Demurrer With Motion To Strike Ccp 43010MotionCal. Super. - 2nd Dist.July 3, 2018Electronically] AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ILED by Superior Court of California, County of Los Angeles on 03/20/2020 04:06 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk Todd A. Jones (SBN 198024) tjones @mv;jllp.com Richard A. LeVu (SBN 265441) rlevu@mvjllp.com MOKRI VANIS & JONES LLP 2251 Fair Oaks Blvd., Suite 100 Sacramento, CA 95825-5537 T: (916) 306-0434 F: 949.226-7150 Attorneys for Defendant/Cross-Complainant SAVECAL, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES - CENTRAL JUDICIAL DISTRICT DARRYL LA BAT, an individual and SHEVETTE LA BAT, an individual, Plaintiffs, Vv. SAVECAL, a Limited Liability Company; and DOES 1 through 100, inclusive, Defendants. CASE NO. BC712447 Assigned to Department 74 Hon. Michelle Williams Court SAVECAL, LLC’S NOTICE OF HEARING ON DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES [Filed Concurrently with Request for Judicial Notice; Declaration of Richard A. LeVu; [Proposed] Order Granting Defendant’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint; Defendant’s Notice of Motion And Motion to Strike Portions of Plaintiffs’ First Amended Complaint; and [Proposed] Order Sustaining Defendant’s Demurrer to Plaintiffs’ First Amended Complaint] Reservation No.: 664457108279 DATE: June 8, 2020 TIME: 8:30 a.m. DEPT.: 74 Complaint Filed: July 3, 2018 Trial Date: July 20, 2020 AND RELATED CROSS-ACTIONS. 111 111 1 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 8, 2020, at 8:30 a.m., or as soon thereafter may be heard, in Department 74 of the above-entitled Court located at 111 North Hill Street, Los Angeles, California 90012, the Court will hear the Demurrer of SAVECAL, LLC (hereinafter, “SaveCal” or “Defendant”) to the First Amended Complaint of Plaintiffs DARRYL LA BAT, AND SHEVETTE LA BAT (hereinafter, “Plaintiffs”). This Demurrer is made pursuant to California Code of Civil Procedure sections 430.10 et seq., and is based on the following grounds: DEMURRER TO THE ENTIRE COMPLAINT Plaintiffs’ Complaint is subject to demurrer based on Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and upon Code of Civil Procedure section 430.10, subdivision (f), as the entire Complaint is uncertain, ambiguous and unintelligible. DEMURRER TO THE SECOND CAUSE OF ACTION Plaintiffs’ Second Cause of Action for Breach of Contract is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). DEMURRER TO THE THIRD CAUSE OF ACTION Plaintiffs’ Third Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (¢) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). DEMURRER TO THE FOURTH CAUSE OF ACTION Plaintiffs’ Fourth Cause of Action for Promissory Estoppel is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). 1" 2 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO THE FIFTH CAUSE OF ACTION Plaintiffs’ Fifth Cause of Action for Violations of Business and Professions Code section 17200 et seq. is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). DEMURRER TO THE SIXTH CAUSE OF ACTION Plaintiffs’ Sixth Cause of Action for Intentional Infliction of Emotional Distress is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). In addition, Plaintiffs failed to properly seek leave of Court to amend their complaint to include this cause of action. DEMURRER TO THE EIGHTH CAUSE OF ACTION Plaintiffs’ Eighth Cause of Action for Nuisance is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). DEMURRER TO THE NINTH CAUSE OF ACTION Plaintiffs’ Ninth Cause of Action for Trespass is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). DEMURRER TO THE TENTH CAUSE OF ACTION Plaintiffs’ Tenth Cause of Action for Violations of Business and Professions Code section 7031, subdivision (b) is subject to demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) as the Complaint fails to allege facts that would support a cause of action and for being uncertain under Code of Civil Procedure section 430.10, subdivision (f). Counsel for Plaintiffs and Defendant, in an effort to comply with the meet and confer requirements, attempted to do so but were not successful in resolving the issues outlined in this Demurrer. (Code Civ. Proc., § 430.10, subd. (f)). 3 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT This Demurrer will be based on this Notice, the attached Memorandum of Points and Authorities, and the concurrently filed Request for Judicial Notice, Declaration of Richard LeVu, and upon all pleadings and papers on file herein together with such oral and documentary evidence as may AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be presented at the time of the hearing. Dated: March 20, 2020 4 By: MOKRI VANIS & JONES, LLP /s/ Richard A. LeVu Todd A. Jones Richard A. LeVu Attorneys for Defendant/Cross- Complainant SAVECAL, LLC SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. TABLE OF CONTENTS NT BC EC TI css oops ee 5 5 ERE SRA 8 A. Statement Of Facts And Procedural HiStOry..........coooviviiiiiiiiiiiniiiiiiiceeeiece ieee 8 B. Basis FOr DEMUITET ........cooiiiiiiiiiiiie etcetera essere ssa esas 9 AR CGTUTIVIEINT 5555 ms 45 sss sss omg 55.6.5 455535545 5055555 455535705 4555535 555355. S655 A5TR3 9.85 S45 3435 E5330 45 10 A. Standards FOr DEMUITET .........cooiiiiiiiiiiinie necessaries 10 B. The Entire Complaint Is Subject To Demurrer As It Is Uncertain, Ambiguous And! Of UnTREIIEIBLE :-: su oceuuss swum ss sansa asmasss os sussss sms ss sis 555s i5 24555308 3050055 585358553 S405550 38.5 10 C. Plaintiff’s Second Cause Of Action For Breach Of Written Contract Is Legally INSUTTICIENT «c necaessa essa essa ee sbbe es saae ens 12 D. Plaintiffs’ Third Cause Of Action Failed To State A Claim For Breach Of Implied Covenant Of Good Faith And Fair Dealing..........ccccoeoiiiiiiiiniiiiniiiniieieccesieceieeee 12 E. Plaintiffs’ Fourth Cause Of Action Failed To State A Cause Of Action For PrOTOiSOTTY 1ST OMIIE weumas assassins asssosnnssn snes asin ss ummm ss uses ass sms Sows uss 13 F. Fifth Cause Of Action For Violation Of Business And Professions Code Section 17200 (Unfair Competitions Law) Fails To State A Cause Of Action..........cocceevveeuneennee. 14 I. TTTTTET TPPTTTLE ens smc isons sa mes 4A TH 5 4 FAB A 4 SA SSA 55 15 2. Unlawful Prong. ....cc.oooiiiioiieceee cece e e cec sree sees 16 3. Fraudulent Prong.............ooueoiiiiiiieiiececee sce eeesreseees 16 G. Sixth Cause Of Action For Intentional Infliction Of Emotional Distress Fails To State A Cause Of ACTON ...cc.eeiiiiirieeieeeietie sects sreesreeeere cece ee sae sere eaees 17 1. Plaintiffs Failed to Properly Seek Leave of Court to Amend their Complaint to Include Intentional Infliction of Emotional Distress ............cc......... 17 2. Plaintiffs’ Failed to State a Cause of Action for IED .........ccceeoiiiiiiiiinninieenen. 18 H. Eighth Cause Of Action For Nuisance Fails To State A Cause Of Action..........c.ccc........ 19 L Ninth Cause Of Action For Trespass Fails To State A Cause Of Action.......cccccceceeenneeee 20 J. Tenth Cause Of Action For Violation Of Business And Professions Code Section 7031(b) Fails To State A Cause Of ACHON ........ueeeeiiiiieeeciie ee 21 K. Leave To Amend Is Properly Denied uc cess seuss semen ss cuss sosasss os samssss aves ss swsasss seuss ss se 22 CONCLUSION... cect sete ee estes sae sa beet estes sees sabe ease e snes saee sabe enseenneens 22 5 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Akins v. Sacramento Mun. Utility Dist. (1992) 18 Cal. APP.Ath 208... eee eee eee eee sees sates sates states sabe e esate ee sabe ee saees Alcorn v. Anbro Engineering, Inc. C1970) 2 CAL IA ADT ii sums somnnss snmnssm oo 55756.5555557.45 5555535 $5553 5548 545554559 SA53557.08 SH35H5S SHS55 47038 SHH 37S SRSH3FRA0 RHBH RH SATA 0.8 Assn. of Community Organizations for Reform Now v. State of Cal. (1995) 41 Cal. APP.ALh 208... eerste sees t teste sees bee sbte sabe enne estes shee sabe anneesnseas Brandwein v. Butler (2013) 218 Cal.APP.Ath 1485... eee eee e ete e shee sabe esee ee bee esas sabe aneeenseas Burke v. Maguire CLIOB) 139: Cal ZT) saosin own mass sss soissesmosss smasssisssse sis 58a 438 88353854860 ORE SH 5 A NARA SHA SSH HERR SN Capogeannis v. Superior Court (1993) 12 Cal.APP.Ath B68... eee ete eee ete sees sates sates sabe e esate esate ee sabe eee Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. APP-3A 1371 e ee eee stes eee t este sabe ense estes ebae sabe anneeenseas Cel-Tech Commc ns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Caldth 1603 .....ooiiiieeiiee c sta steer eh eset tees bestest shea shes ebt estes tennant sa entes City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal. APP.ALh 44S oon ee eters teste sees b ee sbee sabe e nate ete e sabe sabe anneeenseas Cochran v. Cochran C1998) 65 Cal APD AT, ABE cose swmnnsn soos sn ons is 25555575 555555 505555 555 555555738 545535 S455 5% 05H 55 58 SA555 F550 SHT5 AA ATRIA Cummings v. Spire Ins. Exchange (1988) 202 Cal. APP.3A TADT eee eee eects sees ee sates sates sates sabe eesabe esses Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal APPA 247 cnet e e eee este eee e tee sbte sabe e sates b ee sbae sabe anneeenseas E-Fab, Inc. v. Accountants, Inc. Services 007) 133 Cal. APDATD 1308 sunaonsusssussesmmsnsmaseosnsnnessnnas ous a sysssas 16 5mm 558 msm 50s sama El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal. APP.Ath 133 oes e eb eeeetteees estes be sees eb esse eb tetas e seen se enna Garcia v. Superior Court (1990) 50 Cal.3d T28 eee eee eee eee ete ete ete ete etter e sate e sabe ee sabe ee sabe ee eabe ee eabe ee sabe ee eabe ee nanes Gilmore v. The Lycoming Fire Ins. Co. CLBBOY 35 Cli 123 sneonmsarsassmosmassossnnmasesas smo ss es es se 40045 8500 65 0453 RASS A SSA BSAA 493 Heckendorn v. City of San Marino (1986) 42 Cal.3A 481... eects eee st teeta eee e tee sb tesa teense eet ee ebae sabe enne estes ebae sabe eneeenraas Khoury v. Maly’s of California, Inc. C1993) 14 Calo APD ALE. B12 so cous ovis snus sums sn snnssi owionssn.s xsi sss on 5455558 8505555548 545F545 SH55557.58 SHSHSHB SRSHERS 05 Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal. APP.ALI T0360 cnet eee estes eee e ete esbee sete ese estes ebae sabe aseeensaes Ladas v. California State Auto. Assn. (1993) 19 Cal.APP.Ath TOT nee ete eee eee sees eaeeesatee sabes sabe e esate eesabe esses Loser v. E.R. Bacon Co. (1962) 201 Cal. APD2A FBT cn unonsusssussesmmssssmassossse issues uss assysssa5 485 55m 55858 Rm So HERTS SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal. APP.Ath 1113 L nnie ee eerste ete t testes sabe e east ee sbae sabe anneeeneeas 21 Michaelian v. State Compensation Insurance Fund (1996) 50 Cal. APP.Ath 1093... eee ee eee et ee eee ee este esbeeeebe esate ebee esas enbeanneeensens 18 Miller v. National Broadcasting Co. (1986) 187 Cal.LAPP.3A 1463 o.oo eee sete sees b ee sbae sabe e ae estes shee sabe anneeenseas 20 Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal APP.3A 452 cnet eee eee eee este sete e ete e shee sabe enae estes shee sabe anneeenseas 12 Patricia A. Murray Dental Corp., v. Dentsply Int’l, Inc. CANBY 19 CAL ADD STN. LOB i ssmss snus soos sn ons s 5555555 555555 505555 555 5555557538 SAT5HH5 S555 0 SH 53 58 SAR H5-50 SATS A A SATA 16 Schonfeldt v. State of California (1998) 61 Cal. APP.ALh 1402... eee eerste ete t testes sabe ee estes sbae sabe aseesneeas 10 Scolinos v. Kolts (1995) 37 Cal. APP.ALI 035 coon eee estes tees be sees tee sbte sabe ense ee bee este sabe anneeensens 12 Setliff v. E.I. Du Pont de Nemours & Co. C1995) 52 Cal SEA, 15 smmonnnssisnsumssesssoresenrsssnonssssss ovum ssa mess ss a e as ass 14 Valerio v. Andrew Youngquist Construction (2002) 103 CalLAPP-Ath 1264... eee eee east shee sabe e eee b ee sbbe sabe anneeenseas 14 Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.APP.3A 135 ie ete eee este sete sees bee sa be sabe ense estes esas sabe anneeenseas 11 Wilson v. Interlake Steel Co. (1982) 32 Cal. 3A 229 eee eects e eee eee e eee eee e eee e ates seer ae ee etae eee raeae ean 20 Youngman v. Nevada Irrigation Dist. (1969) TO Cal.2A 240 eee eee eee eee ee eee eee eee eet eset e ee eaa eee e seats ae ee eaas ease easae ee ensaeae eas 14 Statutes Business and Professions Code SECtion 17200 .........ouoviviiiiieiiiiiiieiieieeeeeeeeeeeeeeeeeeeeeeeeeveeeveaeeeaeaes 9,14, 15, 17 Business and Professions Code SECON 7031 .......oovviviviiiiiiiiiiiiieeieieeeeeeeeeeeeeeeeeeeee e ee eeaev aevea ae ea s 10, 18, 21 CIVIL COE SECHION 3470... cee eee eee erat eee eee te reese esse este sta es esse esse saasannes sees sessnnannenseeeses 19 CIVIL COE SECHION AB... eee eee eee eee eee ee eset te ttre esse este stares sees sess asananeseeessessasnneneneese 19 Code of Civil Procedure SECHION 425.10 coouuuueeieiiiiiiiieeee e cts e teeters esas ee te seas e see s ser na es eeaeses 11 Code of Civil Procedure SECON 430.10 .......oooviiiiiiiiiiiiiiieiieieeeeeeeeeeeee eee eevee eve ae sas ae eeaeaeaeaeaea a a ees 9,10 Code Of Civil Procedure SECHION 473 ...cooovieeeeeeie ieee eee eee teers e eee ee teats es esse ease rtaasses esse seseassseseneesen 18 Other Authorities CACTI 2000 cee eee eee eee eee eee ee ae ee eee ae ae tesa ae ae ae ae ease sea e ae ae ease se ae ae se ae se ae se se se se se sere nese sane seseseseneaenenes 22 CACTI AS5600 cco eee eee eee eee ae ee eae ee ae ae ae eee esas eae ae sea e ae ae se se ease aes e ae se se ae sere ae ae ae nese sesenenenenenes 22 Rules California Rules of Court, TUIE 3.1324 ......ooo viet ee eee eee ae ease esas esas ae aeeeaeaeaeaes 19 Treatises 5 Witkin, California Procedure, Pleadings § 905, P. 360.......cccccuiriiiiiiiiniiiieiieetee sees 12 The Rutter Group, California Practice Guide: Personal 9 Injury, p. 5-128.1, {5:426 .....ccccccvvuvevnneenne. 12 T SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A. Statement Of Facts And Procedural History This case involves a property damage claim that arises from a fire to a single-family home. Plaintiffs DARRYL LA BAT, AND SHEVETTE LA BAT (hereinafter, “Plaintiffs”) allege that they had hired Defendant/Cross-Complainant SAVECAL, LLC (hereinafter, “SaveCal” or “Moving Defendant”) to install a Heating, Air Conditioning and Ventilation (“HVAC”) at their house that is located at 2321 W. 77" Street, Inglewood, California 90305 (hereinafter, “Property”). Plaintiffs alleged that several months after SaveCal had performed its work, a fire broke out on February 10, 2017. Plaintiffs alleged that SaveCal had caused that fire. On or about July 3, 2018, Plaintiffs filed their original Complaint against SaveCal. (See a true and correct copy of the Complaint, attached to Request for Judicial Notice as Exhibit A.) Their Complaint included the following causes of actions: (1) Negligence, (2) Breach of Contract, (3) Breach of Implied Covenant of Good Faith and Fair Dealing, (4) Promissory Estoppel, (5) Violation of Business and Professions Code Section 17200, (6) Negligent Infliction of Emotional Distress. On or about January 7, 2020, Plaintiffs appeared Ex Parte for Leave to File a First Amended Complaint (hereinafter, “FAC”) (See a true and correct copy of Plaintiff's Ex Parte Application for Leave to File FAC, attached to Request for Judicial Notice, as Exhibit B.) The Application contained the Proposed FAC as an Attachment. Plaintiffs’ Application indicated that they would be seeking to add the following four causes of actions: (1) Negligent Hiring, Supervision, or Retention; (2) Nuisance; (3) Trespass; and (4) Business and Professions Code section 7031. The Court denied Plaintiffs’ application. (See a true and correct copy of Minute Order Denying said Application, attached to Request for Judicial Notice as Exhibit C.) On or about January 9, 2020, Plaintiffs appeared a second time Ex Parte for Leave to File a FAC. The Court had again denied their second Ex Parte application. (See a true and correct copy of Minute Order Denying said Plaintiffs’ Second Application, attached to Request for Judicial Notice as Exhibit D.) On or about February 3, 2020, Plaintiffs appeared Ex Parte to Continue Trial and Set a Mandatory Settlement Conference. In addition, Plaintiffs appeared Ex Parte for Leave to File A First Amended 8 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint. (See a true and correct copy of Plaintiffs’ Ex Parte Application for Leave to File First Amended Complaint on February 3, 2020, attached to Request for Judicial Notice as Exhibit E.) The Ex Parte sought to include four additional causes of actions: Plaintiffs also seek to add the following new causes of action to their operative complaint: (1) Negligent hiring, supervision, or retention; (2) Nuisance; (3) Trespass; and (4) Business & Professions Code §7031. (See Exhibit E, page 9, lines 25-28).. On February 3, 2020, the Court granted the trial continuance and granted Plaintiffs with leave to file the FAC. (See a true and correct copy of Court’s Minute Order, dated February 3, 2020, attached to Request for Judicial Notice, attached as Exhibit F.) On or about February 12, 2020, Plaintiffs served their FAC by mail. (See a true and correct copy of Plaintiffs’ FAC, attached to Request for Judicial Notice as Exhibit G.) However, Plaintiffs surreptitiously filed and served a FAC that included a different cause of action by including a claim for Intentional Infliction of Emotional Distress (“IIED”). As stated above, Plaintiffs did not request leave to amend their complaint to include a cause of action for IIED. While Plaintiffs’ original complaint included a claim for Negligent Infliction of Emotional Distress (“NIED”), the FAC that was served, deleted the “NIED” cause of action, and instead, replaced it with “IIED.” As the Court is aware, this is a significantly different cause of action than negligent infliction of emotional distress, and Plaintiffs did not properly obtain leave to include the IIED cause of action. B. Basis For Demurrer Plaintiffs’ FAC is defective, failed to state of a cause of action, are uncertain, ambiguous, unintelligible under Code of Civil Procedure section 430.10 for the following reasons: With respect to the Second Cause of Action for Breach of Contract, Plaintiffs failed to set out the terms of the contract or attach a written instrument. With respect to the Third Cause of Action for Breach Implied Covenant of Good Faith and Fair Dealing, Plaintiffs failed to state a cause of action. With respect to the Fourth Cause of Action for Promissory Estoppel, this claim applies when an agreement lacks “consideration” to form a contract. Plaintiffs have already alleged a claim for breach of contract and “consideration.” With respect to the Fifth Cause of Action for Violation of Business and Professions Code section 17200 et seq., this statute addresses unfair competition, such as unlawful, unfair, and fraudulent business 9 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acts. Plaintiffs failed to set forth of which prong of the Section 17200 SaveCal is purportedly in violation. With respect to the Sixth Cause of Action for Intentional Infliction of Emotional Distress, Plaintiffs failed to properly seek leave of Court to amend their complaint to include this cause of action. In addition, the FAC fails to set forth facts to support this cause of action. With respect to the Eighth Cause of Action for Nuisance, Plaintiffs failed to state facts sufficient to establish this cause action and is duplicative of Plaintiffs’ negligence claim. With respect to the Ninth Cause of Action for Trespass, Plaintiffs failed to state facts sufficient to establish this cause of action. The claim requires the “entering” of the property. Here, Plaintiff failed to allege that SaveCal actually entered the property, or caused another person to enter the property. With respect to the Tenth Cause of Action for Violations of Business and Professions Code section 7031, subdivision (b), Plaintiffs failed to state a cause of action for this claim. Plaintiffs failed to properly plead the existence of a contract, that a valid contractor’s license was required to perform the services, and that the Plaintiffs paid SaveCal for those services. As such, this cause of action fails. II. ARGUMENT A. Standards For Demurrer Code of Civil Procedure section 430.10 et seq., provide the basis for demurrers. Grounds include that the pleading does not state facts sufficient to constitute a cause of action and/or that they are uncertain, ambiguous, and unintelligible. In order to be sufficient, a complaint must allege facts which, without the aid of other conjectured facts not stated, shows a complete cause of action. (Garcia v. Superior Court (1990) 50 Cal.3d 728, 737.) A trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under applicable substantive law there is no reasonable possibility that an amendment could cure the complaint’s defect. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.) If, however, no liability can attach as a matter of law, then leave to amend should not be granted. (Schonfeldt v. State of California (1998) 61 Cal. App.4th 1462, 1465.) B. The Entire Complaint Is Subject To Demurrer As It Is Uncertain, Ambiguous And/ Or Unintelligible “A general demurrer ‘searches the complaint’ for any and every failure to state a material fact. In other words, the absence of any allegation essential to the cause of action makes the complaint vulnerable 10 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to a general demurrer. The ruling on a general demurrer is thus a method of deciding the case on the merits of assumed facts (those alleged) without a trial.” (5 Witkin, California Procedure, Pleadings § 905, p. 366, citing Burke v. Maguire (1908) 154 Cal. 456, 462, 98 P. 21) (Emphasis added) Generally, the plaintiff must plead each and every fact upon which liability depends, that is, “the ultimate facts.” (The Rutter Group, California Practice Guide: Personal 9 Injury, p. 5-128.1, { 5:426.) “Unnecessary details” and “generalized arguments” are objectionable and subject to demurrer. (Id.) Here, the allegations set forth in Plaintiffs’ FAC are replete with conclusory language, generalized arguments, and irrelevant statements. Therefore, the entire FAC is subject to a general demurrer. Code of Civil Procedure section 425.10, subdivision (a) requires a complaint to contain a “statement of facts...in 29 ordinary and concise language.” Here, the FAC contains nothing more than broad generalizations and generic “boilerplate” language. Plaintiffs have failed to include the necessary “ultimate facts” to constitute each cause of action stated in the FAC as to the defendant. A demurrer for uncertainty lies if the failure to label the parties and claims renders the complaint so confusing that the defendant cannot tell which claim is addressed to him. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) Here, the demurrer to the entire complaint should be sustained because none of the ten causes of actions indicate as to which defendant each cause of action applies. Such pleading tactics mask Plaintiffs’ inability to plead and prove with particularity the requisite culpable conduct of each identified defendant, and also attempts to cause each defendant to respond to the broad-brush allegations without any regard to whether these causes of action could actually be properly asserted against them. Plaintiffs added a new defendant, without any factual allegations to distinguish the conduct of this defendant from that of SaveCal, rendering the entire complaint hopelessly uncertain. SaveCal should not be required to defend against such nebulous allegations and pleading tactics, and thereby, requests that their demurrers be sustained. SaveCal is entitled to know against which Defendant each cause of action is alleged. Since Plaintiffs’ FAC is so uncertain as to which entities and individuals are being named, and for what stated legal theories, Defendants each are entirely unable to reasonably respond to the Complaint. 111 111 11 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Plaintiff’s Second Cause Of Action For Breach Of Written Contract Is Legally Insufficient California law requires a contract to be sufficiently definite so that a court can determine the limits of performance and the promises in the contract to find a rational basis for the assessment of damages. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.) Moreover, “[W]here a party relies upon a contract in writing, and it affirmatively appears that all the terms of the contract are not set forth in haec verba, nor stated in their legal effect, but that a portion which may be material has been omitted, the complaint is insufficient.” (Gilmore v. The Lycoming Fire Ins. Co. (1880) 55 Cal. 123, 124.) Accordingly, a contract may be pleaded either in haec verba (word for word) or so long as the terms of the contract are specifically set forth or attached to the complaint itself. (See, Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640.) In Gilmore, as in this case, the plaintiff failed to attach to her complaint documents forming a part of the written contract with defendant. The Gilmore Court instructed the lower court to sustain defendant’s demurrer to plaintiff’s written contract claim. Here, in order for the Court to fully understand Plaintiff’s claims for breach of contract, the entire contract must be attached to the FAC so that is can be determined whether Plaintiffs’ breach of contract claims are viable. Plaintiffs’ FAC does not satisfy either the attachment of the contract to the pleading or the “in haec verba”. Furthermore, Plaintiffs” FAC clearly does not adequately allege the essential terms of a contract. (See, Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.) While it appears that Plaintiffs had intended to attach an Invoice to the FAC, Plaintiffs failed to do so in their FAC. (See, FAC { 51.) However, because there is no explanation of the agreement or its material terms contained in the FAC, it cannot be determined from the face of the FAC if in fact a written contract exists, the terms and the contents of such a contract, and the nature of Plaintiff’s claim thereunder or Moving Defendant’s potential liability. Accordingly, Plaintiff’s second cause of action for Breach of Written Contract fails to state sufficient facts to state a claim against Defendant. D. Plaintiffs’ Third Cause Of Action Failed To State A Claim For Breach Of Implied Covenant Of Good Faith And Fair Dealing Plaintiffs’ FAC failed to state a claim for breach of implied covenant of good faith and fair dealing. Parties cannot recover tort damages beyond those alleged in a breach of contract claim absent some 12 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limited circumstances. These circumstances typically involve insurance cases or cases that involve “special relationships.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394). “[I]t seems clear to us that the recognition of a tort remedy for a breach of the implied covenant in a noninsurance contract has little authoritative support.” (Id. at 1399). Careau & Co., involved a breach of contract matter that involved a $12 million loan between the bank and lendee. The complaint involved various causes of actions including a breach of implied covenant of fair dealing. The Court sustained the defendant’s demurrer to the cause of action. The Court stated, A “breach of implied covenant of good faith and fair dealing involves something beyond the breach of the contractual duty itself.... If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. Thus, absent those limited cases where a breach of a consensual contract terms is not claimed or alleged, the only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery. (Id. at 1394-1395) (emphasis added). Here, Plaintiffs” FAC does not allege a “special relationship” with Defendant. Furthermore, the FAC does not allege that this case involves a dispute between an insurer and insured, which is normally addressed by this cause of action. As such, Plaintiffs cannot seek tortious damages based on its breach of contract claim. However, Plaintiffs attempt to inappropriately do so by seeking to “recover general, special actual and compensatory damages, including but not limited to, their necessary medical and related expenses, past, present and future costs, loss of earnings, as well as mental, emotional and physical pain and suffering . . .” (Plaintiffs’ FAC, { 69.) Furthermore, it should be noted that Plaintiffs clearly alleged a breach of contract claim. As indicated above, the Court may disregard this cause of action as “superfluous as no additional claim is actually stated” and should sustain this demurrer. E. Plaintiffs’ Fourth Cause Of Action Failed To State A Cause Of Action For Promisorry Estoppel Plaintiffs’ FAC failed to state a claim for promissory estoppel. The purpose of promissory estoppel is to enforce a promise which lacks “consideration.” The purpose of this doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee’s performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable. 13 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 249.) In Youngman, the Court sustained the demurrer as to the claim for promissory estoppel in the employment context. The Court found that employer had promised to provide raises in exchange for his continued employment, which was the “consideration” element of the contract. (Id. at 250). Here, in our case, Plaintiffs’ FAC alleged a cause of action for breach of contract, which included the payment for the construction work. (Plaintiffs’ FAC, {{52.) Plaintiffs allege the same “consideration” at paragraph 63 when they alleged that they “entered into a contract whereby Defendant would install a new electrical panel and anew HVAC system, in exchange for payment from Plaintiffs.” Plaintiffs alleged “consideration” in their FAC and thus the demurrer to their promissory estoppel should be sustained. Furthermore, Plaintiffs cannot amend this allegation as they are bound by their judicial admissions in their pleading. (Setliff v. E.I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1534). Under the doctrine of ‘conclusiveness of pleadings,’ a pleader is bound by well pleaded material allegations ....” (Valerio v. Andrew Youngquist Construction (2002) 103 Cal. App.4th 1264, 1271, as modified (Dec. 3, 2002). Further, “[b]ecause an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial.” (/d. at 1271.) On demurrer, plaintiff is bound by admissions in his pleadings and the admissions negate any attempt to allege facts to the contrary. (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1515.) As set forth herein above, Plaintiffs own material allegations expressly concede that consideration was exchanged negating an essential element to set forth a cause of action for promissory estoppel. Plaintiffs must be bound by this judicial admission. F. Fifth Cause Of Action For Violation Of Business And Professions Code Section 17200 (Unfair Competitions Law) Fails To State A Cause Of Action Plaintiffs’ cause of action for Violation of Business and Professions Code section 17200 fails to state a cause of action. A Plaintiff alleging violations under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619). There are separate lines of authority construing whether a Section 17200 claim is based on an alleged unfair act, an alleged unlawful act or alleged fraudulent conduct each of these three terms. (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 851). In order to adequately plead a cause of action under this Section, a Plaintiff must identify the business practice(s) at 14 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issue and if applicable, the statutes, regulations or other law borrowed in support of an “unlawful” claim, the statutes regulations or other law to which any “unfair” claim may be tethered, and the misrepresentations or omissions that support any “fraudulent” claim. Section 17200 borrows violations from other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. (Cel-Tech Commc ‘ns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 180). Each prong is separate and distinct. Here, Plaintiffs’ FAC fails to state a cause of action under these three prongs. To the extent Plaintiffs contend that general allegations set forth in paragraph of 80 of Plaintiffs’ FAC as to “unfair and fraudulent” conduct comports with the requisite pleading requirements, such a conclusory allegation is insufficient to state a cause of action for violations of Business & Professions Code section 17200 as set forth further herein below. 1. Unfair Prong While the California Supreme Court has not established a definitive test to determine whether a business practice is unfair, Courts of Appeals have applied three different tests to determine unfairness in consumer cases. (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal. App.4th 247, 256). The first test requires “that the public policy which is a predicate to a consumer unfair competition action under the ‘unfair’ prong of the UCL must be tethered to specific constitutional, statutory, or regulatory provisions.” (Id. at 256). In applying the facts to the Drum case, the Court stated that plaintiff “failed to allege any violation or incipient violation of any statutory or regulatory provision, or any significant harm to competition.” (Id. at 256). The second test applies to business practices which “is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers and requires to court to weigh the utility to the defendant’s conduct against the gravity of the harm to the alleged victim.” (Id. at 257). The third test requires that “(1) the consumer injury must be substantial; (2) the injury must not be outweighed by any countervailing benefits to consumers or competition; and (3) it must be an injury that consumers themselves could not reasonably have avoided.” (Id. at 257) Here, Plaintiffs’ FAC fails to state a cause of action under all three tests. Plaintiffs failed to allege any type of statutory violation under the first prong. Under the second prong, Plaintiffs failed to allege 15 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any type of business practice at all, let alone a business practice which is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. As to the third test, the injury alleged by the plaintiffs (the fire) could have, and was reasonably avoided by the Plaintiffs. In fact, Plaintiffs’ own FAC alleges that they took their own action by hiring an electrician to perform repairs, and that the Defendants failed to make any of the repairs afterwards (FAC 66). Furthermore, Plaintiffs alleged that three months had passed before a fire occurred (FAC 67). As such, not only did Plaintiffs take affirmative actions by hiring an electrician to work on their house, they had a period of three months to take other actions, to avoid the alleged injury. Thus Plaintiffs fail to meet the third test of the instant prong. 2 Unlawful Prong. In order to state a cause of action based on “unlawful” business practices, Plaintiffs must allege facts sufficient to show a violation of some underlying law. (People v. McKale (1979) 25 Cal.3d 626, 635). Here, Plaintiffs’ FAC fails to allege any type of law that was violated by SaveCal. As such, Plaintiffs failed to state a cause of action of the “unlawful” prong. 3. Fraudulent Prong. The Fraud prong of the UCL involves business practices that are “likely to deceive the public. It may be based on representations to the public which are untrue, and “also those which may be accurate on some level, but will nevertheless tend to mislead or deceive. . .. such as by failure to disclose other relevant information...” (Patricia A. Murray Dental Corp., v. Dentsply Int’l, Inc. (2018) 19 Cal. App.5th 258, 270). “The determination as to whether a business practice is deceptive is based on the likely effect such practice would have on a reasonable consumer [citation omitted].” (Id. at 271). In cases involving false advertisement, Courts look to see whether the ad is “such that it is probable that a significant portion of the general consuming public or of targeted consumer, acting reasonably in the circumstances, could be misled” as opposed to whether there is a “mere possibility that the advertisement might be conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” (Id. at 271.) Here, Plaintiffs’ FAC fails to state a cause of action under the “Fraud” prong. Paragraph 77 of the FAC generically states that, “Defendants misrepresented their expertise, know-how and caliber of their workmanship to Plaintiffs.” This simplistic statement fails to state a sufficient claim under UCL prong as it is alleged collectively against SaveCal and the other defendant. Plaintiffs’ FAC contains no factual 16 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegations specific to this entity and alleges all causes of action and seeks all relief against all Defendants without making any attempt to detail any conduct specifically attributable to each defendant. (See, FAC, generally; FAC { 33-37.) The standard that Courts address whether an ad is “such that it is probably” that it would mislead the general targeted consumers as opposed to just the Plaintiffs themselves. Plaintiffs’ FAC is essentially based on a construction-defect negligence claim that involved the installation of an HVAC unit. While Plaintiffs can certainly allege that ‘Defendants’ work fell below the standard of care’, this type of allegation is taken on the individual perspective - not the general public. There is no allegation that the Defendant made fraudulent ads that misled the general public. Moreover, there is no allegation that Defendant’s construction work caused any other fires to anyone else. In addition, Plaintiffs failed to allege the exact specifics on what was said, when it was said, where it was said, etc. Plaintiffs allegations are factually devoid of any facts amounting to the actions that they claim that SaveCal took to mislead the general public. The mere fact that SaveCal’ construction work did not live up to Plaintiffs’ expectation does not amount to fraud or unfair competition. Even assuming arguendo that Plaintiffs’ allegations are true and that SaveCal improperly installed the HVAC, this act does not amount to a fraudulent act or business practice. There are plenty of construction-related accidents that occur on a regular basis. While construction-accidents may amount to a potential negligence claim, they do not amount to fraudulent acts. To hold otherwise would change the landscape of the construction industry as well as businesses all over the state and country. Accordingly, Plaintiffs’ fifth cause of action fails to state a claim for violations of Section 17200. G. Sixth Cause Of Action For Intentional Infliction Of Emotional Distress Fails To State A Cause Of Action Defendant respectfully requests that the Court sustain its demurrer as to this cause of action due to Plaintiffs’ failure to properly seek leave of Court to amend their complaint to include a cause of action for Intentional Infliction of Emotional Distress (“IIED”), and because the FAC fails to state a cause of action. 1. Plaintiffs Failed to Properly Seek Leave of Court to Amend their Complaint to Include Intentional Infliction of Emotional Distress Defendant respectfully requests that the Court sustain this demurrer because Plaintiffs failed to 17 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 properly seek leave of Court to amend their complaint to include the cause of action for IIED. (Code of Civil Procedure section 473; California Rules of Court, rule 3.1324; Loser v. E.R. Bacon Co. (1962) 201 Cal.App.2d 387, 389-390). As indicated above, Plaintiffs’ Ex Parte Application failed to seek leave to include a cause of action for IIED. Plaintiffs only requested to include a claim for (1) Negligent Hiring, Supervision, or Retention; (2) Nuisance; (3) Trespass; and (4) Business and Professions Code section 7031. (See Plaintiffs’ Ex Parte Application, dated February 3, 2020, page 9, lines 25-28.) Plaintiffs did not include a cause of action for IIED in their request. As such, Plaintiffs are surreptitiously trying to sneak in an entirely different cause of action. 2. Plaintiffs’ Failed to State a Cause of Action for ITED The FAC fails to state a cause of action for IIED. IIED requires that Plaintiff plead the following: (1) extreme and outrageous conduct that is directed at the plaintiff; (2) the intent to cause or acting in conscious disregard of the possibility of causing emotional distress, (3) severe emotional distress, (4) actual and proximate cause of the emotional distress and (5) consequential damages caused by the emotional distress. (Michaelian v. State Compensation Insurance Fund (1996) 50 Cal.App.4th 1093, 1113-1114). While the right to recover for emotional distress alone, in situations involving extreme and outrageous conduct has been acknowledged, the modern rule is that there is only liability for conduct exceeding all bounds usually tolerated by a decent society. (/d. at 1114). To meet the first requirement, the alleged conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” In addition, “the tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488 (emphasis added).) The FAC involves none of the factors that a court looks to in order to determine if conduct was outrageous. A defendant’s conduct is more likely to be found outrageous if it was in a position or relationship with the plaintiffs that would cause its conduct to have a particularly severe impact on the plaintiffs. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, fn. 2.) Here, the relationship was nothing more than an arms-length relationship between a contractor and a customer. First, there are no facts alleged surrounding the conduct by Defendant, which are so extreme and outrageous that the conduct would exceed all bounds tolerated by a civilized society. Rather, Plaintiff merely alleges, in conclusory terms, that Defendant engaged in outrageous conduct by failing to complete 18 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the subject work, and/or to dispatch skilled individuals to perform the work. (See, FAC, qq 84-85.) Plaintiffs’ FAC fails to allege that Defendant knew or should have known any aspect of their work would this would cause Plaintiff severe emotional distress, and that Plaintiffs have suffered severe emotional distress. Plaintiffs’ FAC is devoid of any specific facts to show that Defendant acted with an intent to harm towards Plaintiffs, much less an intent to cause severe emotional distress. The fact that a defendant’s acts did cause the plaintiffs emotional distress is not sufficient to prove intentional infliction of emotional distress. (Cummings v. Spire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1423) The element of intent is key. The FAC is unclear as to what SaveCal did to indicate an actual intent to cause Plaintiffs any harm or severe emotional distress. Plaintiffs’ entire cause of action consists entirely of vague conclusory statements and fails to state a fact that amounts to extremely outrageous conduct by Defendants. There is certainly nothing alleged by Plaintiff that rises to the level of “shocking the conscience.” H. Eighth Cause Of Action For Nuisance Fails To State A Cause Of Action Pursuant to Civil Code sections 3479 and 3481, a private nuisance is an injurious, indecent or offensive condition, or an obstruction to free use of property, so as to interfere with the comfortable enjoyment of the property. In order to proceed on a private nuisance theory, “the plaintiff must prove injury specifically referable to the use and enjoyment of his or her land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal. App.4th 1036, 1041.) Evidence must be presented to show “an actual physical invasion or damage to themselves or their properties.” (Akins v. Sacramento Mun. Utility Dist. (1992) 18 Cal.App.4th 208, 249.) Specifically, in order to properly plead a cause of action for Private Nuisance, a party must plead that (1) Defendant created a situation that was either (a) harmful to health, or (b) was indecent or offensive to the senses, or (c) was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, (2) That this condition interfered with Plaintiff’s use or enjoyment of his/her land, (3) That Plaintiff did not consent to Defendant’s conduct, and (4) That an ordinary person would be reasonably annoyed or disturbed by Defendants’ conduct, and (5) That Plaintiff was harmed, and (6) That Defendants’ conduct was a substantial factor in causing that harm, and (7) That the seriousness of the harm outweighs the public benefit of Defendant’s conduct. California law recognizes that negligence claims should not be labeled “nuisance” claims simply because real property is involved. (El Escorial Owners’ Assn. v. DLC 19 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plastering, Inc. (2007) 154 Cal. App.4th 133.) In El Escorial, the “overriding” issue was found to be toxic mold contamination due to negligent construction, which the Court found to be analogous to the asbestos claim in City of San Diego. See 154 Cal.App.4th at 1348. “Each [case] involves a traditional tort that should not be litigated under ‘the guise of a nuisance action.’ The Court further held that “[a]ny other result would allow nuisance to ‘become a monster that would devour in one gulp the entire law of tort.” (See id. (citing City of San Diego)). Where allegations in a complaint fail to describe the nuisance and show how the cause of action differs from a negligence cause of action, courts will reject the nuisance claim as a clone for negligence. (El Escorial, supra, 154 Cal.App.4th at 1349.) In the instant action, similar to El Escorial, Plaintiffs allege that a private nuisance existed at the Property due to negligent construction performed by SaveCal that “invaded/interfered Plaintiffs’ right to use and enjoyment” of their Property (FAC, qq 98-99.) Further, Plaintiffs FAC fails to plead specifically how the alleged work on the part of SaveCal constituted a substantial and unreasonable interference with their use and enjoyment of the Subject Property. Plaintiffs’ conclusory allegations are insufficient to plead a cause of action for nuisance and therefore, Plaintiffs’ nuisance cause of action cannot withstand demurrer. (See, E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App.4th 1308, 1319.) Additionally, Plaintiffs’ action for nuisance is essentially a clone of their actions for negligence. Plaintiffs’ FAC fails to describe the nuisance, merely contending that the “negligence and failure to act” “created a dangerous condition” that interfered with Plaintiffs right to use and enjoy” their property. (FAC, qq 98-100.) Plaintiffs compliant expressly ties their nuisance claim to negligence on the part of SaveCal such that it is clear that these causes of action are duplicative of one another. (FAC, {{ 98.) Plaintiffs do not make any attempt to show how their nuisance action is any different from their negligence action. Just as in El Escorial, this is insufficient as a matter of law. I. Ninth Cause Of Action For Trespass Fails To State A Cause Of Action Trespass is an invasion of the plaintiff’s interest in the exclusive possession of land. (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233). The essence of the cause of action for trespass is an “unauthorized entry” onto the land of another. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480.) “Trespass may be ‘by personal intrusion of the wrongdoer or by his failure to 20 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 leave; by throwing or placing something on the land; or by causing the entry of some other person.” (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) In order to plead a cause of action for trespass, the following elements must be set forth: (1) a plaintiff’s ownership or control of the property; (2) that a defendant intentionally, recklessly, or negligently entered plaintiff’s property or caused another person to do so; (3) a lack of permission to enter the property, or acts in excess of the permission; (4) actual harm; and (5) that the defendant’s conduct as a substantial factor in causing the harm. (CACI 2000.) In other words, to adequately plead a cause of action for trespass a Plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674.) Here, Plaintiffs” FAC allegations of fire are insufficient to support a cause of action as the FAC does not allege: (1) that SaveCal was on Plaintiffs’ Property without permission, or (2) that SaveCal caused another person or property to enter Plaintiffs’ Property without permission that resulted in the alleged harm. In fact, the FAC itself alleges that the last time SaveCal was at the Property was approximately three (3) months prior to the subject fire such that SaveCal was nowhere near the property ‘trespass’ at the time of the subject fire. (See, FAC, |] 67, 103-105.) Further, the last time SaveCal was present at or near Plaintiffs’ property, it was with the express permission of Plaintiffs pursuant to the alleged contract at issue in the pleadings. Thus, Plaintiffs’ cause of action for trespass is wholly uncertain and fatally defective such that there are insufficient facts to support a cause of action for trespass and is subject to demurrer. J. Tenth Cause Of Action For Violation Of Business And Professions Code Section 7031(b) Fails To State A Cause Of Action Plaintiffs’ tenth cause of action seeks disgorgement of payments from an unlicensed contractor. In order to prevail on a claim for damages under this provision, Plaintiffs must prove that: (1) The existence of a contract between Plaintiffs and SaveCal such that Save CAl was required to perform services for Plaintiffs; (2) That a valid contractor’s license was required to perform these services; (3) That Plaintiffs paid SaveCal for contractor services that performed as required by the contract. (CACI 4560.) Here, Plaintiffs” FAC fails to state a cause of action for recovery of damages under Business and Professions Code section 7031, subdivision (b) because, notwithstanding any of the defects with Plaintiffs’ 21 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pleadings of the existence of a contract, Plaintiffs’ FAC is absent any facts that the nature of the work and/or service for which SaveCal was retained required a valid contractor’s license. Accordingly, Plaintiffs’ tenth cause of action is insufficiently plead and subject to demurrer. K. Leave To Amend Is Properly Denied The burden is on the plaintiff to demonstrate the manner in which the complaint might be amended. (Assn. of Community Organizations for Reform Now v. State of Cal. (1995) 41 Cal.App.4th 298.) “[W]here the nature of the plaintiff’s claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal. App.4th 445, 459). Plaintiffs’ FAC cannot be cured via amendment of the pleadings and Defendants requests that their demurrer be sustained without leave to amend. III. CONCLUSION Based upon the foregoing analysis, SaveCal respectfully requests this Court sustain this Demurrer, in its entirety without leave to amend. Dated: ~~ March 20, 2020 MOKRI VANIS & JONES, LLP /s/ Richard A. LeVu Todd A. Jones Richard A. LeVu Attorneys for Defendant/Cross- Complainant SAVECAL, LLC 22 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE LaBat, et al. v. SaveCal, et al. Los Angeles County Superior Court Action No. BC712447 I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 4100 Newport Place Drive, Suite 840, Newport Beach, California 92660. On March 20, 2020, I served the foregoing document described as: SAVECAL, LLC’S NOTICE OF HEARING ON DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES in this action as follows: SEE ATTACHED SERVICE LIST [X] BY MAIL: [ ]I deposited such envelope in the mail at Newport Beach, California. The envelope was mailed with postage thereon fully prepaid. [X] As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. I placed the above-named document(s] in an envelope, addressed to the party[ies] listed below. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Newport Beach, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [X] BY EMAIL SERVICE [ 1 VIA EMAIL TRANSMISSION: I caused the document(s) described above to be sent from e-mail address patricia.tonti-mace @mvjllp.com to the persons at the e-mail address(es) listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [X] VIA ONE LEGAL: Pursuant to California Rules of Court, rule 2.251(b)(2), I caused the document(s) described above to be transmitted electronically via ONE LEGAL to the persons at the e- mail address(es) listed above. [X] STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 20, 2020 at Newport Beach, California. (7 Patricia Tonti-Mace 23 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Kamelia Jalilvand Alexia Velissaropoulos JALILVAND LAW CORPORATION 8383 Wilshire Blvd., Suite 445 Beverly Hills, CA 90211 Attorneys for Plaintiffs, Darryl La Bat and Shevette La Bat Tel: (310) 478-5800 Fax: (310) 388-5538 E: kamelia@jlcla.com; Alexia@jlcla.com; Sanaz@jlcla.com; Miriam @jlcla.com John Peterson JHP Law Offices 507 North Central Ave. Glendale, CA 91203 Attorneys for Cross-Defendant, Arclight Electric, Inc. (As Moe 2) Tel: (818) 484-5368 Fax: (866) 986-4483 E-Mail: john@jhpattorneys.com 4822-1318-8279, v. 1 24 SAVECAL, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Court Reservation Receipt | Journal Technologies Court Portal Page 1 of 1 3 Journal Technologies Court Portal Court Reservation Receipt Reservation Reservation ID: 664457108279 Reservation Type: Demurrer - with Motion to Strike (CCP 430.10) Case Number: BC712447 Filing Party: Savecal (Defendant) Date/Time: June 8th 2020, 8:30AM Fees Description Demurrer - with Motion to Strike (CCP 430.10) Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $123.30 Account Number: XXXX3324 < Back to Main = Print Page Status: RESERVED Number of Motions: 1 Case Title: DARRYL LA BAT ET AL VS SAVECAL Location: Stanley Mosk Courthouse - Department 74 Confirmation Code: CR-4A4WJLHMDOQLQCMC6 Copyright © Journal Technologies, USA. All rights reserved. https://portal-lasc.journaltech.com/public-portal/?q=calendar/receipt/664457108279/237123 Fee Qty Amount 120.00 1 120.00 3.30 1 3.30 $123.30 Type: Visa Authorization: 010280 3/20/2020
