Makoff vs. Casa Monterrey, LLC

A. Fifth Cause of Action for Fraud/Concealment “The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) plaintiff sustained damage as a result of the concealment or suppression of the material fact.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40; see also Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“A duty to disclose a material fact can arise if (1) it is imposed by statute; (2) the defendant is acting as plaintiff’s fiduciary or is in some other confidential relationship with plaintiff that imposes a disclosure duty under the circumstances; (3) the material facts are known or accessible only to defendant, and defendant knows those facts are not known or reasonably discoverable by plaintiff (i.e., exclusive knowledge); (4) the defendant makes representations but fails to disclose other facts that materially qualify the facts disclosed or render the disclosure misleading (i.e., partial concealment); or (5) defendant actively conceals discovery of material fact from plaintiff (i.e., active concealment).” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40.)

“Circumstances (3), (4), and (5) presuppose a preexisting relationship between the parties, such as “between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40.) “All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 41 [citing LiMandri v.

Judkins (1997) 52 Cal.App.4th 326, 337].) “Such a transaction must necessarily arise from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 41 [citing Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 312].)

Fraud causes of action must be pled with specificity. “...This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom and by what means the representations were tendered.”’ (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) With respect to fraudulent concealment claims, however, a plaintiff is not required to allege with the usual detail required in connection with fraud claims based on affirmative representations. In Vega v. Jones, Day, Reavis & Pogue (2004)121 Cal.App.4th 282, the Court of Appeal found that the trial court had improperly sustained a demurrer to a concealment cause of action on the ground the cause of action on the ground plaintiff had failed to allege the cause of action “with the requisite degree of specificity.” (Id., 296.)

The court held that “[t]he pertinent question in a concealment case is not who said what to whom,” (Ibid.) Rather the question is whether the defendant intentionally concealed something from plaintiff “so that they would proceed with the transaction.”

Additionally, “[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, superseded by statute on other grounds in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235.) Less specificity is required for fraud claims when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356.)

Here, the Court finds that Plaintiff sufficiently alleges a fraudulent concealment cause of action. In particular, paragraphs 3-7, 12, 13, 16, 17, 23, 76-93 support Plaintiff’s cause of action for fraudulent concealment. Plaintiff allegations are sufficiently specific and The demurrer to the fifth cause of action for fraudulent concealment is OVERRULED.

C. Sixth Cause of Action for Negligent Misrepresentation “The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)

Plaintiff alleges that Venessa Romo made misrepresentations about the habitability of the apartment without reasonable grounds for believing that the apartment was habitable with the intent to induce Plaintiff to sign the lease the for apartment. (SAC, ¶¶ 13-14 and 94-96.) Plaintiff alleges she justifiably relied on Romo’s representations and was damaged physically, emotionally, and financially from the misrepresented condition of the apartment. (SAC, ¶¶ 97-122.) The recommendation is to OVERRULE the Demurrer to the sixth cause of action for negligent misrepresentation.

D. Seventh Cause of Action for Intentional Infliction of Emotional Distress “The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273, as modified on denial of reh’g (May 15, 2023); Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

“Additionally, [i]t must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273, as modified on denial of reh’g (May 15, 2023) [internal quotations omitted].) “The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.” (Ibid.)

Importantly, “whether conduct is ‘outrageous’ is usually a question of fact.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1274, as modified on denial of reh’g (May 15, 2023).) “[T]he standard for judging outrageous conduct does not provide a ‘bright line’ rigidly separating that which is actionable from that which is not.” (Ibid.) “Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.” (Ibid.) “The process evoked by the test appears to be more intuitive than analytical. ...” (Ibid.)

“A defendant’s conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) “Liability for IIED does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” (Ibid.) “Malicious or evil purpose is not essential to liability for IIED.” (Ibid.) “California’s definition of extreme and outrageous conduct is based on comment d to section 46 of the Restatement Second of Torts.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

The restatement states: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” (Ibid. [citing Rest.2d Torts, § 46, com. d, p. 73].)

Here, Plaintiff sufficiently alleges an intentional infliction of emotional distress cause of action. Plaintiff has alleged that Defendant “knowingly placing Plaintiff into and keeping Plaintiff in an unsafe, moistureimpacted environment while minimizing the condition and refusing appropriate relief after mold concerns were raised—was extreme and outrageous and done with the intention to cause, or in reckless disregard of the probability of causing, severe emotional distress.” (SAC, ¶ 128.) The allegations establish that Defendant acted with reckless disregard to the probability of causing Plaintiff emotional distress and injury given the probably physical and emotional impact mold exposure and the process of determine what is the root cause of the health problems stemming from mold exposure.

For purposes of the demurrer, the Court finds that intentionally exposing Plaintiff to toxic and uninhabitable conditions goes beyond all possible bounds of decency. (See SAC, ¶¶ 123-138.) The demurrer to the seventh cause of action of intentional infliction of emotional distress is OVERRULED.

II. MOTION TO STRIKE Civil Code section 3294 states: “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.

With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Importantly, corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.” (Id.) “But the law does not impute every employee’s malice to the corporation.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “Instead, the punitive damage statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Id.)

“Managing agents” are employees who “exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy,” such as those “decisions that set these general principles and rules.” (Id., at pp. 167-68; Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714-15.) “To support an award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff ‘must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

Here, Plaintiff has pleaded facts sufficient to support a punitive damages cause of action. Plaintiff alleged that Venessa Romo was a managing agent acting on behalf of Defendant when she intentionally deceived Plaintiff regarding the habitability of the apartment. Plaintiff alleges that Romo acted with a conscious disregard of Plaintiff’s safety when representing that the apartment at issue was habitable when she knew otherwise. (See e.g., SAC, ¶¶ 5-7, 13-15, 77-79, 84-93, 95-97, 103-104, 119-120, 124-128, and 135-137.)

The Court acknowledges that Plaintiff did not file an opposition to the Motion to Strike. Still, the SAC contains facts sufficient to support the claim and the Court will resolve the motion on the merits. The Motion to Strike is DENIED. Defendant shall file an answer to the operative Second Amended Complaint within 20 days of notice of this ruling. Plaintiff to give notice

103 Hill vs. Hyundai Motor America

25-01479317 1. Demurrer to Complaint – Off Calendar FAC filed 2. Motion to Strike Portions Of Complaint – Off Calendar FAC filed 3. Case Management Conference – Off Calendar.

104 Team Koncepts General Contractors, Inc. vs. A&G Real Estate and Construction Services, Inc.

24-01376389 Motion to Be Relieved as Counsel of Record Sean Dowsing and Bayan Salehi of Kahan Feld LLP move to be relieved as counsel of record for A&G Real Estate and Construction Services, Inc. dba SCG West Development. The Motion to Be Relieved as Counsel of Record is DENIED, without prejudice. The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. (California Rules of Court, rule 3.1362(d).)