Demurrer and Motion to Strike (Judge Nathan Scott)

Demurrer

Cross-defendant Colette Denise Daniels’ demurrer sustained as to the 2nd-4th causes of action and otherwise overruled. (See Code Civ. Proc. § 430.10, subd. (e).) Cross-complainant SIB-Monaco LLC shall have leave to file and serve an amended cross-complaint within 15 days. 1st cause of action, breach of contract. The cross-complaint states facts sufficient to constitute a cause of action. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; see also X-Compl. ¶¶ 6-10.) It adequately alleges damages, despite Daniels’ invocation of the prepaid rent. (Compare Reply at p. 5 with X-Compl. ¶ 10.) If nothing else, SIB-Monaco’s potential liability to return the prepaid rent is damage enough. 2nd cause of action, breach of implied covenant. The crosscomplaint fails to state facts sufficient to constitute a cause of action.

“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.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) SIB-Monaco cannot base this claim on “the how and why CrossDefendant” breached the lease. (Opp. at p. 7.) Outside of insurance cases, California does not recognize a cause of action for bad faith breach of contract. (See Applied Equipment Corp.
v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515-516.)

3rd-4th causes of action, fraud/negligent misrepresentation. Neither cause of action states facts sufficient to allege these claims with specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 645 [fraud]; Small v. Fritz Cos Inc. (2003) 30 Cal.4th 167, 184 [negligent misrepresentation].)

“This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Lazar, supra, 12 Cal.4th at p. 645.) The cross-complaint does not identify how or by what means the representations were made (”represented” is insufficient; something akin to “said” or “told” or “wrote” or “emailed” is required). Nor does it identify to whom the representations were made; cross-complainant is an entity that must operate through natural persons.

Moreover, the negligent misrepresentation claim appears to be improperly based on misrepresentations of Daniels’ own intentions. (See Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 458 [a false promise “does not support a claim for negligent misrepresentation”].)

Motion to Strike

The motion to strike is denied as moot given the ruling sustaining the demurrer.