Filed 8/10/16 Nottbohm v. Thompson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

DANA NOTTBOHM et al.,
                                                                                           F071124
         Plaintiffs and Appellants,
                                                                         (Stanislaus Super. Ct. No. 679028)
                   v.

SEAN TREVOR THOMPSON et al.,                                                             OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Stanislaus County. William
A. Mayhew, Judge.
         Bracamontes & Vlasak and Michael R. Bracamontes for Plaintiffs and Appellants.
         Ropers Majeski Kohn & Bentley, de la Peña & Holiday, Kevin P. Cody, Terry B.
Anastassiou, and Gregory R. de la Peña for Defendants and Respondents.
                                                        -ooOoo-
                                                INTRODUCTION
         Plaintiffs sued several defendants alleging they were responsible for poor
conditions at the Modesto Inn. Some of the defendants owned and operated the Modesto
Inn, and they are not parties to this appeal. Respondents in the present appeal own the
land on which the Modesto Inn was situated but claim to have never possessed, owned, or
controlled the Inn itself.
       The trial court granted summary judgment, and we affirm.
                                          FACTS
       Allegations in the Second Amended Complaint
       In a second amended complaint (hereafter, “the complaint”), plaintiffs/appellants
Dana Nottbohm, Alyssa Nottbohm, John Victorino, and Geanne Welch brought various
claims against several defendants on behalf of themselves and a putative class. Among
the defendants named in the suit were respondents in the present appeal: Sean Trevor
Thompson, Christina Callahan, John E. Curtis, Melanie Thompson Curtis, Melissa
Lindell and Sheldon Thompson1. We will refer to respondents collectively as the
“Landowner Defendants.” The complaint also named Anand Patel dba Modesto Inn,
Chiman Patel, and Jai Jalaram Investment, LLC as defendants. We will refer to these
defendants – who are not respondents in the present appeal – as the “Patel Defendants.”
       Each of the named plaintiffs were rent-paying tenants of the Modesto Inn during at
least a portion of 2012. On information and belief, plaintiffs alleged that each of the
defendants “owne[d] or manage[d]” the Modesto Inn during the events described in the
complaint.
       On May 10, 2012, a building inspector for the City of Modesto issued a notice of
violation in connection with conditions at the Modesto Inn. None of the conditions
mentioned in the notice were corrected, and another notice of violation was issued on
June 20, 2012. The second notice threatened defendants with fines if the conditions were
not repaired or abated. As of the time plaintiffs filed the complaint, the conditions had
still not been repaired or abated.


       1We refer to Sheldon Thompson by his first name to avoid confusion with the
other defendants that share his last name.


                                             2.
       Plaintiffs’ complaint listed several “habitability and safety issues” at the Modesto
Inn which purportedly violated the Modesto Municipal Code, such as exposed wiring,
wood fascia damage, and uneven stairways. The complaint also alleged that the Modesto
Inn was infested with cockroaches and other insects, and that there was water damage
and mold throughout the common areas and the building.
Plaintiffs contended these conditions caused them “personal injury.”
       Plaintiffs’ complaint asserted nine causes of action, labeled: negligence, breach of
the implied warranty of habitability, “habitability tort,” breach of the covenant of quiet
enjoyment, nuisance, unlawful business practices, violation of Civil Code section 1942.4,
violation of Civil Code section 1941.3, and breach of contract.
       Subsequent Administrative Proceedings
       The Modesto Board of Building Appeals ruled on October 11, 2012, that the
Modesto Inn had been in violation of several provisions of the Modesto Municipal Code.
The Board of Building Appeals affirmed the assessment of civil penalties and costs
against the Landowner and Patel defendants.
       Summary Judgment
       The Landowner Defendants moved for summary judgment or, in the alternative,
summary adjudication. The motion was made on the grounds that the Landowner
Defendants only owned the ground on which the Modesto Inn was situated; they never
designed, constructed, created, repaired, maintained, owned, possessed, controlled,
operated, or shared in the income of the Modesto Inn; they have no contractual or
landlord-tenant relationship with the plaintiffs; and they did not cause or contribute to
plaintiffs’ injuries. Plaintiffs opposed the motion.
       The trial court granted summary judgment and plaintiffs appeal.2

       2Plaintiffs assert the order granting summary judgment was appealable under
Code of Civil Procedure section 904.1, subdivision (a)(2). But that provision concerns
orders made after a judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) The order

                                             3.
I.     Standard of Review
       Summary judgment “ ‘shall be granted if all the papers submitted show that there
is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)3 We independently
review an order granting summary judgment, viewing the evidence in the light most
favorable to the nonmoving party. [Citations.] In performing our independent review of
the evidence, ‘we apply the same three-step analysis as the trial court. First, we identify
the issues framed by the pleadings. Next, we determine whether the moving party has
established facts justifying judgment in its favor. Finally, if the moving party has carried
its initial burden, we decide whether the opposing party has demonstrated the existence of
a triable, material fact issue.’ [Citation.]” (Eden Township Healthcare Dist. v. Sutter
Health (2011) 202 Cal. App. 4th 208, 218.)
II.    The Landowner Defendants Carried Their Initial Burden
       A.     Evidentiary Showing
       In their moving papers, the Landowner Defendants adduced evidence of the
following:
       The Landowner Defendants are successors-in-interest to McHenry Village Dental
Center, Inc. which, as of July 1960, owned the property located at 807 Needham Street in
Modesto. In an agreement dated July 1, 1960, McHenry Village Dental Center, Inc.
leased the land to Travelodge Corporation (the “lease”). Defendant Jai Jalaram
Investment, LLC, is the successor-in-interest of the Travelodge Corporation.



granting summary judgment was not an order made after the judgment, and is not made
appealable by Code of Civil Procedure section 904.1, subdivision (a)(2).
       However, the summary judgment itself is appealable under Code of Civil
Procedure section 437c, subdivision (m)(1).
       3 All further statutory references are to the Code of Civil Procedure unless
otherwise stated.


                                              4.
       The lease provided that it was the lessee’s responsibility to “keep and maintain
said premises and the improvements thereon in good condition and repair” and to assume
“all duties and obligations with reference to the demised premises and the buildings and
all improvements … and also the maintenance and operation thereof.”4
       Each of the Landowner Defendants filed declarations stating that they have never
had any legal or business relationship with the Patel Defendants other than what is set
forth in the lease. The same declarations also stated that each of the Landowner
Defendants have never owned, possessed, operated, controlled or maintained the
Modesto Inn. Finally, the declarations stated that the Landowner Defendants had no
relationship with plaintiffs, contractual or otherwise.

       B.     Defendants Satisfied Their Initial Burden in Negating the Element of Duty
              and the Existence of a Landlord-Tenant Relationship with Plaintiffs
       The complaint asserted some causes of action that sound in tort and others that
sound in contract. For the reasons explained below, we conclude the Landowner
Defendants’ evidence – as described above – adequately addressed both types of claims.
The Landowner Defendants’ evidence that they were nonpossessory landlords satisfied
their initial burden of negating plaintiffs’ tort claims. The Landowner Defendants’
evidence that they had no landlord-tenant relationship with the plaintiffs satisfied their
initial burden of negating plaintiffs’ contractual and quasi-contractual claims.
              1. Liability of Landlords Out of Possession
       “Simply put, a landlord should not be held liable for injuries from conditions over
which he has no control.” (Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504, 512.)
Accordingly, the Supreme Court has placed “major importance on the existence of


       4 The reproduction of the lease appearing in the appellate record is of poor quality.
Some of the words in the second quotation are difficult to read. For example, the word
“obligations” is illegible. However, because plaintiffs were the party opposing summary
judgment, we will go by their quotation of these lease terms.


                                              5.
possession and control as a basis for tortious liability for conditions on the land.”
(Preston v. Goldman (1986) 42 Cal. 3d 108, 119.) Indeed, it has long been the law in
California that when a tenant creates a nuisance, “the tenant alone is liable; the landlord is
not, unless he is shown to have participated in the wrongful act by authorizing or
permitting it to be done.” (Kalis v. Shattuck (1886) 69 Cal. 593, 600; see Chee v.
Amanda Goldt Property Management (2006) 143 Cal. App. 4th 1360, 1373.)
Consequently, even “when a landlord has actual knowledge of a dangerous condition, the
courts have recognized that his ability to remove the condition might be hampered by his
tenants’ rights under a lease. Thus, in addition to showing actual knowledge of a
dangerous condition, an injured person must also show that the landlord had the right and
ability to cure the condition. [Citations.]” (Leakes v. Shamoun (1986) 187 Cal. App. 3d
772, 776 (Leakes); see Cal. Civ. Prac. Torts § 16:14.)
       These principles were applied by the Court of Appeal in Mundt v. Nowlin (1941)
44 Cal. App. 2d 414 (Mundt). Defendant Nowlin owned three lots, which he leased to
several codefendants. The codefendants ran a business on Nowlin’s land called “Green
Acres.” Green Acres included “a polo field, riding stables, swimming pool and adjuncts
to which the general public was invited to come and pay admission.” (Mundt, supra, 44
Cal.App.2d at p. 415.) The plaintiffs sued both Nowlin and his lessee codefendants,
alleging they had negligently maintained the premises leading to a tortious injury. (Ibid.)
       Nowlin filed several demurrers, the last of which was sustained without leave to
amend. (Mundt, supra, 44 Cal.App.2d at p. 415.) The plaintiffs argued on appeal that
even though Nowlin did not have control over the defective condition on the property, he
was nonetheless liable by virtue of his lease agreement with the operators of Green
Acres. (Ibid.) The Mundt court disagreed, holding that even if it were assumed “that the
lessees who operated the property were chargeable with negligence, such negligence
cannot be imputed to the landlord. [Citation.]” (Ibid.) “The landlord is not liable for the
negligence of his tenants. [Citation.] Neither is he liable to others for a nuisance created

                                              6.
upon his premises by his tenants who have acquired the leasehold for lawful and proper
purposes, where there was no nuisance or illegal structure upon his land at the time of the
letting. [Citation.]” (Id. at p. 416.)
       Under these principles of law, the Landowner Defendants met their initial burden
in negating the element of duty by adducing evidence they never owned, possessed or
controlled the Modesto Inn. (See Los Angeles Memorial Coliseum Com. v. Insomniac,
Inc. (2015) 233 Cal. App. 4th 803, 830 [duty is required to establish negligence cause of
action]; Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 929931 [habitability claim
sounding in tort turned on whether defendant owed duty]; see also County of Santa Clara
v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 306 [critical question for nuisance
liability is whether defendant created or assisted in the creation of the nuisance].)
              2. Landlord-Tenant Relationship
       Through their declarations, the Landowner Defendants produced evidence they
had no relationship with plaintiffs – contractual or otherwise. This evidence carried the
Landowner Defendants’ initial burden to negate plaintiffs’ claims made under Civil Code
sections 1942.4, 1941.3, breach of contract, implied warranties, and implied covenant
theories.5


       5 See Civil Code section 1942.4, subdivision (b)(1) [“A landlord who violates this
section is liable to the tenant or lessee…” (italics added)]; Civil Code section 1941.3,
subdivision (a) [“the landlord, or his or her agent, of a building intended for human
habitation shall do all of the following…” (italics added); Civil Code section 1942.4,
subdivision (c) [“…the rights and remedies of tenant for a violation of this section by the
landlord…” (italics added)]); Andrews v. Mobile Aire Estates (2005) 125 Cal. App. 4th
578, 590, footnote 9 [“implied covenant of quiet enjoyment runs between … tenants and
the landlord from whom they are renting the property”]; Stoiber v. Honeychuck, supra,
101 Cal.App.3d at pp. 928929 [defendants “may not be held liable under … implied
warranty theory” absent landlord status].
       As pleaded, plaintiffs’ ninth cause of action for breach of contract also required
establishment of a landlord-tenant relationship because the contract that was allegedly
breached was a lease agreement. Consequently, the Landowner Defendants carried their

                                              7.
       Accordingly, the burden shifted to the plaintiffs “to show that a triable issue of one
or more material facts exists ….” (§ 437c, subd. (p)(2).)
III.   Plaintiffs Failed to Raise a Triable Issue of Fact
       A.     Modesto Municipal Code
              1. The Landowner Defendants’ do not Own the Modesto Inn
       In opposition to the Landowner Defendants’ motion, plaintiffs requested the court
take judicial notice of sections 4.12-303 and 9-8.402 of the Modesto Municipal Code.
They contended that the municipal code imposed a duty of care on the Landowner
Defendants.
       Municipal Code sections 4-12.303 and 9-8.402 read, in pertinent part, as follows:

       “The owner of the premises shall maintain the structures and exterior property in
       compliance with these requirements, except as otherwise provided for in this
       Code….” (Modesto Mun. Code, § 9-8.402.)

             “(a) Every owner of real property within the City and every person
       responsible for the management of real property within the City is required to
       manage the property in a manner that does not violate the provisions of this Code.
       The owner shall remain liable for violations thereof regardless of any contract or
       agreement with any third party regarding the management or control of property.

              “(b) Every responsible party or owner of real property in the City is
       required to behave on the property, and supervise anyone on the property, in a
       manner so as not to violate the provisions of this Code.” (Modesto Mun. Code,
       § 4-12.303.)
       The municipal code does provide, as plaintiffs claim, that every “owner of real
property” is required to manage the property in a manner that does not violate the code,


initial burden by negating the existence of any contractual agreement – lease or
otherwise – with plaintiffs.
       To the extent plaintiffs’ sixth cause of action for unlawful business practices was
predicated on the Landowner Defendants’ alleged violation of California Civil Code
sections 1941.1 through 1941.3 and 1942.4, it, too, required a landlord-tenant
relationship.


                                             8.
and the owner remains liable even though a third party may control or maintain the
property. (Modesto Mun. Code, § 4-12.303(a).) We understand this provision to mean
that the owner of a property cannot escape liability under the Municipal Code merely by
hiring a third party (e.g., a property management firm) to control or maintain that
property.6 Applied here, that would mean that if the Landowner Defendants owned the
Modesto Inn, they would be responsible for its compliance with the Municipal Code even
though the Patel Defendants actually controlled and maintained the Inn. However, as we
will explain, the Landowner Defendants did not own or operate the Modesto Inn.
       When a lease addresses the ownership of improvements made by a lessee, its
terms govern. (Realty Dock & Improv. Corp. v. Anderson (1917) 174 Cal. 672,
676677.) That is, the ownership of an improvement constructed by the lessee is “to be
determined from the terms of the lease ….” (Id. at p. 676.)
       Here, the lease provides:

       “(23) Lessee agrees herein that all buildings and improvements erected on the
       leased premises by the Lessee shall remain thereon and that at the expiration of
       this lease, or termination as herein provided, said buildings and improvements
       thereto shall become the property of the Lessor ....” (Italics added.)
       This language reflects that the lessee owns improvements made on the land until
the expiration of the lease, at which time the lessor will become the owner.
       This ownership situation defeats plaintiffs’ theory of liability under the Municipal
Code. While Municipal Code sections 4-12.303 and 9-8.402 do impose liability on
owners even when they contract with third parties, they do not impose liability on
nonowners. And since the Landowner Defendants do not own the Modesto Inn, those
municipal code provisions are inapplicable to them.




       6
       We do not address the propriety of these sections of the Municipal Code, since
we conclude that the Landowner Defendants do not fall within their scope.


                                             9.
              2. Plaintiffs Failed to Request Judicial Notice of Other Municipal Code
                 Provisions
       Additionally, the Landowner Defendants observe that plaintiffs only included
sections 4-12.303 and 9-8.402 of the Municipal Code in their opposition to summary
judgment.
       Plaintiffs’ failure to request judicial notice of other provisions of the municipal
code creates a roadblock in our effort to interpret sections 4-12.303 and 9-8.402.
On appeal, a party may not rely on the contents of a city ordinance or code without
having proven their contents or seeking judicial notice thereof in the trial court. (See
Citizens for Responsible Equitable Environmental Development v. City of San Diego
(2010) 184 Cal. App. 4th 1032, 1044, fn. 12; see also, Marysville Woolen Mills v. Smith
(1918) 178 Cal. 786, 791; Selby Realty Co. v. O’Bannon (1969) 2 Cal. App. 3d 917, 920,
fn. 2; Grant v. Hipsher (1967) 257 Cal. App. 2d 375, 380, fn. 2.)
       Here, plaintiffs requested the trial court take judicial notice of Modesto Municipal
Code sections 4-12.303 and 9-8.402. Those provisions all concern the responsibilities of
a property owner to comply with other provisions of the municipal code. (See Modesto
Mun. Code, §§ 4-12.303, 9-8.402.) Yet, plaintiffs did not request judicial notice of those
other provisions.7 This failure cannot be remedied by relying on the allegations in the
pleadings. (See College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 720, fn. 7
[parties cannot rely on allegations of pleadings to make or supplement evidentiary
showing required in the summary judgment context].)
       It remains possible that other provisions of the Modesto Municipal Code shed light
on the meaning of the word “owner” in sections 4-12.303 and 9-8.402. Yet, plaintiffs
have only provided us with a “fragmentary glimpse” of the Municipal Code, which “does

       7 We do note that the Modesto City’s inspection reports concluded that the
Modesto Inn was in violation of several municipal code provisions and attached the text
of those provisions.



                                             10.
not furnish substantial assistance in the solution of the problem presented.” (Norwalk v.
Auction City, Inc. (1960) 186 Cal. App. 2d 287, 290.)
          B. Theories of Vicarious Liability
       Plaintiffs argue that the Landowner Defendants were liable for the acts and
omissions of their agents and independent contractors: the Patel Defendants.

              1. Plaintiffs Failed to Raise a Dispute of Fact as to Whether the Patel
                 Defendants Were Independent Contractors of the Landowner
                 Defendants
       First, plaintiffs argue that the Landowner Defendants are liable for the negligent
acts and omissions of their alleged independent contractors: the Patel Defendants. A
necessary premise to this contention is that the Patel Defendants actually were
independent contractors of the Landowner Defendants. However, for the reasons
explained below, we conclude plaintiffs failed to raise a dispute of fact as to whether an
independent contractor relationship existed.
       “ ‘[A]n “independent contractor” is generally defined as a person who is employed
by another to perform work; who pursues an “independent employment or occupation” in
performing it; and who follows the employer’s “desires only as to the results of the work,
and not as to the means whereby it is to be accomplished.” ’ ” (Bostrom v. County of San
Bernardino (1995) 35 Cal. App. 4th 1654, 1667 (Bostrom).) To determine whether the
Patel Defendants were independent contractors – and not merely lessees – we “look to
whether the facts are consistent with a typical lessor-lessee relationship, or whether, on
the other hand, they show the hallmarks of an employer-independent contractor
relationship ….” (Id. at p. 1668.) Evidence of an independent contractor relationship
must show (1) the Landowner Defendants hired the Patel Defendants to perform work,
and (2) that the Landowner defendants exercised control or had a right of control over the
result of the work “to an extent inconsistent with a lessor-lessee relationship.” (Id. at
pp. 16681669, italics added.)


                                             11.
       There is no such evidence here. The lease agreement does require the Patel
Defendants to “keep and maintain said premises and the improvements thereon in good
condition and repair….” But even if that provision could be construed as the Landowner
Defendants “hiring” the Patel Defendants to maintain the property with a right of control
over the result of the work, it would not be “to an extent inconsistent with a lessor-lessee
relationship.” (Bostrom, supra, 35 Cal.App.4th at pp. 16681669.)
       Plaintiffs also cite cases like Koepnick v. Kashiwa Fudosan America, Inc. (2009)
173 Cal. App. 4th 32 and Srithong v. Total Investment Co. (1994) 23 Cal. App. 4th 721, in
arguing that the Landowner Defendants had a nondelegable duty to maintain and manage
the Modesto Inn. The rule applied in those cases is not apt. Kopenick and Srithong
observed that “ ‘ “[t]he duty which a possessor of land owes to others to put and maintain
it in reasonably safe condition is nondelegable.” ’ ” (Koepnick, supra, 173 Cal.App.4th
at pp. 3637, quoting Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256,
259–260, italics added; Srithong, supra, 23 Cal.App.4th at p. 726, italics added.) These
cases clearly speak to the duties of someone in possession of the land on which a
dangerous condition exists. The situation here is different, as it involves landlords who
do not possess the Modesto Inn. This distinction is important because a nonpossessory
landlord’s “ability to remove [a dangerous] condition might be hampered by his tenants’
rights under a lease.” (Leakes, supra, 187 Cal.App.3d at p. 776.) That is why such
landlords are not liable for dangerous conditions unless the plaintiff can “show that the
landlord had the right and ability to cure the condition. [Citations.]” (Ibid.; see Cal. Civ.
Prac. Torts § 16:14.)

              2. Plaintiffs Failed to Raise a Dispute of Fact as to Whether the Patel
                 Defendants were Agents of the Landowner Defendants
       Plaintiffs argue that “the lease establishes an agency relationship in and of
itself….” We disagree. While a tenant can in some cases become its landlord’s agent,
something more than a typical lessor-lessee relationship must be shown. (Cf. Bostrom,


                                             12.
supra, 35 Cal.App.4th at pp. 1668–1669; see also Friedman et al., Cal. Prac. Guide:
Landlord-Tenant (The Rutter Group 2015) ¶ 6:79:8. [“[a] tenancy does not itself make
tenants their landlords’ … agents”].)
       Plaintiffs argue that there was evidence that demonstrated an agency relationship
rather than merely a lessor-lessee relationship. Specifically, plaintiffs cite to evidence of
the following:

        “In one instance” Sheldon visited the property to ensure that repairs were being
         conducted. Sheldon knew repairs needed to be performed, and he “went to see
         if they were doing it.” Sheldon did not remember if anyone invited him to the
         property before he came.
        Sheldon testified at a hearing before the Board of Building Appeals.

        Sheldon met with a city councilmember, the Police Chief and the Chief
         Building Official concerning the property. At the meeting, Modesto City
         personnel made it clear to Mr. Patel and Sheldon that the building conditions
         and behavioral issues must improve as soon as possible.

        The Landowner Defendants brought an unlawful detainer action against the
         Patel Defendants for failing to manage the property in accordance with the
         lease agreement.
       “Control is the key characteristic of the agent/principal relationship” (Sonora
Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, 541), and none these facts
cited by plaintiffs give rise to an inference that the Landowner Defendants had the
requisite control over the Patel Defendants. Indeed, the fact that Sheldon testified at an
administrative hearing and met with city officials does not even directly pertain to his
relationship with the Patel Defendants at all. The facts that the Landowner Defendants
later sued the Patel Defendants and that Sheldon inspected the property do not suggest the
Landowner Defendants “controlled” the Patel Defendants.8


       8 Nor does the fact that the lease permits the Landowner Defendants to view and
inspect the property establish control over the allegedly dangerous conditions, their
causes or their remedies. In order to impose liability, a plaintiff must show not only that

                                             13.
IV.    Third Party Beneficiaries
       Finally, plaintiffs claim that they are third party beneficiaries to the lease
agreement between the Landowner Defendants and Patel Defendants. However,
plaintiffs did not plead this theory in the complaint.
       In summary judgment proceedings, the complaint “delimit[s] the scope of the
issues ….” (FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381.) “A
defendant moving for summary judgment need address only the issues raised by the
complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing
papers. [Citation.]” (Government Employees Ins. Co. v. Superior Court (2000) 79
Cal. App. 4th 95, 98, fn. 4.)
       “Third party beneficiary status is a matter of contract interpretation. [Ctiation.]
For that reason, the contract must be set out in the pleadings .…” (California Emergency
Physicians Medical Group v. PacifiCare of California (2003) 111 Cal. App. 4th 1127,
1138.) Specifically, “a plaintiff must plead a contract which was made expressly for his
benefit and one in which it clearly appears that he was a beneficiary ….” (Luis v. Orcutt
Town Water Co. (1962) 204 Cal. App. 2d 433, 441.)
       Here, plaintiffs’ breach of contract cause of action was based on an alleged verbal
lease agreement between plaintiffs and defendants – not on the written lease between the
Landowner and Patel defendants. Because plaintiffs did not allege facts supporting a
third party beneficiary claim, they “cannot successfully resist summary judgment”
(Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal. App. 4th 1116, 1125)
on that theory.
       Moreover, even if plaintiffs had properly pled the third party beneficiary theory
they asserted in opposition to summary judgment, it would not succeed here. Third party


the landlord had the right to inspect the property, but also “the right and ability to cure the
condition. [Citation.]” (Leakes, supra, 187 Cal.App.3d at p. 776.)


                                              14.
beneficiary status depends on “the contracting parties actually [having] promised the
performance which the third party beneficiary seeks.” (Loduca v. Polyzos (2007) 153
Cal. App. 4th 334, 341.) The promise on which plaintiffs rely is the provision in the lease
requiring the Patel Defendants to “keep and maintain said premises and the
improvements thereon in good condition and repair” and to assume “all duties and
obligations with reference to the demised premises and the buildings and all
improvements … and also the maintenance and operation thereof.” But the Landowner
Defendants are not the promisors of those promises, they are the promisees. In other
words, if anyone breached these lease provisions, it is the Patel Defendants, not the
Landowner Defendants. “The point of the third-party beneficiary doctrine is to allow a
third party to enforce, against a promisor, rights running to the third party ….” (Souza v.
Westlands Water Dist. (2006) 135 Cal. App. 4th 879, 893, italics added.)
                                     DISPOSITION
       The judgment is affirmed. Respondents shall recover costs.


                                                                _____________________
                                                                POOCHIGIAN, J.
WE CONCUR:


_______________________
LEVY, Acting P.J.


_______________________
PEÑA, J.




                                            15.