Judge Andrew E. Cooper, Case Number: 23CHCV01382, Date: 2023-10-16 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

MOVING PARTY: Plaintiffs/Cross-Defendants Diana Glasgow; Cole Robert Sliwoski; and Amy Marie Sliwoski (collectively, “Plaintiffs”)

RESPONDING PARTY: Defendant/Cross-Complainant Christopher Eric Reichel, in pro per (“Defendant”)

b. Sustained as to Defendant’s fifth, seventh, and eighth causes of action without leave to amend; and

c. Sustained as to Defendant’s first, third, fourth, and sixth causes of action with 30 days leave to amend.

Plaintiffs are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Furthermore, “each page must be numbered consecutively at the bottom unless a rule provides otherwise for a particular type of document.” (CRC 2.109.)

Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

This is a property dispute in which Plaintiffs, a mother and her two children, allege that plaintiff Diana Glasgow, and Defendant, her close friend, agreed to move into a home located at 22579 Seaver Court, Santa Clarita, California 91350 “with a mutual understanding that both parties would contribute towards the mortgage and maintenance of the premises.” (Compl. ¶¶ 10–11.) Plaintiffs further allege that Defendant continually harassed Glasgow, and on 7/18/22, Defendant served Glasgow with a three-day notice to pay rent or quit, alleging a nonpayment of rent, although no landlord-tenant relationship existed between the parties. (Id. at ¶ 19.) Defendant allegedly continued to accept mortgage payments before filing an unlawful detainer action against Glasgow on 8/2/22. (Id. at ¶ 20.) Plaintiffs further allege that several rooms on the premises were not in compliance with building codes, thereby causing Plaintiffs harm. (Id. at ¶¶ 25–27.) On 3/8/23, Plaintiffs vacated the property. (Id. at ¶ 21.)

On 5/10/23, Plaintiffs filed their complaint, alleging against Defendant the following causes of action: (1) Breach of Oral Agreement; (2) Intentional Infliction of Emotional Distress; (3) Negligence; (4) Intentional Misrepresentation (Fraud); (5) Accounting; (6) Conversion; (7) Declaratory Relief; (8) Americans with Disabilities; (9) California’s Unruh Civil Rights Act; (10) California’s Disabled Persons Act; (11) Constructive Trust; and (12) Quiet Title.

On 7/6/23, Plaintiffs filed the instant demurrer against Defendant’s cross-complaint. On 9/29/23, Defendant filed his opposition.[2] On 10/9/23, Plaintiffs filed their reply.

As a general matter, a party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿However, a “court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” (Fremont Indemnity Co. v. Fremont General Corp., 148 Cal.App.4th 97, 114–115.)

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Plaintiffs demur to Defendant’s entire cross-complaint, arguing that Defendant fails to state facts sufficient to constitute any of the causes of action therein.

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Plaintiffs’ counsel declares that she called Defendant twice and sent him two emails to meet and confer regarding the issues raised in the instant demurrer. (Decl. of Sogol Gohari ¶¶ 3–7.) Counsel states that Defendant responded to her email on 6/28/23.[3] (Id. at ¶ 8.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

Defendant’s first cause of action against Plaintiffs alleges Breach of Oral Agreement. To state this cause of action, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, Defendant alleges that he and Glasgow entered into an oral agreement on 3/30/21, and that “the oral agreement was that each party was to abide by the terms of the agreement.” (Add. B to Cross-Compl., ¶ 37.) Defendant further alleges that he fully performed under the alleged agreement, and that Glasgow breached the agreement by failing to pay Defendant rent and paint the house. (Id. at ¶¶ 38–40.) Defendant alleges that “due to [Cross-]Defendant’s nonperformance and failure to comply with terms of the contract, Cross Plaintiff Christopher suffered a loss of time and money, while incurring overwhelming stress leading to poor results on an annual physical, prescription of anti-depressants, loss of promotional work and attorney fees and costs for both the unlawful detainer case (22CHUD00775) & current civil case.” (Id. at ¶ 41.)

Plaintiffs argue on demurrer that “there is no support for [Defendant’s] claim that the Cross-Defendant’s [sic] breached the agreement nor what damages Cross-Plaintiff has suffered.” (Dem. 9:22–23.)[4] Plaintiffs go on to argue that Defendant has no supporting documentation to support his allegations, and that he has misrepresented the facts of the case. (Id. at 10:1–5.) Plaintiffs then dispute the facts alleged by adding their own factual allegations. (Id. at 10:5–23.)

As Defendant argues, to the extent that Plaintiffs intend to argue the merits of the case by way of their demurrer, this tactic is improper at the demurrer stage. (Def.’s Reply 8:24–25.) “Cross Defendant has turned a blind eye to the very basic laws of demurrer, e.g., alleged defects must be appearing on the face of the complaint and extrinsic evidence must not be used to attack the complaint, unless extrinsic evidence qualifies for a judicial notice.” (Id. at 4:3–6.) The Court agrees, and reiterates that in a demurrer proceeding, the Court is to assume the truth of properly pleaded factual allegations. (E-Fab, Inc., 153 Cal.App.4th at 1315.)

Turning to the facts as alleged in the cross-complaint, Defendant asserts that he has alleged “that: ‘Cross Plaintiff agreed to provide housing, lodging, travel, cash loan and incurred other expenses on the request and behalf of Cross Defendant based on Cross Defendant's promise to pay Cross Plaintiff upon Cross Defendant getting employed and paint interior of home prior to finding employment.’” (Id. at 6:21–24.) However, the Court notes that this allegation is not found within the cross-complaint, nor does Defendant cite to any provision of the cross-complaint where this allegation is made.

Based on the foregoing, the Court finds that Defendant has not sufficiently alleged the general effect or terms of the alleged oral agreement, and therefore has not alleged facts sufficient to support a cause of action for Breach of Oral Contract. Accordingly, the demurrer is sustained as to Defendant’s first cause of action.

Defendant’s second cause of action alleges against Plaintiffs Intentional Infliction of Emotional Distress. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred because of the defendant's alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047–1048.)

Here, Defendant alleges that Glasgow engaged in the following extreme and outrageous conduct: “misled the cross plaintiff as to her intention to care for herself and the premises, calling cross complainant names, moving and/or turning off, stealing battery from home security system, attempting to go through cross plaintiff personal and business materials at cross complainant desk. Yelling at cross plaintiff for entering his kitchen for a glass of water, harassing his hired help.” (Add. B to Cross-Compl., ¶ 46.) Defendant further alleges that Plaintiffs were “fully aware of the above issues, [yet] they disregarded and failed to perform their implied contractual duties.” (Id. at ¶ 50.) Defendant alleges that Plaintiffs’ conduct caused him severe emotional distress in that he “could not sleep for months with Cross defendants on the premises knowing the cross defendant had previously told him she owned a gun and her behavior toward cross plaintiff had become more aggressive.” (Id. at ¶ 51.)

Plaintiffs argue on demurrer that Defendant has not alleged any of the elements for this cause of action. (Dem. 11:12–19.) To the extent that Plaintiffs again improperly argue the merits of the case regarding this cause of action, the Court again disregards these arguments. While Plaintiffs argue that “a failure to perform alleged implied contractual duties, cannot support under any stretch the intent or reckless disregard to cause emotional distress,” this argument is raised for the first time on reply without any citation to supporting legal authority. (Pls.’ Reply 3:9– 10.) In fact, while “a breach of contract is tortious only when some independent duty arising from tort law is violated,” “a tortious breach of contract ... may be found when … one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 553–554.)

The Court therefore finds it sufficient that Defendant’s factual allegations, as stated above, support each element for a cause of action for intentional infliction of emotional distress. Accordingly, the Court overrules the demurrer against Defendant’s second cause of action.

Defendant’s third cause of action against Plaintiffs alleges Negligence. “‘Ordinary negligence’—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753–754 [emphasis added].) To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Defendant alleges that Glasgow “had intimate knowledge of the financial [sic] situation Cross Plaintiff Christopher had been in prior to relocating to California from Nevada,” and “used this knowledge to manipulate and reassure Cross Plaintiff Christopher of her intention to be responsible and pay her bills including monthly rent and take care of her own adult children or teach them to care for themselves.” (Add. B to Cross-Compl., ¶¶ 55–56.)

As Plaintiffs argue, these allegations fall short of stating any of the elements necessary for a cause of action for Negligence. (Dem. 12:18–21.) Moreover, Defendant appears to allege that Plaintiffs’ intentional conduct constitutes such alleged negligence, which cannot qualify as a negligent act. The Court notes that in opposition, Defendant does not address any of his causes of action beyond his first cause of action for Breach of Oral Contract. Based on the foregoing, the Court sustains the demurrer against Defendant’s third cause of action.

Defendant’s fourth cause of action alleges Intentional Misrepresentation (Fraud) against Plaintiffs. “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” (Civ. Code § 1709.) The elements that must be pleaded in a cause of action for fraud are: (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of its falsity (or “scienter”); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.)

Fairness requires that allegations of fraud be pled “with particularity” so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Here, Defendant alleges multiple purported misrepresentations, including that Glasgow gave him “an expectation … the cross defendants children would be moving out after graduating college and no[t] that they would be there forever;” and “that she had quit her job when in truth she had been fired.” (Add. B to Cross-Compl., ¶¶ 62, 72.) “Cross Plaintiff has been put in severe financial jeopardy due to the misleading statements and self serving actions.” (Id. at ¶ 67.)

As Plaintiffs argue, here, Defendant fails to allege that Glasow knew these statements were false when she made them, and furthermore, “it is not clear if and how Cross-Plaintiff relied on this alleged representation and what damages Cross-Plaintiff suffered as a result of this this alleged misrepresentation.” (Pls.’ Reply 4:18–19.) The Court again notes that Defendant does not address this cause of action in his opposition. Based on the foregoing, the Court sustains the demurrer against Defendant’s fourth cause of action.

Defendant’s fifth cause of action alleges an Accounting against Plaintiffs. “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.)

Here, Defendant alleges that he lent Glasgow “a significant amount of funds … including but not limited to $5000.00 for Cross Defendant to rejoin the Set Painters Local union,” but Glasgow “made only a minimal attempt” to repay him. (Add. B to Cross-Compl., ¶¶ 76–77.)

As Plaintiffs argue, here, “to determine the balance owed it is enough [that the sum may be determined by] a simple calculation and therefore, an accounting is not necessary.” (Pls.’ Reply 5:18–19.) The Court again notes that Defendant does not address this cause of action in his opposition. Based on the foregoing, the Court sustains the demurrer against Defendant’s fifth cause of action without leave to amend.

Defendant’s sixth cause of action alleges against Plaintiffs Conversion. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another.” (Fremont Indemnity Co., 148 Cal.App.4th at 119.) “The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) “The tort of conversion applies to personal property, not real property.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295.)

Here, Defendant alleges that he is “the sole named individual on the title, deed, mortgage of the property ands [sic] was prevented from enjoying and relaxing in his own home” by Plaintiffs’ conduct. (Add. B to Cross-Compl., ¶¶ 80–88.) However, as Plaintiffs observe, “Cross-Plaintiff fails to state if Cross-Defendant interfered with his personal property without his consent and which personal property is at stake and fails to indicate recoverable damages.” (Pls.’ Reply, 6:5–8 [emphasis added].)

Based on the foregoing, the Court finds that Defendant has not alleged facts sufficient to support a cause of action for Conversion. The Court again notes that Defendant does not address this cause of action in his opposition. Accordingly, the Court sustains the demurrer against Defendant’s sixth cause of action.

Defendant’s seventh cause of action against Plaintiffs alleges Declaratory Relief. “To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) “There is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366.) A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)

Here, Defendant realleges that Plaintiffs breached the alleged oral agreement, resulting in Defendant bringing an unlawful detainer action against Plaintiffs. (Add. B to Cross-Compl., ¶¶ 97–99.) However, Defendant alleges that he “is in doubt that his rights were are being upheld,” and that “Cross Defendants [’] action(s) have put Cross Plaintiff in jeopardy of losing his home.” (Id. at ¶¶ 100, 102.)

Plaintiffs argue on demurrer that Defendant has not alleged any actual controversy subject to declaratory relief. To the extent that Defendant is concerned about his “rights” in connection with the unlawful detainer action, “since possession was no longer at issue, the Unlawful Detainer was dismissed.” (Dem. 17:24–25.) The Court agrees, and again notes that Defendant does not address this cause of action in his opposition.

Based on the foregoing, the Court finds that Defendant has not alleged facts sufficient to support a cause of action for Declaratory Relief. Accordingly, the Court sustains the demurrer against Defendant’s seventh cause of action without leave to amend.

Defendant’s eighth and final cause of action against Plaintiffs alleges Constructive Trust. “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” (Civ. Code § 2224.) “The case law explains that in order to create a constructive trust as defined in section 2224, three conditions must be satisfied: the existence of a res (property or some interest in the property); the plaintiff's right to that res; and the defendant's acquisition of the res by some wrongful act.” (Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1402.)

Here, Defendant alleges that he “has the sole right to the property with full ownership interest,” and “affirms that all titles, deeds, and related home expense are in his name and his name only and that at no time was Cross Defendant ever told that she was to be an ‘owner’ of the home.” (Add. B to Cross-Compl., ¶¶ 108, 110.)

However, as Plaintiffs observe, “at no point have Cross-Defendants wrongfully acquired the property. To this day the property deed is still under Cross-Plaintiff’s name. At no point have Cross-Defendants had the property deed or any such document transferring ownership to them in any capacity.” (Dem. 18:20–23.) The Court agrees and finds that based on the allegations made in Defendant’s cross-complaint, he has not and cannot allege that Plaintiffs wrongfully acquired the property.

Based on the foregoing, the Court finds that Defendant has not alleged facts sufficient to support a cause of action for Constructive Trust. The Court again notes that Defendant does not address this cause of action in his opposition. Accordingly, the Court sustains the demurrer against Defendant’s eighth cause of action without leave to amend.

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the first demurrer brought against Defendant’s cross-complaint, and Defendant has made no showing that he can successfully amend his pleading. Accordingly, the Court denies Defendant leave to amend his fifth, seventh, and eighth causes of action.

With respect to the first, third, fourth, and sixth causes of action, based on the Court’s liberal policy in granting leave to amend, the Court grants Defendant 30 days leave to amend his cross-complaint so that he may allege facts sufficient to state those causes of action. However, Defendant is cautioned that “following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. … The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

e. Sustained as to Defendant’s fifth, seventh, and eighth causes of action without leave to amend; and

f. Sustained as to Defendant’s first, third, fourth, and sixth causes of action with 30 days leave to amend.

[1] The Court notes that there is no proof of service on file with respect to the cross-complaint.

[2] The Court notes that there is no proof of service on file with respect to the opposition.

[3] Counsel apparently misstates this date as 6/28/21 in her declaration.

[4] As noted above, Plaintiffs have failed to paginate their demurrer. As such, the Court references the document’s page numbers in accordance with the total number of pages in the e-filing.