Christensen v. The David & Pam Living Trust, et al.

Cross-Complainants allege that Cross-Defendant made false statements that the property was uninhabitable as a pretext to avoid contractual obligations under the lease. They allege that Cross-Defendant’s refusal to occupy the property and attempts to repudiate or terminate the lease without a legal basis constitutes a breach. Under the second cause of action, they allege that Cross-Defendant breached the covenant of good faith and fair dealing by fabricating or exaggerating habitability issues in order to avoid contractual obligations. Because the two causes of action are not based on the same alleged breach, the second cause of action is not superfluous. Thus, the demurrer to the second cause of action is OVERRULED.

Third Cause of Action For Intentional Misrepresentation and Fourth Cause of Action for Negligent Misrepresentation Cross-Defendant argues these fraud claims fail because the Cross-Complaint fails to allege why Cross-Defendant made the alleged misrepresentations to Cross- Complainants or how they justifiably relied on the alleged statements to do anything to their detriment. “The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.]

The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-231.)

Here, Cross-Complainants allege that Cross-Defendant made false representations that the property was uninhabitable intending that Cross-Complainants and third parties rely upon such misrepresentations. Further, they allege that they reasonably relied on the representations in responding to Cross-Defendant’s claims, addressing third party concerns, mitigating damages, and relisting the property. These allegations show intent to induce reliance—that Cross-Defendant intended Cross-Complainants to rely upon the representations to allow him to exit the lease—and allege sufficient facts showing justifiable reliance by Cross-Complainants at the pleading stage. Thus, the demurrer to the third and fourth causes of action is OVERRULED.

Fifth Cause of Action for Libel and Slander Cross-Defendant contends that the libel claim fails because it is based on the conclusory allegation that “Cross-defendant published false statements to third parties that the Property was uninhabitable, moldinfested, unsafe, and/or otherwise dangerous” but the Cross-Complaint fails to set forth what the alleged false libelous statements were or to whom they were made. Cross-Defendant argues the slander claim also fails because Cross Complainants offer no allegations as to the alleged slanderous false oral statement, whether it was publicized to a third party, and how that third party understood the statement. “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ.

Code, § 45.) “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: . . .Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; or Which, by natural consequence, causes actual damage.”

Cross-Complainants allege that Cross-Defendant made false statements to third parties that the property was uninhabitable, mold-infested, unsafe, and/or otherwise dangerous. The defamatory meaning of the alleged statements is readily apparent based on the facts alleged, as false statements regarding habitability or health concerns regarding a landlord’s property on its face could have a tendency to injure that landlord’s business. While the Cross-Complaint only alleges that the false statements were made to third parties without identifying those third parties, Cross-Defendant cites no authority showing that more specificity is required to assert a libel or slander cause of action at the pleading stage.

The Cross-Complaint alleges that Cross- Complainants’ business and rental operations were injured by the statements, which is sufficient to demonstrate that the statements had a tendency to injure their occupation or business. Thus, the demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action for Trade Libel Cross-Defendant argues this cause of action suffers from the same deficiencies as found in the libel and slander claims. For the same reasons as above, the demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action for Intentional Interference with Prospective Economic Advantage Cross-Defendant argues this cause of action fails to allege that Cross-Defendant knew of any existing relationship between Cross-Complainants and any third party who has an existing rental agreement with Cross- Complainants and that Cross-Defendant intentionally acted to disrupt that existing relationship. The elements of a cause of action for intentional interference with prospective economic advantage “are usually stated as follows: ‘ “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” [Citations.]’ ” (Korea Supply Co. v.

Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)

Cross-Complainants allege that they “had prospective economic relationships and probable future rental transactions relating to the Property.” However, they do not allege that they had any existing economic relationship with some third party that had the probability of a future economic benefit. An existing economic relationship with a third party is an essential element of the claim. Because Cross-Complainants have not alleged that element, the demurrer to the seventh cause of action is SUSTAINED with 20 days leave to amend.

Eighth Cause of Action for Declaratory Relief Cross-Defendant argues this cause of action should be dismissed because the requested relief is superfluous, in light of the multitude of other claims seeking relief based upon the same purported facts, and no declaration of potential rights under the lease is necessary because the parties no longer have any relationship related to the lease. Cross-Defendant’s contention that the parties no longer have any relationship under the lease goes beyond the four corners of the Cross-Complaint, which alleges an actual controversy regarding the parties’ respective rights and obligations under the lease.

Thus, this argument lacks merit. Further, the mere fact that a declaratory relief cause of action may seek relief that is the same as those sought under the other causes of action does not support dismissal of the claim. (See Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364 [“ ‘The mere circumstance that another remedy is available is an insufficient ground for refusing declaratory relief . . . .’ ”].) Thus, the demurrer to the eighth cause of action is OVERRULED.

Ninth Cause of Action for Unjust Enrichment Cross-Defendant argues this claim should be dismissed because unjust enrichment is not a cause of action but a claim for restitution. There is a split of authority as to whether “unjust enrichment” is an independent cause of action. (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 [“Although some California courts have suggested the existence of a separate cause of action for unjust enrichment [citation], this court has recently held that ‘[t]here is no cause of action in California for unjust enrichment.’ ”].) The Court will follow Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, which recognized unjust enrichment as a separate claim. Thus, the demurrer to the ninth cause of action is OVERRULED.

Motion to Strike Because the fraud-based causes of action are sufficiently pled, the claim for punitive damages is properly pled. Thus, the motion to strike is DENIED. Moving party to give notice. 106 O’Kane v. Radovich, 2022-01276312 MOTIONS TO BE RELIEVED AS COUNSEL - GRANTED

FBT Gibbons LLP (“Moving Attorney”) moves to be relieved as counsel of record for (1) Defendant Dragica Radovich and (2) Defendant Chaslav Radovich.

The motion is unopposed. Moving Attorney has stated a basis for permissive withdrawal under Rules of Professional Conduct, Rule 1.16. The motion satisfies the notice, declaration, and proposed order requirements of Cal. Rules of Court, Rule 3.1362.