Patterson vs. Nayebaziz

A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail, which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificity in pleading evidentiary facts. However, bare

conclusions of law are insufficient. (Code Civ. Proc., §§ 425.10(a), 459; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Doheny Park Terrace HOA v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-99; Berger v. California Insurance Guarantee Assn (2005) 128 Cal.App.4th 989, 1006.)

3. Uncertainty

Defendants’ notice of demurrer contends that the Cross-Complaint is uncertain under Code Civ. Proc. § 430.10(f), but Defendant does not support this contention with any argument in the memorandum of points and authorities.

A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v.

Cariss (1990) 224 Cal. App. 3d 905, 908.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).)

A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616.)

The court finds that the Complaint adequately pleads factual allegations against Defendants and is not so poorly pleaded that Defendants cannot discern which issues must be admitted or denied. Thus, the demurrer for uncertainty is overruled.

4. Failure to State Sufficient Facts

As to moving Defendants, the Complaint asserts causes of action for 4) negligence and 7) unfair business practices.

a. Negligence

The elements to a cause of action for negligence are: (1) the existence of a duty, (2) breach, (3) causation, and (4) damages. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.)

Defendants contend that Plaintiffs have not alleged facts demonstrating that Defendants had any control over or a duty to maintain the individual unit at the Property. However, the Complaint alleges that Defendants “owned, controlled, and/or managed the PREMISES.” (Complaint, ¶ 50.) Defendants’ dispute with this allegation is an issue of fact that cannot be resolved at the demurrer stage.

Further, the Complaint alleges that Defendants acted as agents of each of the other Defendants. Generally, “[a]n allegation of agency is an allegation of ultimate fact that must be accepted as true for the purposes of ruling on a demurrer.” (City of Indus. v. City of Fillmore (2011) 198 Cal.App.4th 191, 212.) Thus, the court overrules the demurrer as to this cause of action.

b. Business & Professions Code § 17200

The Unfair Competition Law codified in Business and Professions Code § 17200, prohibits any “unlawful, unfair or fraudulent business act or practice.” A homeowners association is not a “business” for purposes of the UCL where the association does not participate as a business in the commercial market and the dispute is not related to any commercial activity. (That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419, 1426.) In Alders, the court rejected the idea that a homeowners association could be considered a business under the UCL, where plaintiff was attempting to challenge election-related activities conducted by the HOA. (Id. at 1427[“applying the UCL to an election dispute would simply make no sense”].)

Here, however, the Complaint alleges that Defendants “are engaged in the business of renting residential premises to the public.” Defendants dispute the veracity of this statement, but the Court must accept as true the allegations properly pleaded in the Complaint

Thus, the court overrules the demurrer to this cause of action.

5. General Principles on a Motion to Strike

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or 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. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). A motion to strike can also strike legal conclusions. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.

Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010). The allegations of the complaint are presumed true; they are read as a whole and in context. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.

A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively

(CRC Rule 3.1322(a).) Here, the notice of motion specifies the portions of the Complaint it seeks to strike. Defendants seek to strike the following:

1. Paragraph 13, Page 4:26-27: "The LEASE has a mandatory mediation clause and a prevailing party attorney's fees provision."

2. Paragraph 8, Page 17:21-22: "For attorney's fees pursuant to the LEASE, applicable causes of action, and California Code of Civil Procedure section 2021.5."

6. Merits of Motion to Strike

Attorney’s fees are recoverable by a party only if specifically provided for by a statute or law, or if authorized by an express agreement between the parties. (Code Civ. Proc., §§ 1021, 2033.5, subd. (a)(10)(A)-(C); Civ. Code, § 1717; see also Nasser v. Superior

Court (1984) 156 Cal.App.3d 52, 56 (“Absent an agreement or statute, a party is generally precluded from recovery of attorney fees.”); Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127.)

A plaintiff is not required to specifically plead its request for attorneys’ fees under Section 1021.5, and a court may not strike such a request based on a failure to plead its basis. (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497 (“As there was no requirement they be pled at all, the trial court erred in striking [the plaintiff’s] prayer for attorney’s fees [under Section 1021.5] based on a failure to adequately plead their basis ....”).

Defendants seek to strike Paragraph 13, Page 4:26-27: “The LEASE has a mandatory mediation clause and a prevailing party attorney's fees provision.” Defendants have not carried their burden of showing that this sentence is irrelevant, false, or improper. (Code Civ. Proc. § 436.) The fact that Defendants may not be signatories to the lease does not make this sentence false.

Defendants also seek to strike Paragraph 8, Page 17:21-22: “For attorney’s fees pursuant to the LEASE, applicable causes of action, and California Code of Civil Procedure section 2021.5.” Defendants have not shown that this request is irrelevant, false, or improper. (Code Civ. Proc. § 436.)

The motion to strike is denied.

Plaintiffs shall give notice of this ruling.

8 Kimes vs. Rich TENTATIVE RULING:

Motion to Bifurcate Trial

For the reasons set forth below, Defendants Rayco Construction Enterprises, Inc. dba Rayco Exteriors; T.S.G. Independent Property Management, Inc.; Beacon Hill Terrace Condominium Homeowners Association; Rich Carroll; and Design Build Associates, LLC’s motion to bifurcate trial such that the issue of liability is tried before the issue of damages is GRANTED.

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order ... that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case ....” (Code Civ. Proc, § 598.) “The court, in furtherance of