Demurrer (Judge George V. Spanos)


CASE NAME: TANG? vs.? SAUL & JASONS LLC

HEARING ON DEMURRER TO 1st Amended CROSS COMPLAINT of TALLARICO

FILED BY JIMMY TANG

* TENTATIVE RULING: *

The demurrer of cross-defendant Tang to the First Amended Cross-Complaint (?FACC?) is OVERRULED in part and SUSTAINED in part.

First Cause of Action, Negligence:? The demurrer to this Cause of Action is SUSTAINED.?? The FACC alleges that as the property manager for the building, Cross-Defendant Tang owed plaintiff a duty to make sure the premises were fit to rent.? Cross-Complainants have not provided any legal authority that such a duty exists, that it was imposed on Cross-Defendant Tang as the property manager, or that the problem with the utility meter breached such a duty.? The FACC also alleges that Cross-Defendant had an alternate duty to inform Cross-Complainants that the utility box also provided utilities for a portion of the adjoining restaurant.? Cross-complainants have not cited any authority why a case for economic loss premised upon such a duty can proceed as anything other than a claim for concealment, where it is subject to the greater number of elements that must be proved to establish such a claim as opposed to the lesser number of elements that must be proved to establish a claim for negligence.? See CACI 400, 1901; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 413; Weseloh Family Ltd. Partnership v. K.L. Wessel Construction (2004) 125 Cal. App. 4th 152, 173-174; Bock v. Hansen (2014) 225 Cal. App. 4th 215, 227-228.

The court is skeptical that Cross-Complainants can state a claim for simple negligence against Cross-Defendant on the facts alleged to date, but will allow leave to amend this cause of action.

The court OVERRULES Cross-Defendant?s special demurrer that the FACC fails to state whether the contract mentioned is oral or written.? The FACC does not state a claim for breach of contract, so this is not an essential detail.? See 1 Weil & Brown, California Practice Guide:? Civil Procedure Before Trial, ? 7:92, p. 7(I)-41.? Also the FACC refers to the contract in paragraph 20 and attaches it as Exhibit 1.

Second Cause of Action, Intentional Misrepresentation and Third Cause of Action, Negligent Misrepresentation:? The demurrers to these Causes of Action are OVERRULED.? These causes of action now adequately state a cause of action concerning the representations (1) that the business was generating profits equal to 40 percent of the net revenue; and (2) that this was profit after paying rent on the property.? A demurrer cannot be sustained to only a part of a cause of action.? Cornejo v. Lightbourne (2013) 220 Cal. App. 4th 932, 942; Campbell v. Genshlea (1919) 180 Cal. 213, 217.? For purposes of these representations, reliance has been adequately pled.?? The FACC does not seem to have addressed the court?s concern that there be an allegation regarding the amount of Cross-Complainant?s damages.? Therefore, the total compensatory damages in this case for all counts and causes of action shall be no more than $200,000 absent a further amendment with leave of court.? Alternatively, Cross-Complainant may amend these causes of action and the prayer solely for purposes of claiming precise amounts of damages attributable to the two misrepresentations mentioned above.

 

Fourth Cause of Action, Concealment:? The FACC now adequately alleges the basis for a duty to disclose.? See Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.? Whether it can be proven is a matter for summary judgment or trial.? The court incorporates the comments made above about damages and the right to amend.? Compensatory damages on all theories shall be limited to $200,000 in total or Cross-Complainants may amend this cause of action and the prayer solely to segregate out a specific dollar amount of compensatory damages recoverable on the Fourth Cause of Action versus the damages recoverable on the other causes of action.

 

Leave to amend:? Leave to amend is allowed only as stated above.? Cross-Complainants may file a Second Amended Cross-Complaint that retains all of the current causes of action or drops some of them, but may not add any new causes of action absent a motion under CCP ? 473.? See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal. App. 4th 1018, 1023

 

Any amended pleading shall be filed and served on or before June 15, 2015.