Case Number: 19STCV13678 Hearing Date: January 21, 2020 Dept: 28

Demurrer without a Motion to Strike

Having considered the demurring papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On April 19, 2019, Plaintiffs Rashyn Reynolds, Army Riddlespringer, by and through guardian ad litem Rashyn Reynolds, and Alain Cook, by and through guardian ad litem Rashyn Reynolds, (“Plaintiffs”) filed a complaint against Defendant AHM Resicom, LLC (“Defendant”). The complaint alleges premises liability for a gas leak and injuries to Plaintiff Cook’s left forearm from window glass breaking, both of which occurring between January 18, 2018 and May 15, 2018.

On September 6, 2019, Plaintiffs filed a first amended complaint.

On October 18, 2019, Plaintiffs filed a second amended complaint (“SAC”).

On December 20, 2019, Defendant filed a demurrer to the SAC pursuant to California Code of Civil Procedure section 430.10.

Trial is set for March 5, 2020.

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PARTY’S REQUEST

Defendant asks the Court to sustain its demurrer to the SAC because insufficient facts have been alleged to state a cause of action, the SAC is uncertain, and Plaintiffs Army Riddlespringer and Alain Cook lack capacity to sue.

LEGAL STANDARD

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (citation omitted).)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (See Code of Civ. Proc. § 430.41.)

DISCUSSION

Judicial Notice

The Court takes judicial notice of its own docket pursuant to California Evidence Code section 452, subdivision (d). The docket there is no pending application for an appointment of a guardian ad litem for Plaintiffs Riddlespringer and Cook and all previous applications have been rejected.

Meet and Confer

The Court finds that Defendant has filed a sufficient meet and confer declaration. (Gardner Decl., ¶ 3.)

Demurrer – Capacity

Minor’s and persons without legal capacity to make decisions lack capacity to sue and must litigate an action through guardian, or another similarly situated representative. (Code Civ. Proc. § 372, subd. (a).

Plaintiffs state in the caption of the initially filed complaint that Plaintiff Riddlespriger is a minor and Plaintiff Cook is an incompetent person, and that both of them are suing by and through their guardian ad litem Rashyn Reynolds. The SAC does not mention that Plaintiff Cook is an incompetent person. The Court takes notice of the more specific fact alleged in the initial complaint that Plaintiff Cook is an incompetent person. (See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-1236.)

After taking judicial notice of the Court’s own filings, it appears that there is no pending application for an appointment of a guardian ad litem for either Plaintiff Riddlespinger or Plaintiff Cook. Similarly, there is no order appointing such a guardian ad litem. Accordingly, the Court finds Plaintiffs Riddlespriger and Cook lack capacity to sue.

Fraud

“The elements of [intentional] fraud . . . are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 (quotations and citation omitted).) A plaintiff must bring a cause of action for intentional fraud within three years of when the plaintiff either discovers or should have discovered the facts giving rise to the cause of action for intentional fraud. (Code Civ. Proc. § 338, subd. (d); Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-809.)

For a negligent misrepresentation, a plaintiff must prove there has been (1) a “misrepresentation¿of a past or existing material fact, without reasonable ground for believing it to be true, and with the intent to induce another’s reliance on the fact misrepresented;” (2) “ignorance of the truth;” (3) justifiable reliance on the misrepresentation by the party to whom it was directed;” and (4) “resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154 (quotations and citation omitted).) A plaintiff must bring a cause of action for a negligent misrepresentation within two years of when the plaintiff either discovers or should have discovered the facts giving rise to the cause of action for the negligent misrepresentation. (E-Fab Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1317-1319.)

The SAC alleges the following. Defendant leased property to Plaintiffs and then illegally evicted Plaintiffs. (SAC, p. 2.) Defendant represented that the property had two bedrooms and one bathroom. (SAC, p. 4.) This was false because the property had three bedrooms and two bathrooms. (Ibid.) Defendant allowed other tenants to use Plaintiffs electricity and gas. (SAC, p. 4-5.) Defendant made arrangements to rent a suite to one of the Plaintiffs with the intent to evict that Plaintiff. (SAC, p. 3.) The same month that Plaintiff signed the lease, the Defendant filed paperwork to condemn the same unit. (Ibid.) Plaintiffs allege this induced them to file complaints with Los Angeles Community and Community Investment Department and the SoCal Gas Company. (Ibid.) This caused Plaintiffs to pay for motels and suffer emotional distress. (Ibid.)

The Court finds the fraud cause of action is uncertain. Plaintiffs allege that Defendant conveyed that the property Plaintiffs were to lease had less rooms than it actually did. It is unclear how this fact is related to Plaintiffs’ filing of complaints with Los Angeles Community and Community Investment Department and the SoCal Gas Company. It is also unclear how the condemning of the property and the eviction play a part in Defendant’s statement that the property had one less bedroom and bathroom than it actually did.

It is also unclear how the additional tenants who used Plaintiffs electricity and gas factor into this equation. Plaintiffs do not allege that these tenants were leasing the other bedroom and bathroom that Defendant failed to disclose to Plaintiffs as being a part of Plaintiffs’ leased property. As such, the Court cannot ascertain what facts Plaintiffs’ alleged fraud is based on.

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Intentional Tort

Plaintiffs rely on a portion of the same facts relied on in Plaintiffs’ fraud cause of action. There is no suggestion as to which intentional tort Plaintiffs are attempting to allege here. As such, this cause of action is uncertain.

Negligence & Premises Liability

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Premises liability is a form of negligence where a plaintiff must show 1) defendant owed a duty based on his ownership or control of property; 2) defendant was negligent in the use, maintenance or management of the property; 3) the plaintiff was harmed; and 4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Plaintiffs allege they moved into an illegal unit. (Compl., p. 9.) Defendant did not comply with a notice/order to comply from Los Angeles Housing and Community Investment Department when the inspector found multiple violations in the Plaintiffs unit. (Ibid.) The Defendant retaliated by illegally evicting Plaintiffs with fictitious lease documents and by not following a rent control ordinance or notice. (Ibid.) Plaintiff Cook pushed a window with rotted wood and thin glass up when the glass shattered and injured Plaintiff Cook. (SAC, p. 11.) The property smelled of gas due to a leak on the stove from faulty parts and a leaking heater. (SAC, p. 6.)

The Court finds sufficient facts have been alleged to state a cause of action for premises liability. Defendant leased property to Plaintiffs, that property had gas leaks, rotted wood, and unsafe glass. This caused Plaintiff Cook physical harm to his arm and Plaintiffs financial harm in having to pay for hotels.

Nevertheless, the demurrer is properly sustained because of the above issues regarding Plaintiffs Riddlespriger’s and Cook’s capacity to sue and the causes of action for fraud and intentional tort being uncertain.

CONCLUSION

The demurrer is SUSTAINED.

The demurrer is SUSTAINED as to: (1) Plaintiffs Riddlespriger and Cook because they lack capacity to sue, (2) the fraud cause of action because it is uncertain, and (3) the intentional tort cause of action because it is uncertain.

While the court finds that negligence and premises liability causes of action are properly pled, Plaintiffs have no capacity to pursue these.

Plaintiffs may file a third amended complaint within 20 days of this ruling.

Defendant is ordered to give notice of this ruling.