deny the balance of the motion to strike as moot.

RULING:
Sustain demurrers to fifth, sixth, and ninth causes of action with leave to amend.
Overrule demurrer to seventh cause of action.

Strike paragraph 47 without leave to amend.
Strike claim for punitive damages in the prayer for relief with leave to amend.
Deny balance of motion to strike as moot.