Dr. Erasto Gutierrez, MD, Inc. vs. Jolish RSM, LLC

(Complaint, Attachment BC-2.) Plaintiff alleges that this failure to disclose constituted a breach of sections 9.2 and 9.3 of the sublease and section 2.3 of the master lease. (Complaint, Attachment BC-2.) Plaintiff alleges that it suffered damages as a result of the breach of the agreement. (Complaint, Attachment BC-4.)

Moving defendants contend that the cause of action fails to set forth a claim for breach of contract against them because they never entered into a contract with plaintiff. Rather, they contend that they leased the premises to co-defendant Urgentmed Management under a written lease and that it sublet the property to plaintiff under a written sublease. They also contend that the

In its opposition, plaintiff concedes that it is not a party to the sublease. However, it contends that it is a third party beneficiary under the master lease because the sublease incorporates many of the obligations in the master lease. Plaintiff contends that, as a third party beneficiary, it may sue the moving defendants directly.

In reply, moving defendants contend that the sublease expressly provides that nothing in it creates any contract or obligation between them as master landlord and plaintiff as subtenant, citing section 2.3 of the sublease. In fact, the last sentence of section 2.3 of the sublease states that “[e]xcept as set forth in this Sublease, Subtenant will have no rights with respect to the Master Lease and Subtenant acknowledge that nothing contained herein shall be deemed to create any contract or obligations between Master Landlord and Subtenant hereunder.”

To the extent that plaintiff contends that it is a third party beneficiary, Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 383, which it cites, states that “[i]t is settled law that ‘if a lessor has expressly agreed to a sublease, the sublessee is a third party beneficiary to the implied covenant of quiet enjoyment in the original lease and has the right to go directly against the lessor for its breach.’ [Citation.]”

Likewise, Marchese v. Standard Realty & Dev. Co. (1977) 74 Cal.App.3d 142, which is also cited by plaintiff in the opposition, states as follows at pp. 147-148:

The reason for the general rule that a sublessee may not sue the lessor for breach of covenant is that, as between an original lessor and a sublessee, there is no privity of contract. The sublessee is in privity only with his own sublessor. [Citation.] However, if the sublessee has assumed the covenants of the original lease, lessor is a third party beneficiary and has the right to go directly against the sublessee. [Citation.]

Similarly, it is concluded that if a lessor has expressly agreed to a sublease, the sublessee is a third party beneficiary to the implied covenant of quiet enjoyment in the original lease and has the right to go directly against the lessor for its breach. This conclusion rests upon the nature of the implied covenant of quiet

enjoyment. The promise implied from the lease is that the lessor will allow possession and quiet enjoyment of the premises during the term contracted for and will not by his own acts disturb the possession of the tenant. [Citations.] If a lessor has agreed to a sublease, it can only be concluded that he intended to allow the sublessee to peacefully occupy the property. When, as in the instant case, the lease itself contains a provision that the property may be sublet to a named party, in this case Marchese Farms, it follows that Marchese Farms is the beneficiary of lessor's promise to allow Marchese Farms to occupy the property.

Although plaintiff has alleged that the sublease incorporated portions of the master lease, it did not allege that the master landlords expressly agreed to the sublease. Furthermore, it appears that plaintiff may be foreclosed from making such allegations under section 2.3 of the sublease.

The first cause of action for breach of contract fails to set forth a claim against the moving defendants and the demurrer to this cause of action is sustained.

Second cause of action for negligence. The second cause of action is for general negligence and is asserted against all defendants.

In this cause of action, plaintiff alleges that, before entering into “the lease” with it, all defendants “had actual and constructive knowledge of persistent foul sewer odors permeating the Premises, other units and adjacent common areas.” (Complaint, ¶ GN-1.) Plaintiff alleges that, “[d]espite this, [the defendants] failed to disclose the material defect to Plaintiff prior to lease execution” and that “[t]hese are breaches of section 9.2 of the Sublease.” (Complaint, ¶ GN-1.)

Moving defendants contend that this cause of action fails because the allegations do not show that they owed the plaintiff a duty of care, which is the one of the essential elements of a cause of action for negligence. Friedman v. Merck & Co., Inc. (2003) 107 Cal.App.4th 454, 462.

According to Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 278, which is cited by the moving defendants, to prevail in a negligence action, a plaintiff must establish that the defendant owed a legal duty, the defendant breached that duty, and that the breach proximately caused the plaintiff’s damages. Absent a legal duty, any injury is an injury without actionable wrong. Ibid. Furthermore, duty is a question of law. Ibid.

In addition, a person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Archer v. Coinbase, Inc., supra, 53 Cal.App.5th 266, 278, Thus, a plaintiff may not recover in tort based solely on allegations that a defendant. Ibid. A breach of

contract is tortious only when some independent duty arising from tort law is violated. Ibid.

Here, notwithstanding the moving defendants’ status as the master landlord, the second cause of action does not show that they owed plaintiff a duty of care to disclose the existence of the sewer odors to plaintiff before it entered into the sublease with co-defendant Urgentmed Management. Moreover, plaintiff is attempting to enforce contractual provisions rather than some independent duty.

The second cause of action for negligence fails to set forth a claim against the moving defendants and the demurrer to this cause of action is sustained.

Third cause of action for fraud based on intentional misrepresentation and concealment. The third cause of action is for fraud based on intentional misrepresentation and concealment. Like the first two causes of action, it is asserted against all defendants.

Also, like the first two causes of action, the third cause of action refers to all defendants, i.e., the moving defendants and co-defendant Urgentmed Management, collectively as “the landlord” when, in fact, the sublease and master lease that are attached to the complaint show that moving defendants are the master landlord and parties to the lease with co-defendant and that the co-defendant is a party to the sublease with plaintiff. In spite of this distinction, plaintiff alleges that “the landlord” made certain representations with respect to the leasing of the premises and that they failed to disclose known defects in the property to plaintiff. (See Complaint, ¶ FR-2.)

Because the cause of action fails to distinguish between the moving defendants and the co-defendants, it is not pled with the specificity required of a claim for fraud. Specifically, it is unclear as to who exactly made the purported representations, how the representations were made, and when they were made. It also does not provide any information as to how defendants would have owed plaintiff a duty to disclose any defects in the property.

The third cause of action for fraud fails to set forth a claim against the moving defendants and the demurrer to this cause of action is sustained. 6 26-01568888 Preliminary Injunction

Howden US Services, Plaintiffs Howden US Services, LLC, Howden US Specialty, LLC and LLC vs. Acrisure of Patrick Thomas’ request for a preliminary injunction is DENIED. California, LLC Likelihood of prevailing on the merits

The burden is on the party “seeking injunctive relief, to show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481 [citation omitted].) “In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the