Case Name:    Peter Eng v. Thomas Ryd, et al.

Case No.:        17CV305359

  • Demurrer to Second Cause of Action in Plaintiffs’ Complaint
  • Motion to Strike and to Transfer Case to Small Claims Court; and Request for Attorneys’ Fees and Expenses Pursuant to C.C.P. §396b

Factual and Procedural Background

Plaintiff Peter Eng (“Eng”) alleges that on or about March 28, 2014, a written agreement was made between Eng and defendants Thomas Ryd and Hilde Ryd (collectively, “Ryds”). (Complaint, ¶BC-1 and Exh. A.)  On or about August 2016, defendant Ryds breached the agreement by vacating and abandoning the premises, failing to pay the rent from October 1, 2016 and each month thereafter, [and] causing damage to the premises beyond ordinary wear and tear. (Complaint, ¶¶BC-2 and GN-1.)

On January 19, 2017, plaintiff Eng filed a Judicial Council form complaint against the defendant Ryds asserting causes of action for: (1) Breach of Contract; and (2) General Negligence.

On March 10, 2017, defendant Ryds filed the two motions now before the court: (1) a demurrer to the second cause of action; and (2) a motion to strike and transfer case to small claims court and request for attorneys’ fees and expenses.


  1. Defendant Ryds’ demurrer to the second cause of action [general negligence] is SUSTAINED.

In the second cause of action, plaintiff Eng alleges defendant Ryds, “while tenants of the plaintiff at the premises located at 669 Partridge Avenue, Menlo Park, CA, (“Premises”) so negligently leased, occupied and failed to maintain the premises so as to cause damage to the premises beyond ordinary wear and tear, so as to cause damage to the Premises, and costs and expense to the plaintiff in the amount of $4,600.90, less defendants[‘] security deposit of $2,500 for a net amount of damages of $2,100.90.” (Complaint, ¶GN-1.)

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.)  “The elements of a cause of action for negligence are well established.  They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; see also CACI, No. 400.)

“The issue of whether a legal duty exists is an issue of law, not an issue of fact for the jury.”  (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)  “A duty of care may arise through statute, contract, the general character of the activity, or the relationship between the parties.”  (The Ratcliff Architects v. Vanir Constr. Management, Inc. (2001) 88 Cal.App.4th 595, 604.)

Defendant Ryds demur to the second cause of action on the basis that it is a restatement of the first cause of action for breach of contract.  Among other decisions, defendant Ryds cite Erlich v. Menezes (1999) 21 Cal. 4th 543, 551 where the court held that a contractual obligation may create a legal duty and the breach of that duty may support an action in tort.  However, the court explained that conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.  (Id.)  Essentially, defendant Ryds make the same argument here.  Defendant Ryds contend the second cause of action does not state any duty independent of their contractual duties.

Although not cited by either party, the court finds the following discussion from Old Republic Ins. Co. v. Superior Court (1998) 66 Cal.App.4th 128, 149–50 to be relevant:

First, waste is defined as “an unlawful act or omission of duty on the part of a tenant, resulting in permanent injury to the [property].” (61 Cal.Jur.3d 591, Waste, § 1; Southern Pacific Land Co. v. Kiggins (1930) 110 Cal.App. 56, 60–61, 293 P. 708.)  In order to state a cause of action for waste, a plaintiff must plead and prove that the defendant was under a duty to preserve and protect the property involved. (61 Cal.Jur.3d 591, Waste, § 3.) “An individual owner in fee simple absolute may use property in any lawful way he desires, but the owner of a lesser estate, or any other legal possessor of land, must use it in such a manner as to avoid waste.” (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 420, p. 604.) “To constitute waste, there must be an injury to the inheritance ( [Civ.Code §] 818), substantially depreciating the market value of the property.” (Id. at § 421, p. 605.) As the Supreme Court has explained, “ ‘[W]aste is conduct (including in this word both acts of commission and of omission) on the part of the person in possession of land which is actionable at the behest of, and for protection of the reasonable expectations of, another owner of an interest in the same land…. Thus, waste is, functionally, a part of the law which keeps in balance the conflicting desires of persons having interests in the same land.’ [Citation.]” (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 597–598, 125 Cal.Rptr. 557, 542 P.2d 981; see also Smith v. Cap Concrete, Inc.  (1982) 133 Cal.App.3d 769, 775–776, 184 Cal.Rptr. 308.)

Thus, to the extent that the Schlesingers were under a duty not to commit waste, it could only be based upon the written lease. It was by that instrument that the Schlesingers had the necessary interest in the land upon which their exposure for waste was based. It was the breach of that lease which was the subject of the first two counts in the underlying action. “Where the sole basis of the insured’s potential liability is a claim that the insured breached a contractual duty, it cannot be transformed into a breach of a duty imposed by law simply by an allegation that the breach was also tortious, …” (Wilmington Liquid Bulk Terminals, Inc. v. Somerset Marine Inc., supra, 53 Cal.App.4th at p. 194, 61 Cal.Rptr.2d 727; see also Stanford Ranch, Inc. v. Maryland Cas. Co., supra, 89 F.3d at pp. 624–625, 627; Fragomeno v. Insurance Co. of the West (1989) 207 Cal.App.3d 822, 831, 255 Cal.Rptr. 111; Insurance Co. of the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1317, 241 Cal.Rptr. 427; disapproved on another ground in Buss v. Superior Court (1997) 16 Cal.4th 35, 50, fn. 12, 65 Cal.Rptr.2d 366, 939 P.2d 766.) Thus, the action for waste, depending as it does on the lease contract for the creation of the duty which was breached, may be considered as a claim upon a contract.

Similarly here, paragraph 12 of the written agreement between the parties (incorporated by reference into the complaint) creates an obligation upon defendant Ryds not to cause damage or destruction to the property based on abuse or negligence.  However, because this legal obligation is based on the written agreement, plaintiff must identify some duty independent of the contract in order to maintain a cause of action for negligence.

Accordingly, defendant Ryds’ demurrer to the second cause of action in plaintiff Eng’s complaint is SUSTAINED with 10 days’ leave to amend.

  1. Defendant Ryds’ motion to strike is DENIED.

Code of Civil Procedure section 436 states that the “court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc. §437.)

“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil &Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶7:168, p. 7(I)-73 citing Code Civ. Proc., §437.)  “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’  Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.”  (Id. at ¶7:169, p. 7(I)-64.)  “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)  “In ruling on a motion to strike, courts do not read allegations in isolation.”  (Clauson, supra, 67 Cal.App.4th at p. 1255.)

Defendant Ryds move to strike plaintiff Eng’s allegation that he is entitled to damages of $33,700 (Complaint, ¶10(a)) and that he suffered damages for “rent in the amount of $31,600 for the period from October 1, 2016 and for the balance of the lease term through May 31, 2017.” (Complaint, ¶BC-4.)  Defendant Ryds contend the allegation is false because the written lease agreement, attached to the complaint and incorporated by reference[1], only had a fixed term from May 1, 2014 through April 30, 2015.  Thereafter, according to defendant Ryds, the lease became a month-to-month tenancy.  Defendant Ryds acknowledge their April 25, 2016 letter agreement to modify the monthly rental rate which stated, “$3,950 monthly rent shall remain in effect until May 31, 2017.  All other terms and conditions of the Residential Lease-Rental Agreement we signed and dated March 28, 2014 will remain in effect.”

In opposition, plaintiff Eng contends the subsequent letter modification of the agreement modified not only the monthly rate, but extended the term of the tenancy until May 31, 2017.  At the very least, plaintiff contends the contract language is ambiguous and thus, cannot be decided by a motion to strike.  “If a contract set out in the complaint (or attached as an exhibit) is ambiguous, plaintiff’s interpretation must be accepted as correct in testing the sufficiency of the complaint: ‘A general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.’”  (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2016) ¶7:48.25, p. 7(I)-29 citing Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 (Aragon).)

In Aragon, the court wrote, “Where an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement.  So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement.” (Aragon, supra, 231 Cal.App.3d at p. 239.)  “Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.  While plaintiff’s interpretation of the contract ultimately may prove invalid, it was improper to resolve the issue against her solely on her own pleading.  In ruling on a demurrer, the likelihood that the pleader will be able to prove his allegations is not the question.” (Id.; internal quotations removed.)

The same principles apply on a motion to strike which, as discussed above, challenges matters that appear on the face of the pleading.  “Unless a court can ‘to a certainty and with sureness by a mere reading of the document, determine which is the correct interpretation . . . extrinsic evidence becomes admissible as an aid to interpretation.’”  (Denver D. Darling v. Controlled Environments Construction, Inc. (2001) 89 Cal.App.4th 1221, 1236.)  “Where the meaning of the words used in a contract is disputed, the trial court must provisionally receive any proffered extrinsic evidence which is relevant to show whether the contract is reasonably susceptible of a particular meaning.  [Citation omitted.]  Indeed, it is reversible error for a trial court to refuse to consider such extrinsic evidence on the basis of the trial court’s own conclusion that the language of the contract appears to be clear and unambiguous on its face.  Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible.” (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1350.)

Here, the court cannot determine with certainty and sureness the correct interpretation of the language found in the April 25, 2016 letter agreement.  As such, the court cannot decide this issue on a motion to strike.  Accordingly, defendant Ryds’ motion to strike is DENIED.

  • Defendant Ryds’ motion to transfer case to small claims court and request for attorneys’ fees and expenses pursuant to Code of Civil Procedure section 396b is DENIED.

In view of the court’s ruling above, defendant Ryds’ motion to transfer case to small claims court and request for attorneys’ fees and expenses pursuant to Code of Civil Procedure section 396b is DENIED.

[1] Plaintiff Eng’s request for judicial notice of the complaint is GRANTED insofar as the court takes judicial notice of the existence of the document, but not necessarily the truth of any matters contained therein. (See Evid. Code, §452, subd. (d);  People v. Woodell (1998) 17 Cal.4th 448, 455.)