Judge: Anne Richardson, Case: 22STCV24759, Date: 2023-04-03 Tentative Ruling

Case Number: 22STCV24759 Hearing Date: April 3, 2023 Dept: 40

Superior Court of California

County of Los Angeles

Department 40

STACEY SANTOS and ARIS CASTELLANOS,

Plaintiff,

CLINT COONS, ESQ., SIGNATORY TRUSTEE, TELBROWN STATUTORY TRUST, JAGARN, LLC, A LIMITED LIABILITY COMPANY, JEANNINE BREVIK, MANAGER OF JAGARN, LLC, WILMAN BLADIMIR OLMEDO CALDERON, JEANNINE MARIE BREVIK, ALEX OLMEDO, ADAM MICHAEL SACKS, JAMIE LEE, EDDIE DE LA FE, and Does 1 through 50,

Defendants.

Case No.: 22STCV24759

Hearing Date: 4/3/23

Trial Date: N/A

[TENTATIVE] RULING RE:

Plaintiffs Stacey Santos and Aris Castellanos’s Motion to Reconsider Special Motion to Strike Under Anti-SLAPP.

MOVING PARTY: Plaintiffs Stacey Santos and Aris Castellanos.

OPPOSITION: Defendants Michael Sacks and Jamie Lee.

REPLY: None.

Plaintiffs Stacey Santos and Aris Castellanos sue a number of Defendants for their alleged participation in a scheme to wrongfully evict Plaintiffs from their rental unit in a two-dwelling residential property by means of a May 12, 2022 unlawful detainer action (LASC Action No. 22CHUD00401) filed during a period of COVID-19 eviction protections and under false pretenses.

Plaintiffs now seek reconsideration of the Court’s November 8, 2022 ruling on a September 13, 2022 anti-SLAPP motion by Defendants Adam Sacks and Jamie Lee against the operative Complaint’s second and seventeenth through twenty-first causes of action, as alleged against these Defendants alone, which the Court granted in full.

After review, the Court (1) GRANTS reconsideration of the November 8, 2022 ruling, (2) GRANTS, in Part, the anti-SLAPP motion, specifically as to the Complaint’s eighteenth, twentieth, and twenty-first causes of action, only as directed against Defendants Sacks and Lee, and (3) DENIES, in Part, the anti-SLAPP motion, specifically as to the Complaint’s second, seventeenth, and nineteenth causes of action, only as directed against Defendants Sacks and Lee.

Background

Plaintiffs Stacey Santos and Aris Castellanos sue a number of Defendants—including Defendants Adam Michael Sacks and Jamie Lee—for their alleged participation in a scheme to wrongfully evict Plaintiffs from their rental unit in a two-dwelling residential property—unit which at all relevant times lacked a Certificate of Occupancy, thus making any attached Lease void—by means of a May 12, 2022 unlawful detainer action (LASC Action No. 22CHUD00401) (hereafter “Underlying Action” or “Unlawful Detainer Action”) filed during a period of COVID-19 eviction protections and under false pretenses, i.e., eviction for cause through alleged breach of lease by owning dogs on the Subject Property where the property manager was aware of the dogs’ presence and abided the same as of the date Plaintiffs moved in to the Subject Property on May 1, 2019, and where the Underlying Action was dismissed without prejudice by the owners of the Property (either Defendants Wilman Olmedo and Jeannine Brevik or the TelBrown Statutory Trust) on June 27, 2022.

Plaintiffs specifically sue Defendant Sacks—attorney who initiated and maintained the Unlawful Detainer Action against Plaintiffs on behalf of the Subject Property’s owner(s)—and Defendant Lee—process server who avers to have served on Plaintiffs the proofs of service for summons and complaint in the Unlawful Detainer Action—pursuant to claims of (2) Equitable and Declaratory Relief under the Bane Act, (17) Intentional Infliction of Emotional Distress (“IIED”), (18) Negligent Misrepresentation, (19) Abuse of Process, (20) Aiding and Abetting, and (21) Malicious Prosecution (Sacks only).

On September 13, 2022, Defendants Sacks and Lee filed a Special Motion to Strike under Anti-SLAPP (“anti-SLAPP motion”) against the claims made against them in the Verified Complaint for this action, as premised on the grounds that (1) the conduct ascribed to Sacks and Lee in the Complaint—i.e., the initiation, maintenance, and/or service of process in the Unlawful Detainer Action—constitutes protected activity for the purposes of anti-SLAPP and (2) Plaintiffs cannot show even minimal merit to their claims.

On October 26, 2022, Plaintiffs filed an opposition to the anti-SLAPP motion.

On November 1, 2022 Defendants Sacks and Lee replied to Plaintiff’s opposition to the anti-SLAPP motion.

On November 8, 2022, the Court heard the anti-SLAPP motion, which was granted on the grounds that (1) Defendants Sacks and Lee carried their burden of showing the claims against them involved protected activity pursuant to Code of Civil Procedure section 425.16 and (2) Plaintiff Santos and Castellanos failed to meet their responsive burden of showing minimal merit to their claims against Sacks and Lee because their opposition was filed/served untimely, for which reason the opposition was not considered at the November 8th hearing, i.e., opposition filed/served on October 26, 2022, when it should have been filed/served, per the Court’s reasoning, as of October 24, 2022.

On November 18, 2022, Plaintiffs sought reconsideration of the November 8, 2022 Court order pursuant to Code of Civil Procedure sections 1008 and 473, subdivision (b).

On March 9, 2023, Defendants Sacks and Lee filed an opposition to the reconsideration motion.

The reconsideration motion is now before the Court, with the record showing that Plaintiffs did not file a reply in support of this motion.

Request for Judicial Notice

The Court TAKES Judicial notice of Exhibits 1 to 5—(1) Court’s tentative ruling for anti-SLAPP motion, (2) Court’s November 8, 2022 ruling on anti-SLAPP motion, (3) November 8, 2022 Notice of Ruling on anti-SLAPP motion, (4) November 15, 2022 Case Management Statement, and (5) November 15, 2022 Motion for Entry of Judgment by Defendants Sacks and Lee—as filed by Plaintiffs Santos and Castellanos. (See 11/18/22 Mot., RJN, Exs. 1-5; see also Evid. Code, §§ 452, subd. (d), 453.)

Evidentiary Objections

Reconsideration Motion, Objections of Defendants Sacks and Lee

Objection to Timeliness of Opposition to anti-SLAPP Motion: OVERRULED.

Objection to Page Limit of Opposition to anti-SLAPP Motion: SUSTAINED.

Defendants Sacks and Lee’s objection to the timeliness of the opposition to the anti-SLAPP motion is OVERRULED because the Court finds infra that the October 26, 2022 opposition was, per the closest statutory authority, NOT UNTIMELY MADE and, even if the opposition were untimely made, OBJECTIONS thereto were WAIVED by Defendants Sacks and Lee. (3/9/23 Opp’n, Objections.)

However, Defendants Sacks and Lee’s objection to the length of the October 26, 2022 opposition is SUSTAINED because the opposition’s points and authorities are 23 pages long, where 15 pages is the limit. (See Cal. Rules of Court, rule 3.1113, subd. (d).) However, instead of considering the opposition to be a “late-filed paper” (Cal. Rules of Court, rule 3.1113, subd. (g)), the Court instead limits its analysis of the October 26th opposition to pages 3 to 17 therein because these pages comprise the first 15 pages of the opposition’s points and authorities. (3/9/23 Opp’n, Objections.)

Motion for Reconsideration

I. Reconsideration

A. Legal Standard for Reconsideration Motion

A motion for reconsideration is used to ask the court to modify, amend, or revoke its earlier order on a prior motion to the court because of new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (a).) Such an order may involve an interim or final order (see Code Civ. Proc., § 1008, subds. (e), (h)), where an interim order is an intermediate ruling of some kind that requires further proceedings before the suit can be resolved, and where a final order is an order that finally disposes of the suit (see People v. DeLouize (2004) 32 Cal.4th 1223, 1231 [differentiating between interim and final orders]).

A motion for reconsideration may be brought by a party or by the court on its own motion. (See Code Civ. Proc., § 1008, subds. (a), (c).) The grounds for the motion vary depending on whether a party or the Court is making the motion. (See Code Civ. Proc., § 1008, subds. (a), (c), (e).)

A party may move for reconsideration based on: (1) new or different facts, (Code Civ. Proc., § 1008, subd. (a); see e.g., In re Marriage of LaMoure (2013) 221 Cal.App.4th 1463, 1473 [reconsideration motion granted on new evidence]); (2) new or different circumstances, (Code Civ. Proc., § 1008, subd. (a)); and (3) new or different law, (Code Civ. Proc., § 1008, subd. (a); Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1196.) However, a party cannot move reconsideration based on the court’s erroneous order, i.e., the court’s misinterpretation of facts or law. (See Jones v. P.S. Dev. Co. (2008) 166 Cal.App.4th 707, 724, disapproved on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532, 532 n. 4; Gilbert v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Instead, a party can suggest to the court that it should reconsider its erroneous order on its own motion so long as the suggestion is not made ex parte. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; see e.g., In re Marriage of Spector (2018) 24 Cal.App.5th 201, 214-15 [emails husband sent to court about erroneous order were not ex parte because wife was copied on all emails].)

By contrast, the Court has statutory authority to reconsider final orders and interim orders based on a change in law. (Civ. Proc., § 1008, subds. (c), (e).)

Further, California courts have a broader constitutional authority to reconsider interim orders that are erroneous that goes beyond Code of Civil Procedure section 1008. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1248 [courts have constitutional authority to reconsider interim orders]; Le Francois, supra, 35 Cal.4th at p. 1108 [“If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief”]; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308 [“Le Francois simply requires that the trial court reconsider a prior ruling based on its own realization that the ruling was erroneous, and not based upon a determination that [an improper] motion to reconsider should itself be granted on its merits”]; see, e.g., Loeb v. County of San Diego (2019) 43 Cal.App.5th 421, 425-30 [after denying county’s initial and renewed motions for summary judgment based on “trail immunity” defense, trial court did not grant an improper motion for reconsideration—with no new evidence or law—when it considered county’s subsequent motion in limine and proposed verdict form on the defense because the court had discretionary authority to refine its legal reasoning after hearing extensive legal argument and taking a brief recess to review relevant authorities]; Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 [“[t]rial courts always have discretion to revisit interim orders in service of the paramount goal of fair and accurate decision making”].)

Case law suggests that while California courts generally do not possess a constitutional authority to reconsider erroneous final orders, a court can correct an error in legal reasoning as to a final order subject to appeal but before the time to appeal has expired. (See e.g., In re Marriage of Spector, supra, 24 Cal.App.5th at p. 215; In re Marriage of Barthold, supra, 158 Cal.App.4th at pp. 1312-13, 1313 n. 9.)

B. Reconsideration and Timeliness Thereof

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within ten (10) days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. (Code Civ. Proc., § 1008, subd. (a).)

Notice of entry of the ruling in the anti-SLAPP motion appears to have been made on November 8, 2022. (See 11/8/22 Proof of Electronic Service; contra. 11/18/22 Mot., Szocs Decl., ¶ 26 [“[Plaintiffs’ counsel] never received the ‘Notice of Ruling’ via email as averred in the Proof of Electronic Service” therefor, and such service was ineffective where “Defendants Reply stated ‘[t]here is no agreement between counsel for electronic service’”].)

Regardless of whether service of the Notice of Ruling was in fact effected on Plaintiffs’ counsel, the reconsideration motion was filed on November 18, 2022 (11/28/22 Mot., 1:1), exactly ten days after the date when service of the Notice of Ruling allegedly occurred, thus making this motion timely.

B. Reconsideration Discussion

In their reconsideration motion, Plaintiffs Santos and Castellanos argue that the November 8th anti-SLAPP ruling should be reconsidered under Code of Civil Procedure sections 1008 and 473, subdivision (b) insofar as (1) the October 26, 2022 opposition to the anti-SLAPP motion was timely and should have been considered (11/18/22 Mot., 3:8-10, 4:2-4, 4:24-5:13); (2) any defective service was waived and without import (11/18/22 Mot., 5:14-17); and (3) any late filing of the opposition to the anti-SLAPP motion was a result of either an injury sustained by Plaintiffs’ counsel, impeding counsel’s ability to properly draft the opposition on time, or a result of Plaintiffs’ counsel mistakenly believing that electronic service was proper in this action, which provides grounds for reconsideration pursuant to the mandatory relief section of Code of Civil Procedure section 473, subdivision (b) (11/18/22 Mot., 6:5-10:14, Szocs Decl., ¶¶ 10-16, 21, 41).

In opposition, Defendants Sacks and Lee argue that the reconsideration motion should be denied because: (1) Plaintiffs fail to show how the allegations made against Sacks and Lee are not protected activity for anti-SLAPP purposes (3/9/23 Opp’n, 3:1-8); (2) Plaintiffs’ personal injury argument was not raised at the November 8, 2022 hearing, where Plaintiffs simply argued the October 26, 2022 opposition was timely, but where the Court disagreed pursuant to Code of Civil Procedure section 1010.6, subdivision (a)(4)(B) (3/9/23 Opp’n, 3:9-19; see Code Civ. Proc., § 1010.6, subd. (a)(3)(B), cm. [where subdivision (a)(4)(B) was transformed into subdivision (a)(3)(B) as of January 1, 2023]); (3) the October 26, 2022 opposition failed to carry Plaintiffs’ burden to show minimal merit to their causes of action as alleged against Defendants Sacks and Lee, particularly where the reconsideration motion is not based on new or different facts or evidence that were not readily available at the time of November 8th hearing (3/9/23 Opp’n, 3:20-4:13 [referenced arguments], 4:14-5:13 [similar arguments]); and (4) with little elaboration, res judicata bars reconsideration of the anti-SLAPP ruling (3/9/23 Opp’n, 5:14-19). The remainder of the opposition relates to attorney’s fees and costs in favor of the prevailing party on an anti-SLAPP motion. (3/9/23 Opp’n, 5:20-7:12, 7:13-8:1.)

Plaintiffs Santos and Castellanos failed to file a reply to the Sacks and Lee opposition to the reconsideration motion as of Friday, March 24, 2021, accounting for the State holiday on March 31, 2023. (See docket generally.)

The Court first finds that the November 8, 2022 ruling was a final order because the ruling resolved all of Plaintiffs’ claims against Defendants Sacks and Lee in favor of these Defendants and thus finally disposed the suit as between these parties. (See People v. DeLouize, supra, 32 Cal.4th at p. 1231 [defining final order].)

The Court next finds that this reconsideration motion is permissible under the Court’s constitutional authority to reconsider errors in final orders prior to the expiration of the time to appeal because the reconsideration motion was made a mere 10 days after the November 8, 2022 ruling and notice thereof, i.e., well within any 60 or 180 day time limit provided for in California Rules of Court, rule 8.104. (See In re Marriage of Spector, supra, 24 Cal.App.5th at p. 215 [A court correct an error in legal reasoning as to a final order subject to appeal but before the time to appeal has expired]; In re Marriage of Barthold, supra, 158 Cal.App.4th at pp. 1312-13, 1313 n. 9 [same].)

Third, the Court finds that it made an error in how it interpreted Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), in the November 8, 2022 ruling. (See 11/8/22 Minutes, pp. 2, 8; see Code Civ. Proc., § 1010.6, (a)(3)(B), cm. [subdivision (a)(4)(B) was transformed into subdivision (a)(3)(B) as of January 1, 2023].) Section 1010.6, subdivision (a)(3)(B) of the Code of Civil Procedure provides that where service of a motion is made on the opposing party by electronic service, the opposing party will have an additional two court days to file its responsive paper, e.g., an opposition would be due seven court days before the hearing rather than nine court days before the hearing where service of the original motion was made via electronic service. (See Code Civ. Proc., §§ 1005, subd. (b) [opposition due nine court days before hearing], 1010.6, subd. (a)(3)(B) [“Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document [e.g., make an opposition], which time period or date is prescribed by statute or rule of court [e.g., see Code Civ. Proc., § 1005, subd. (b) re opposition due date], shall be extended after service by electronic means by two court days”].) This means that if Defendants Sacks and Lee had properly served the anti-SLAPP motion via email pursuant to some agreement between the parties—which they did not (see 9/13/22 Mot., POS [service by mail])—such service would have been instantaneous (see Code Civ. Proc., § 1010.6, subd. (a)(3)(A)) and Plaintiffs Santos and Castellanos would have been entitled to file their opposition as late as October 28, 2022. In its November 8, 2022 ruling, however, the Court refused to consider the October 26, 2022 opposition by Plaintiffs on the grounds that Code of Civil Procedure section 1010.6, subdivision (a)(4)(B)—(a)(3)(B) as of January 1, 2023—required that service of the opposition, as made via email, be made nine court days plus two court days before the November 8, 2022 hearing, pushing the file date of the opposition from October 26, 2022—nine court days before the hearing (Code Civ. Proc., 1005, subd. (b)—to October 24, 2022—two court days prior, per the Court’s incorrect application of Code of Civil Procedure section 1010.6, subdivision (a)(3)(B), then (a)(4)(B). (See 11/8/22 Ruling, p. 2.)

Fourth, the Court finds that the opposition was timely served per the closest statutory authority. While service of the opposition to the anti-SLAPP motion was made by Plaintiffs on October 26, 2022, service was made via email. (See 11/26/22 Opp’n, POS [service by email].) Such service is only permitted, among other bases, when electronic service is mandatory (see, e.g., Cal. Rules of Court, rule 2.253, subd. (b)(1)), by permissive court consent (see, e.g., Cal. Rules of Court, rule 2.251, subd. (k)(2)(A)), or by party consent (see, e.g., Code Civ. Proc., § 1010.6, subds. (b)(1)-(4)). Defendants Sacks and Lee’s November 1, 2022 reply in favor of the anti-SLAPP motion argued that the opposition was untimely because it was served via email exactly nine court days before the hearing under circumstances where “[t]here is no agreement between counsel for electronic service.” (11/1/21 Reply, 2:7-10.) Under such circumstances, and with neither set of parties indicating that electronic service was mandatory per statute, court order, or local rule, the Court finds that (1) Code of Civil Procedure section 1010.6, subdivision (a)(3), (2) section 1013, subdivision (g), and (3) California Rules of Court, rule 2.251—all providing for electronic service—cannot control. The only statutory authority that could guide the Court’s determination of whether service of the opposition was timely made on October 26, 2022 is Code of Civil Procedure section 1013, subdivisions (c) and (e), where subdivision (c) contemplates service by Express Mail or other forms of overnight delivery, e.g., UPS, FedEx, and where subdivision (e) contemplates service by facsimile transmission. Subdivision (e), however, also cannot apply because it is “permitted only where the parties agree and a written confirmation of that agreement is made.” (Code Civ. Proc., § 1013, subd. (e).) As such, the Court likens electronic service, without an agreement between the parties, to overnight delivery, as contemplated in Code of Civil Procedure section 1013, subdivision (c). This subdivision provides that “[i]n case of service by another method of delivery providing for overnight delivery,” “[s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document served by Express Mail or other method of delivery providing for overnight delivery shall be extended by two court days.” (Code Civ. Proc., § 1013, subd. (c).) Otherwise stated, if, for example, an opposition is mailed by overnight delivery exactly nine court days before the hearing—i.e., the latest period permitted by statute (Code Civ. Proc., § 1005, subd. (b))—then service is instantaneous (Code Civ. Proc., § 1013, subd. (c)), but the party responding to the opposition has an additional two court days to file a reply thereto (Code Civ. Proc., § 1013, subd. (c)), moving the required timeframe for the filing of a reply from five court days before the hearing on the subject motion (Code Civ. Proc., § 1005, subd. (b)) to three court days before the hearing (Code Civ. Proc., § 1013, subd. (c)). Applied to the October 26, 2022 opposition, if the Court likens electronic service without permission to overnight delivery, the electronic service was complete at the time it was effectuated on October 26, 2022—i.e., nine court days before the hearing, in compliance with Code of Civil Procedure section 1005, subdivision (b)—but Defendants Sacks and Lee’s timeframe to file a reply to the opposition would have been extended by two court days to permit the filing of a reply no later than three court days before the hearing (Code Civ. Proc., § 1013, subd. (c)).

Sections 1010.6 and 1013 do not impose an additional measure of time for when service of a paper or document must be made—e.g., for example, service of an opposition, like the one Plaintiffs Santos and Castellanos served via email on October 26, 2022—but rather, these sections affect the permissible timeframe for service of a responsive paper—e.g., a reply by Defendants Sacks and Lee to the electronically served October 26, 2022 opposition. (See, e.g., Code Civ. Proc., §§ 1010.6, subd. (a)(3), 1013, subds. (c), (e).)

The only statute that appears to impose extra days for service on the party filing a paper rather than extending the receiving party’s timeframe to respond is Code of Civil Procedure section 1005, subdivision (b), which requires that the party filing a motion—not opposition or reply—provide notice of such motion—not the papers themselves—sixteen court days before the hearing plus (1) between five to 20 calendar days in circumstances involving service by mail or (2) two court days in circumstances involving facsimile transmission, express mail, or another method of delivery providing for overnight delivery. (See Code Civ. Proc., 1005, subd. (b).)

Viewed in this light, the Court cannot but conclude that service of Plaintiffs’ opposition to the anti-SLAPP motion on October 26, 2022 was timely made pursuant to Code of Civil Procedure sections 1005, subdivision (b), and 1013, subdivision (c), even if service was made by electronic means under circumstances where such service was not agreed to by the parties.

Fifth, and last, the Court finds that even if the opposition was filed late, Defendants Sacks and Lee waived their objections to the late filing because they argued the merits of the opposition in their November 1, 2022 reply. In their reconsideration motion, Plaintiffs Santos and Castellanos argue that that any lateness in their opposition was waived pursuant to precedent in Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7 and Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, specifically because “Defendants[’] Reply argued the motion on the merits and any defects of service were [thus] waived.” (11/18/22 Mot., 4:16-19 [quoted language], 5:14-17 [repeated argument], 11/18/22 Mot., Szocs Decl., ¶ 21 [arguing that Alliance Bank and Carlton were cited to the Court at the 11/8/22 hearing but were not considered].) The Court in Carlton concluded that “[a]lthough [plaintiff] did raise the issue of inadequate service in his opposition and at the summary judgment hearing, he nevertheless filed a response to the motion for summary judgment, never claimed he did not have adequate time to prepare a response, appeared at the hearing, argued the merits, never requested a continuance, and never claimed he was prejudiced by the defective service or inadequate notice of hearing,” for which reason the court “conclude[d] [that plaintiff] waived any alleged defective service or inadequate notice.” (Carlton v. Quint, supra, at p. 697.) In contrast, the court of appeal has found that where, “unlike the opposing party in Quint,” a party only “respond[s] to [a] [late-served] motion by filing a written opposition containing only the notice objections and never argue[s] the merits,” no waiver occurs, such that the objecting party need “not … [even] claim or show prejudice [to object to the late-served motion] because the[] [plaintiffs] did not address the merits [of the motion], in writing or otherwise.” (Robinson v. Woods (2008) 86 Cal.App.4th 1258, 1267.) These cases give the Court parameters on waiver: Where a party objects to a defect in service or inadequate notice to respond to a motion or other paper, any argument on the merits of the motion constitutes waiver of such objection. (Compare Carlton v. Quint, supra, at p. 697, with Robinson v. Woods, supra, at p. 1267.)

Here, a review of the reply in favor of the anti-SLAPP motion shows arguments on the merits of the merits of the anti-SLAPP motion. (See 11/1/22 Reply, 2:17-10:3 [numerous arguments related to merits of anti-SLAPP motion].)

Defendants Sacks and Lee’s opposition to the reconsideration motion altogether fails to address this type of waiver, discussing waiver only in relation to the Notice of Ruling, the attorney-client or attorney work-product privileges, and the November 8, 2022 discussion of Code of Civil Procedure section 1010.6, subdivision (a)(3)(B). (See 3/9/23 Reply, 2:21-25, Sacks Decl., ¶¶ 3, 5.)

Under these circumstances, the Court finds that either Code of Civil Procedure sections 1005 and 1013, or Carlton and Robinson, give the Court sufficient grounds to determine that the October 26, 2022 opposition was timely served on Defendants Sacks and Lee or that these Defendants waived any objections to untimeliness by arguing the merits of the anti-SLAPP motion in their reply.

Reconsideration of the November 8, 2022 motion is therefore GRANTED.

II. anti-SLAPP Motion

A. Legal Standard for anti-SLAPP Motions

Anti-SLAPP analysis under Code of Civil Procedure section 425.16 proceeds in two familiar steps. In the first step, the defendant or moving party must make “a threshold showing that the challenged cause of action is one ‘arising from’ protected activity.” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321 [quotations omitted].) In this context, the term “protected activity” refers to speech or petitioning activities. (Ibid.) A claim arises from protected activity when that activity underlies or forms the basis for the claim; otherwise stated, “the defendant’s act underlying the plaintiff’s cause of action [must] itself [be] … an act in furtherance of the right of petition or free speech.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 [quotations omitted].) “[T]he focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’” (Ibid.) In teasing out whether protected conduct exists, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. (Ibid.)

If the court finds the defendant or moving party succeeds at the first step, then the burden shifts to the plaintiff to “demonstrate[] a probability of prevailing on the claim.” (Ibid. [quotations omitted].) At the second step, courts “evaluate the defendants’ evidence only to determine if it defeats that submitted by the plaintiff as a matter of law.’ [Citation.] ‘[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have “‘stated and substantiated a legally sufficient claim.’” [Citation.] “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’”‘ [Citation.] … That burden [is] not particularly high.” (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 602.) “Claims with the requisite minimal merit may proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.) If the cause of action satisfies both prongs of the anti-SLAPP statute, then it is subject to being struck. (Barry, supra, 2 Cal.5th at p. 321.)

As stated by our State’s highest Court: “This is a ‘summary-judgment-like procedure at an early stage of the litigation.’” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

B. anti-SLAPP Discussion

1. First Prong, Protected Activity

A defendant meets his burden of showing that a plaintiff’s claim arises from that defendant’s exercise of free speech or petition rights by making a prima facie showing that the act or conduct underlying the plaintiff’s claims falls within one of the four categories found in Code of Civil Procedure Section 425.16, subdivision (e). (Navellier, supra, 29 Cal.4th at p. 88.) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to an arguably protected activity are only incidental to a cause of action based essentially on non-protective activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; see also Navellier, supra, 29 Cal.4th at p. 89 [“the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity”].)

Code of Civil Procedure Section 425.16, subdivision (e) states:

As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(Code Civ. Proc., § 425.16, subd. (e).)

Defendants Sacks and Lee argue that the Complaint alleges claims against them that are grounded in protected activity pursuant to Code of Civil Procedure 425.16, subdivisions (e)(1)-(2), because the Complaint pursues claims against them based on their involvement in initiating/maintaining the Unlawful Detainer Action and/or making service of process in that same lawsuit. (9/13/22 Mot., 6:10-7:9 [referencing paragraphs 6, 17 (20), 147, 152, and 163 of the Complaint].)

In opposition, Plaintiffs Santos and Castellanos argue that: (1) Defendant Sacks signed the Unlawful Detainer Action’s complaint under penalty of perjury, which contained a number of false representations, (a) including a description of the Subject Property as lying in San Fernando rather than Los Angeles where Los Angeles properties were subject to eviction protections and rent control ordinances, and (b) where the Underlying Action was brought for the improper purpose of recovering possession of the Subject Property to which Defendants were not entitled, constituting malice (10/26/22 Opp’n, 8:21-11:10); (2) among other things, Defendant Lee committed perjury in filing proofs of service of summons and complaint on Plaintiff Santos and Castellanos in the Underlying Action (10/26/22 Opp’n, 11:11-12:24 [case law], 11:25-12:14 [argument]; and (3) while the filing of written documents in a judicial action is usually conduct protected under the anti-SLAPP statute, Code of Civil Procedure section 425.16 does not apply to Sacks and Lee because their complaint in the Underlying Action was buttressed by perjured testimony and because Defendant Lee perjured herself in making the proofs of service in that action (10/26/22 Opp’n 12:17-27 [case law], 12:28-13:9 [argument].)

In reply, Defendants Sacks and Lee argue: (1) Defendants Sacks’s and Lee’s conduct alleged in the Complaint for this action involved petitioning activity related to accessing the courts in the Unlawful Detainer Action (11/1/22 Reply 2:17-3:3); (2) the opposition fails to state how a dismissed lawsuit never ruled upon on the merits, bars Sacks and Lee’s claim of statutorily defined protected activity and speech (11/1/22 Reply, 3:4-13); (3) the opposition goes to great lengths to re-recite Plaintiffs’ Complaint and what they would have done had they litigated the Unlawful Detainer Action (e.g., attack jurisdiction, attack venue, attack the Complaint-Unlawful Detainer, attack the lawyers, argue RSO applicability, Certificate of Occupancy) (11/1/22 Reply, 3:14-4:6); (4) the opposition’s arguments do not address the fact that Plaintiff has not suffered monetary damages because the Unlawful Detainer did not go forward, Plaintiffs did not pay the rent demand, and Plaintiffs did not vacate the Subject Property, making their claims moot, an argument the Court notes is better aimed at the second prong of the anti-SLAPP analysis (11/1/22 Reply, 4:7-22); (5) the opposition concedes that the initiation of the Unlawful Detainer Action was lawful protected activity pursuant to the Los Angeles Municipal Code (11/1/22 Reply, 4:23-5:6); (6) arguments related to tenancy at will, unrelated to the first prong of this analysis (11/1/22 Reply, 5:7-15); (7) Plaintiffs fail to tie the protected activity in which Defendants Sacks and Lee engaged to the conduct of the other Defendants named in the Complaint (11/1/22 Reply, 5:16-25); (8) arguments related to the Trust Defendant unrelated to the first prong of this analysis (11/1/22 Reply, 6:1-5); (9) venue arguments unrelated to the first prong of this analysis (11/1/22 Reply, 6:6-22); (10) arguments as to the provisions of the complaint in the Underlying Action unrelated to the first prong of this analysis (11/1/22 Reply, 6:23-7:3); (11) any allegations of illegality related to the maintenance of the Subject Property in the opposition bears no relationship to the petitioning activity of Sacks and Lee (11/1/22 Reply, 7:4-8); and (12) the activity complained of by Plaintiffs falls squarely into the category of conduct related to a prior judicial proceeding, making the conduct petitioning activity for anti-SLAPP purposes (11/1/22 Reply, 7:9-8:2).

Plaintiffs Santos and Castellanos’s November 2, 2022 rebuttal to reply argues only timeliness of the anti-SLAPP opposition and reply and does not address the first prong of the anti-SLAPP analysis. (See 11/2/22 Rebuttal, 2:1-3:19.)

A review of the Complaint shows that all references to Sacks and Lee in the Complaint involve their participation in bringing/maintaining and/or service of process in the Unlawful Detainer Action against Plaintiffs Santos and Castellanos. (See Complaint, ¶¶ 31 [Sacks alleged to be licensed attorney], 60 [Sacks’s alleged wrongful bringing of Unlawful Detainer Action based on violation of rent control ordinances and other grounds], 146 [Sacks’s alleged wrongful bringing of Unlawful Detainer Action based on a number of factors], 181, 182, 186, 188 [Sacks’s involvement as counsel in the Underlying Action, including strongly worded communications with Plaintiffs’ counsel], 215 [Equitable and Declaratory Relief claim incorporating prior acts to support claims against Sacks], 372 [Sacks’s filing of Proofs of Service in the Unlawful Detainer Action as grounds for IIED claim], 377 [Negligent Misrepresentation claim incorporating prior acts to support claim against Sacks], 384 [same for Abuse of Process claim], 393 [same for Aiding and Abetting claim], 405, 420, 433-448 [allegations relating to Malicious Prosecution by Sacks in Unlawful Detainer Action all grounded in reasons why Sacks knew or should have known that bringing the eviction action lacked probable cause and legal merit]; see also Complaint, ¶¶ 32 [Lee as process server for Sacks and property owners], 149-52 [alleging Lee lied Proof of Service indicating a May 16, 2022 service of summons and complaint for the Unlawful Detainer Action on Santos and Castellanos through personal/substituted service on Santos, who alleges to have been working at that time and thus unavailable for personal/substituted service from Lee, eventually leading to an entry of default against Plaintiffs], 159 [Lee files Proof of Service for Entry of Default request against Plaintiffs Santos and Castellanos—defendants in the Unlawful Detainer Action], 160-61 [allegations relating to Lee’s lies in alleged service of summons and complaint in Unlawful Detainer Action], 162 [Lee filing of Proof of Service for Entry of Default with the Superior Court], 163-64, 168 [further allegations relating to service of summons and complaint in the Unlawful Detainer Action on May 16, 2022 by Lee], 215 [Equitable and Declaratory Relief claim incorporating prior acts to support claims against Lee], 373 [Lee’s conduct surrounding of Proofs of Service in the Unlawful Detainer Action as grounds for IIED claim], 377 [Negligent Misrepresentation claim incorporating prior acts to support claims against Lee], 384 [same for Abuse of Process claim], 393 [same for Aiding and Abetting claim].)

The claims lodged against Sacks and Lee—(2) Equitable and Declaratory Relief under the Bane Act, (17) Intentional Infliction of Emotional Distress, (18) Negligent Misrepresentation, (19) Abuse of Process, (20) Aiding and Abetting, and (21) Malicious Prosecution (Sacks only)—thus arise from litigation activity as contemplated by Section 425.16, subdivisions (e)(1)-(2) because the conduct complained of involves conduct related to the filing or maintenance of an unlawful detainer action in state court.

Because the Complaint claims that the actions taken by Sacks and Lee were, as argued in Plaintiffs’ October 26, 2022 opposition, wrongful or outright lies, it is important to note that “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.)

Defendants Sacks and Lee thus meet their burden on Anti-SLAPP of showing that the conduct alleged against them in Plaintiffs’ Complaint arises, at least in part, from protected activity, i.e., the filing or maintenance of litigation in state court. The burden thus shifts to Plaintiffs Santos and Castellanos to show minimal merit on their claims against Sacks and Lee.

II. Prong 2, Minimal Merit

The Supreme Court of California is clear on a plaintiff’s evidentiary burden in showing minimal merit to likelihood of success on the merits in the claims lodged against the Anti-SLAPP petitioning defendants: “As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 [citations omitted].)

While Plaintiffs Santos and Castellanos’s Complaint is verified (see Complaint, Verification at p. 84), it alone cannot carry Plaintiffs’ burden on Anti-SLAPP. (Sweetwater Union High School Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 940.)

A. Second Cause of Action, Equitable and Declaratory Relief under the Bane Act

“‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threat[], intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’” (King v. State of California (2015) 242 Cal.App.4th 265, 294, internal citation omitted.)

The Complaint’s second cause of action alleges that “Defendants[’] conduct and actions”—“i.e., fail[ure] to maintain Plaintiffs[’] rental unit in habitable condition and [efforts] to wrongfully terminate the tenancy without just cause in violation of State law, the LAMC [Municipal Code] and the RSO [rent control ordinaces] that caused harm to Plaintiffs”—“violated C.C., §52.1 and interfered by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment of Plaintiffs rights secured by the laws of this State, the LAMC and the RSO.” (Complaint, ¶¶ 217, 219.)

The Complaint otherwise alleges that Defendants initiated the Unlawful Detainer Action at a time when eviction moratoriums did not permit the eviction of Plaintiffs from the Subject Property, either for housing dogs therein or otherwise, and where the eviction process was meant solely to harass Plaintiffs and pressure them into moving out from the Subject Property, with, among other things, (1) Defendant Lee filing false proofs of service for the unlawful detainer proceedings, leading to entry of default against Santos and Castellanos, (2) Defendants disconnecting utilities from the Subject Property, and (3) Defendant Olmedo through Defendant De La Fe—Sacks’s office manager—threatening the use a baseball bat to fight Plaintiffs’ dogs to gain entry onto the Subject Property. (Complaint, ¶¶ 82-89, 149-52, 176-78 [allegations], 215 [incorporation].)

In their motion, Defendants Sacks and Lee argue that the “Second Cause of Action … attacks Sacks and Lee’s protected speech and activity and is missing the elements of the Bane Act” because the Complaint fails “to state a cause of action as to what ‘unprotected acts’ were improperly committed by Sacks or Lee (threats, intimidation or coercion) to prevent plaintiff from doing something they had a right to do under the law or force the plaintiffs (Santos and Castellanos) to do something that they were not required to do under the law.” (9/13/22 Mot., 7:12-18.) Sacks and Lee also argue that the second cause of action does not sufficiently plead intent and cite to law arguing that the Bane Act is limited to hate crimes. (9/13/22 Mot., 7:19-25.)

In opposition, Plaintiffs Santos and Castellanos argue that “Defendant Lee’s perjured testimony on sewer serving Plaintiffs is not protected Conduct” and that “Defendant De La Fe is Defendant Sacks’ office manager [and] made … threats to harm the dogs” owned by Plaintiffs and residing on the Subject Property, thus properly supporting a Civil Code section 52.1 claim. (10/26/22 Opp’n, 16:1-9.)

In reply, Defendants Sacks and Lee argue that “Plaintiff[s] do[] not overcome how Sacks and Lee’s speech and activity is not protected” and “[t]he complaint does not present a prima facia [sic] case of the core contentions in the complaint as to this cause of action and why Sacks and Lee’s speech and activity is not protected.” (11/1/22 Reply, 8:8-12.)

Plaintiffs Santos and Castellanos’s November 2, 2022 rebuttal to reply argues only timeliness of the anti-SLAPP opposition and reply and thus fails to address the second prong of the anti-SLAPP analysis. (See 11/2/22 Rebuttal, 2:1-3:19.)

The Court finds that there is at least minimal merit to the second cause of action as stated against Defendants Sacks and Lee.

The Complaint alleges that all Defendants acted as agents of one another. (Complaint, ¶ 37.) The Complaint alleges that Defendant Sacks filed the Unlawful Detainer Action. (Complaint, ¶ 60.) The Complaint, which is verified, also alleges the purpose of the Unlawful Detainer Action was to harass Plaintiffs and force their vacatur from the Subject Property, including by (see Complaint, ¶ 17): disconnecting Plaintiffs’ access to utilities with the Los Angeles Department of Water and Power from April 2021 to July 2021, forcing Plaintiffs to bathe and wash clothes at friends’ houses (Complaint, ¶¶ 87, 100); serving the Notice to Quit underlying the Unlawful Detainer Action in March 2022 as based on Plaintiffs having dogs (pets) on the Subject Property, where a City of Los Angeles Municipal Code ordinance—Ordinance No. 186585, §49.99.2, C.—did not allow for an eviction on these grounds at that time (Complaint, ¶¶ 82-84); Defendant Lee filing proofs of service for the summons and complaint in the Unlawful Detainer Action that were perjured because, despite the proofs of service indicating that Plaintiffs were served through service on Plaintiff Santos, Plaintiff Santos was allegedly working at the time of service, where the proofs of service were later used to obtain entry of default on Plaintiffs (Complaint, ¶¶ 149-52); removal of a gate surrounding the Subject Property by Defendants without the consent of Plaintiffs (Complaint, ¶¶ 153-54); repeated pressure from Defendant Olmedo for Plaintiffs to vacate the Subject Property in exchange for money during a time of eviction protections, occurring approximately six times between February and June 2022 (Complaint, ¶ 158); and threats from Defendant De La Fe for Defendant Olmedo to visit the Subject Property with a baseball bat to “hit the dogs over the head to gain entry” (Complaint, ¶¶ 176-77).

As evidentiary support, the Court takes into account: (1) the judicial noticeability of Ordinance No. 186585, §49.99.2, C. (Complaint, ¶ 84), prohibiting evictions for tenants on grounds of pets in a subject property at the time of the Notice to Quit and filing of the Unlawful Detainer Action by Defendant Sacks; and (2) the Declaration of Aris Castellanos, providing declaratory support for (a) the allegations surrounding the Los Angeles ordinance against eviction based on pets, (b) Defendant Lee’s alleged perjury in drafting the proofs of service for the Underlying Action, and (c) Defendants’ threats to Plaintiffs’ dogs (10/26/22 Opp’n, Castellanos Decl., ¶¶ 3-5, 7).

The Court briefly notes that the authority cited by Defendants Sacks and Lee to argue that Plaintiffs are using Civil Code section 52.1 as a “catchall” provision for torts the Legislature never intended to cover under section 52.1 (9/13/22 Mot., 7:24-26)—i.e., Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 844-45)—is incorrect where Venegas itself states that “nothing in Civil Code section 52.1 requires any showing of actual intent to discriminate,” i.e., section 52.1 is not limited to hate crimes. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841.)

Defendants Sacks and Lee’s anti-SLAPP motion is therefore DENIED as to the Complaint’s second cause of action.

B. Seventeenth Cause of Action, IIED

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.)

The seventeenth cause of action alleges, inter alia, that “Defendants continuously engaged in oppressive conduct towards Plaintiffs, in an effort to intimidate and coerce Plaintiffs to vacate the RSO unit and denying Plaintiffs their rights under the LAMC and RSO,” including (1) “Defendants De La Fe[’s] and Olmedo[’s] statements of threatening to harm Plaintiffs[’] dogs with a baseball bat” with “the conduct of Defendants Olmedo and De La Fe” being “ratified and/or authorized” by “Defendants” by “by vesting them with management authority over the rental unit and the Premises,” (2) “Defendant Lee’s false Proof(s) of Service,” and (3) “Defendant Sacks’ filing of the false Proof(s) of Service” in connection with the initiation and maintenance of the Unlawful Detainer Action. (Complaint, ¶¶ 365-72.)

In their motion, Defendants Sacks and Lee argue that this cause of action fails because: (1) “[t]he Complaint is self[-]negating as to this cause of action because it claims that Plaintiffs were never

served with process,” which, if “true [means] nothing occurred in plaintiff’s presence” as to support an IIED claim”; (2) “[t]he filing of a proof of service is a protected activity” and [s]tress arising from getting sued is not actionable as it is protected activity and speech”; and (3) “[a]ttorney representation is protected activity and does not apply to IIED.” (9/13/22 Mot., 8:4-25.)

In opposition, Plaintiffs argue in relevant part that “Defendant Lee’s acts of sewer service in the Underlying Action combined with Defendant Sacks[’s] bringing a non-viable claim for possession … is outrageous conduct the court should not condone.” (10/26/22 Opp’n, 16:10-17.)

In reply, Defendants Sacks and Lee argue that: (1) “[t]he characterization by Plaintiff of a ‘False Proof of Service’ on a dismissed action is moot” because the Unlawful Detainer Action was dismissed”; (2) the IIED claim “makes no reference to Defendant Lee, and, filing a proof of service with a court is protected activity”; and (3) “Plaintiff does not provide evidence of how filing a proof of service with the court constitutes outrageous conduct that is intended to cause harm.” (11/1/22 Reply, 8:13-21.)

The Court finds that there is at least minimal merit to the seventeenth cause of action as stated against Defendants Sacks and Lee.

The Complaint includes allegations of fraudulent proof service of the summons and complaint by Defendant Lee on Plaintiffs in the Underlying Action, the use of such proofs of service by Defendant Sacks to initiate and maintain the Unlawful Detainer Action, and the bringing of the Unlawful Detainer Action by Defendant Sacks at a time when COVID-19 protections prohibited any eviction for cause related to pets in a subject property. (Complaint, ¶ 60, 149-51.)

Evidence in support of these allegations include the judicial noticeability of Ordinance No. 186585, §49.99.2, C. (Complaint, ¶ 84), prohibiting evictions for tenants on grounds of pets in a subject property at the time of the filing of the Unlawful Detainer Action by Defendant Sacks, as well as the Declaration of Aris Castellanos, providing declaratory support for the allegations surrounding the Los Angeles Municipal Code ordinance against eviction based on pets and Defendant Lee’s false proof of service (10/26/22 Opp’n, Castellanos Decl., ¶¶ 3-5).

Defendants Sacks and Lee’s anti-SLAPP motion is therefore DENIED as to the Complaint’s seventeenth cause of action.

C. Eighteenth Cause of Action, Negligent Misrepresentation

Negligent misrepresentation involves (1) an assertion, as a fact, of that which is not true, (2) by one who has no reasonable ground for believing it to be true, (3) made with intent to induce the recipient to alter his position to his injury or his risk, (4) with justifiable reliance on the representation, and (5) resulting damage. (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.) Allegations of fraud “must be pled with more detail than other causes of action.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 240.) “Every element of the cause of action for fraud must be alleged … factually and specifically[,] and the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citations.]” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded by Statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[G]eneral and conclusory allegations do not suffice.” (Small v. Fritz Cos., Inc. (2003) 30 Cal.4th 167, 184 [citations omitted].) Fittingly, a plaintiff pleading fraud must plead facts showing “how, when, where, to whom, and by what means” the allegedly fraudulent representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The eighteenth cause of action alleges what reads like a negligence claim against Defendants instead of a negligent misrepresentation claim, as based on incorporated pleading. (See Complaint, ¶¶ 377-83.)

In their motion, Defendants Sacks and Lee argue that the eighteenth cause of action: (1) fails to allege negligent infliction of emotional distress—where the Court notes that the claim is negligent misrepresentation; (2) fails to state how “exercising protected activity of filing and service of a lawsuit to reclaim possession of one’s property constitutes negligence”; (3) fails to “set forth what duty was owed to them in the course of seeking an order for possession on a property without a certificate of occupancy”; and (4) fails to make a “pleading of a direct duty owed to Plaintiff.” (9/13/22 Mot., 9:1-21.)

In opposition, Plaintiffs Santos and Castellanos argue that (1) “[t]his claim for relief was for negligent misrepresentation not negligent infliction of emotional distress as Defendants Lee and Sacks argue” in their motion and (2) “[t]he court, in viewing the record as whole, should conclude that Plaintiffs have made a primae [sic] facie showing from which a trier of fact may ultimately conclude … that Plaintiffs have met their burden of minimal merit against Defendants Lee and Sacks … on a claim for negligent misrepresentation under these facts.” (10/26/22 Opp’n, 17:15-22.)

In reply, Defendants Sacks and Lee argue that (1) “Plaintiff[s] do[] not show a likelihood of success on the eighteenth cause of action for negligent misrepresentation, because there is no showing of any duty owed to Plaintiffs by defendant moving parties in the exercise of protected activity” and (2) the Complaint “fails to set forth what false representations were made to Plaintiffs by Sacks and Lee who have never met Plaintiffs.” (11/1/22 Reply, 8:22-9:2.)

Plaintiffs Santos and Castellanos’s November 2, 2022 rebuttal to reply argues only timeliness of the anti-SLAPP opposition and reply and does not address the second prong of the anti-SLAPP analysis. (See 11/2/22 Rebuttal, 2:1-3:19.)

The Court finds that the eighteenth cause of action is not sufficiently pleaded as to negligent misrepresentation and thus fails on anti-SLAPP grounds for failure to support in pleadings or with evidence such a fraud claim.

A review of the negligent misrepresentation claim shows a negligence claim failing to explain which false representations were negligently made to Plaintiffs, specifically by Sacks and Lee. (See Complaint, ¶¶ 377-83.) Such pleadings cannot properly show minimal merit to a negligent misrepresentation claim.

Defendants Sacks and Lee’s anti-SLAPP motion is therefore GRANTED as to the Complaint’s eighteenth cause of action.

D. Nineteenth Cause of Action, Abuse of Process

The Court does not consider the arguments related to abuse of process in the 18th and 19th pages of the October 26, 2022 opposition’s points and authorities because such arguments were made on pages exceeding the 15-page limit to oppositions not involving summary judgment or adjudication. (See Evidentiary Objections discussion supra.)

The nineteenth cause of action alleges Abuse of Process on the grounds that Defendants obtained a default against Plaintiffs by filing a false proof of service of the summons and complaint for the Unlawful Detainer Action, constituting an illegal motive through which Defendants sought to obtain an advantage in that lawsuit. (Complaint, ¶¶ 384-88.)

In their motion, Defendants Sacks and Lee argue that the nineteenth cause of action fails because, in relevant part, “[t]he mere filing or maintenance of a lawsuit - even for an improper purpose - is not a proper basis for an abuse of process action,” citing to JSJ Limited v. Mehrban (2012) 205 Cal.App.4th 1512 for this proposition. (9/13/22 Mot., 10:5-6.) The motion also argues that “a subsequent abuse” is required for abuse of process beyond the filing of an action, citing to Adams v. Superior Court (1992) 2 Cal.App.4th 530 for this proposition. (9/13/22 Mot., 10:6-8.)

Plaintiffs’ argument in support of the Abuse of Process claim against Defendants Sacks and Lee reads in full: “Defendants entertained an ulterior motive in using the false Proof(s) of Service (sewer service) as the basis for their actions, namely, the Trust and Defendant Sacks sought to obtain possession even though the rental unit did not have a certificate of occupancy in a manner that violated Plaintiffs’ due process rights so that Plaintiffs would not be able to defend the Underlying Action and deny Plaintiffs their rights under ….” (10/26/22 Opp’n, 17:23-28.)

In reply, Defendants Sacks and Lee argue in relevant part that the filing of a lawsuit alone cannot be a proper basis for abuse of process. (11/1/22 Reply, 9:3-13.)

The Court finds that there is at least minimal merit to the nineteenth cause of action as stated against Defendants Sacks and Lee.

The nineteenth cause of action alleges abuse of court process against Sacks and Lee based on these Defendants participation in securing an entry of default against Plaintiffs in the Unlawful Detainer Action through false service of process effected by Defendant Lee, and filed with the Court by Defendant Sacks. (Complaint, ¶¶ 149-52, 384-88.)

This claim is buttressed by the Declaration of Aris Castellanos, which provides that service of the summons and complaint in the Unlawful Detainer Action was never made on Plaintiffs as declared in Defendant Lee’s proof of service therefor. (10/26/22 Opp’n, Castellanos Decl., ¶¶ 3-5.)

As entry of default based on false service of process is conduct beyond the filing of an unlawful detainer lawsuit, the Court finds that JSJ Limited is unavailing and Adams is squarely on point, where a filing for entry of default by Defendant Sacks based on false service of process by Defendant Lee amounts to a misuse of the judicial process against Plaintiffs for a purpose other than that which it was intended to service.

Defendants Sacks and Lee’s anti-SLAPP motion is therefore DENIED as to the Complaint’s nineteenth cause of action.

E. Twentieth Cause of Action, Aiding and Abetting

Because Plaintiffs’ arguments related to the twentieth cause of action are contained in the 17th overall page of Plaintiffs’ points and authorities for the October 26, 2022 opposition—where 15 pages is the limit for oppositions not involving summary judgment or adjudication (Cal. Rules of Court, rule 3.1113, subd. (d)—the Court does not consider these arguments. (See Evidentiary Objections discussion supra.)

Plaintiffs thus fail to carry their burden of showing minimal merit to the twentieth cause of action.

The anti-SLAPP motion is accordingly GRANTED as to this claim.

F. Twenty-First Cause of Action, Malicious Prosecution [Sacks Only]

Because Plaintiffs’ arguments related to the twenty-first cause of action are contained in the 17th to 23rd overall pages of Plaintiffs’ points and authorities for the October 26, 2022 opposition—where 15 pages is the limit for oppositions not involving summary judgment or adjudication (Cal. Rules of Court, rule 3.1113, subd. (d)—the Court does not consider these arguments. (See Evidentiary Objections discussion supra.)

Plaintiffs thus fail to carry their burden of showing minimal merit to the twenty-first cause of action, as alleged against Defendant Sacks.

The anti-SLAPP motion is accordingly GRANTED as to this claim.

Conclusion

Plaintiffs Stacey Santos and Aris Castellanos’s Motion to Reconsider Special Motion to Strike Under Anti-SLAPP is GRANTED because the Court finds that statutory interpretation and legal precedent support reconsideration of the November 8, 2022 ruling.

Defendants Adam Michael Sacks and Jamie Lee’s September 13, 2022 Special Motion to Strike under Anti-SLAPP is GRANTED in Part and DENIED in Part as follows:

(1) GRANTED as to the Complaint’s the eighteenth, twentieth, and twenty-first causes of action because Defendants Sacks and Lee showed these claims made against them arise, at least in part, from protected activity, and Plaintiffs Santos and Castellanos fail to show minimal merit thereto; and

(2) DENIED as to the Complaint’s second, seventeenth, and nineteenth causes of action because although Defendants Sacks and Lee showed these claims made against them arise, at least in part, from protected activity, Plaintiffs Santos and Castellanos showed at least minimal merit thereto.

Superior Court of California

County of Los Angeles

Department 40

STACEY SANTOS and ARIS CASTELLANOS,

Plaintiff,

Defendants.

Case No.: 22STCV24759

Hearing Date: 4/3/23

Trial Date: N/A

[TENTATIVE] RULING RE:

Defendants Telebrown Statutory Trust, Jagarn LLC, Jeannine Marie Brevik, Wilman Bladimir Olmedo Calderon, Alex Olmedo, and Jeannine Marie Brevik as Manager of Jagarn LLC’s Demurrer to Plaintiff’s Complaint.

MOVING PARTY: Defendants Telebrown Statutory Trust, Jagarn LLC, Jeannine Marie Brevik, Wilman Bladimir Olmedo Calderon, Alex Olmedo, and Jeannine Marie Brevik as Manager of Jagarn LLC.

OPPOSITION: Plaintiffs Stacey Santos and Aris Castellanos.

REPLY: Defendants Telebrown Statutory Trust, Jagarn LLC, Jeannine Marie Brevik, Wilman Bladimir Olmedo Calderon, Alex Olmedo, and Jeannine Marie Brevik as Manager of Jagarn LLC [Untimely].

Background

Plaintiffs Stacey Santos and Aris Castellanos sue a number of Defendants for their alleged participation in a scheme to wrongfully evict Plaintiffs from their rental unit in a two-dwelling residential property (“Subject Property”)—unit which at all relevant times lacked a Certificate of Occupancy, thus allegedly making any attached Lease allegedly void—by means of a May 12, 2022 unlawful detainer action (LASC Action No. 22CHUD00401) (hereafter “Underlying Action” or “Unlawful Detainer Action”) filed during a period of COVID-19 eviction protections and under false pretenses, i.e., eviction for cause through alleged breach of lease agreement by keeping dogs on the Subject Property, where the property manager was aware of the dogs’ presence and abided the same as of the date that Plaintiffs moved in to the Subject Property on May 1, 2019, and where the Underlying Action was dismissed without prejudice by the owners of the Subject Property (either Defendants Wilman Olmedo and Jeannine Brevik or the TelBrown Statutory Trust) on June 27, 2022.

On October 26, 2022, Defendants Telebrown Statutory Trust (“Telebrown”), Jagarn LLC (“Jagarn”), Jeannine Marie Brevik (“Brevik”), Wilman Bladimir Olmedo Calderon (“Calderon”), Alex Olmedo (“Olmedo”), and Jeannine Marie Brevik as Manager of Jagarn LLC (“Manager”) demurred to the Complaint’s 21 causes of action.

On March 21, 2023, Plaintiffs Santos and Castellanos opposed the October 26, 2022 demurrer.

On March 27, 2023, Defendants filed a late reply to Plaintiff Santos and Castellanos’s March 21st opposition, where the reply should have been filed on March 24, 2023, accounting for the State holiday on March 31, 2023.

The demurrer is now before the Court.

Preliminary Consideration

The points and authorities for Defendants’ demurrer are 17 pages long. (See Demurrer, pp. 9-25.) The limit for the length of points and authorities in motions not involving summary judgment or adjudication is 15 pages. (Cal. Rules of Court, rule 3.1113, subd. (d).) Instead of finding that the demurrer is therefore a “late-filed paper” (Cal. Rules of Court, rule 3.1113, subd. (g)), the Court instead limits its analysis of the motion to pages 9 to 23 therein.

Demurrer

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

First Cause of Action, Declaratory Relief pursuant to Code of Civil Procedure, §1060: OVERRULED.

Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. (Code Civ. Proc., §1060.) He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. (Code Civ. Proc., §1060.) The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. (Code Civ. Proc., §1060.) The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought. (Code Civ. Proc., §1060.)

The first cause of action against all Defendants except Sacks and Lee alleges that “Plaintiffs are entitled to [1] a declaration that the Property is situated in the City of Los Angeles and not in the City of San Fernando,” (2) “a declaration of the parties[‘] obligations and duties under the Lease,” and (3) “a declaration that the Lease [between the parties for rental of the Subject Property] is void ab initio.” (Complaint, ¶¶ 212-14.)

In their demurrer, Defendants argue that “[t]his cause of action is unnecessary and improper” because “[i]t seeks to invalidate a legally binding contract based in whole [sic] as a method to allow the Plaintiffs to forgo their obligations as tenants despite their continuous violations.” (Demurrer, 11:15-17.) Defendants further argue that “[t]he declaratory relief statute should not be used for the purpose of anticipating and determining an issue [that] can be determined in the main action” because “[t]he object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues” and where “[s]hould the Court continue this matter, any issue about the actual city that the Property is situated in will be resolved.” (Demurrer, 11:7-12, 11:17-18.)

In opposition, Plaintiffs argue that “[t]he January 5, 2022 Grant Deed, Complaint, Exhibit 2 clearly evidences that Defendants were fully aware that the Property was located in the City of Los Angeles, that contained two rental units and were not registered with the City of Los Angeles” and that “[u]nder the applicable RSO provisions, the rental units were required to the registered with the City of Los Angeles.” (Opp’n, 8:22-26.)

In reply, Defendants reiterate their points in the motion. (Reply, 2:23-27.)

The Court finds that the first cause of action is sufficiently stated to survive demurrer. At the very least, resolution of the remaining causes of action in Plaintiffs’ Complaint would not necessarily result in the rescission of the lease agreement or a finding that the lease is void. (See Fourth Cause of Action discussion infra [only claim that could so result in voiding of lease agreement not viable cause of action].) While the Complaint pleads a breach of contract claim that could result in rescission, there is no guarantee that Plaintiffs, if successful, will in fact seek rescission of the lease agreement as their form of chosen relief on the breach of contract claim.

To the extent that the other two declaratory relief grounds could be resolved by resolution of the remaining claims in this action—i.e., declaration of whether the Subject Property lies in San Fernando or Los Angeles, and parties’ obligations under the lease agreement—the Court notes that “[a] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) Instead, the proper procedural vehicle to effect a removal of such allegations from the Complaint is a motion to strike. (See Code Civ. Proc., §§ 435-36.)

Defendants’ demurrer is thus OVERRULED as to the Complaint’s first cause of action.

Second Cause of Action, Equitable and Declaratory Relief under the Tom Bane Civil Rights Act: OVERRULED, as to Defendants Olmedo and Telebrown; SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

The Complaint’s second cause of action against all Defendants alleges that “Defendants[‘] conduct and actions”—“i.e., fail[ure] to maintain Plaintiffs[‘] rental unit in habitable condition and [efforts] to wrongfully terminate the tenancy without just cause in violation of State law, the LAMC [Municipal Code] and the RSO [rent control ordinances]”—“violated C.C., §52.1 and interfered by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment of Plaintiffs[‘] rights secured by the laws of this State, the LAMC and the RSO.” (Complaint, ¶¶ 217, 219.)

In their demurrer, Defendants argue that “Plaintiffs have failed to allege any threats or acts of a violent nature against them by defendants” where “Plaintiffs[‘] conclusory statement that ‘[d]efendants conduct and actions violated § 52.1 and interfered by threat, intimidation, or coercion … with the exercise or enjoyment of Plaintiffs[‘] rights secured by the laws of this State …’[,] without any specific claims that defendants threatened or committed a violent act against them[,] does not support a cause of action under the Tom Bane Civil Rights Act.” (Demurrer, 12:7-12.) Defendants also argue that the second cause of action attempts to shoehorn torts that the Legislature did not intend to apply to section 52.1, citing to case law allegedly standing for the proposition that the Bane Act was instituted simply to combat hate crimes. (Demurrer, 12:3-6.)

In opposition, Plaintiffs argue that at paragraphs “176, 177, [and] 178” of the Complaint Defendants are alleged to have made threats or acts of a violent nature against Plaintiffs’ dogs, specifically Defendants Olmedo and De La Fa threatening on June 10, 2022 to hit Plaintiffs’ dogs over the head with a baseball bat. (Opp’n, 9:1-3.)

In reply, Defendants reiterate their arguments related to section 52.1 being limited to certain types of harms, like hate crimes. (Reply, 3:1-9.)

The Court finds that the second cause of action is sufficiently pleaded as to Defendant Olmedo and Defendant Telebrown.

The Complaint alleges that all Defendants acted as agents of one another. (Complaint, ¶ 37.) The Complaint, which is verified, also alleges the purpose of the Unlawful Detainer Action was to harass Plaintiffs and force their vacatur from the Subject Property, including by (see Complaint, ¶ 17): disconnecting Plaintiffs’ access to utilities with the Los Angeles Department of Water and Power (“LADWP”) from April 2021 to July 2021, forcing Plaintiffs to bathe and wash clothes at friends’ houses (Complaint, ¶¶ 87, 100); serving the Notice to Quit underlying the Unlawful Detainer Action in March 2022 as based on Plaintiffs having dogs (pets) on the Subject Property, where a City of Los Angeles Municipal Code ordinance—Ordinance No. 186585, §49.99.2, C.—did not allow for an eviction on these grounds at that time (Complaint, ¶¶ 82-84); Defendant Lee filing proofs of service for the summons and complaint in the Unlawful Detainer Action that were perjured because, despite the proofs of service indicating that Plaintiffs were served through service on Plaintiff Santos, Plaintiff Santos was allegedly working at the time of service, where the proofs of service were later used to obtain entry of default on Plaintiffs (Complaint, ¶¶ 149-52); removal of a gate surrounding the Subject Property by Defendants without the consent of Plaintiffs (Complaint, ¶¶ 153-54); repeated pressure from Defendant Olmedo for Plaintiffs to vacate the Subject Property in exchange for money during a time of eviction protections, occurring approximately six times between February 2022 and June 2022 (Complaint, ¶ 158); and threats from Defendant De La Fe for Defendant Olmedo to visit the Subject Property with a baseball bat to “hit the dogs over the head to gain entry” (Complaint, ¶¶ 176-77).

Evidence also shows that the Unlawful Detainer Action was brought by Defendant Telebrown against Plaintiffs (Complaint, Ex. 1) and that Defendant Olmedo was the relevant landlord at the time the above conduct took place (Complaint, Ex. 1, Sub-Ex. 1, p. 1, § 3 [“Rent shall be delivered to … Alex Olmedo”] & Bed Bug Disclosure, p. 1 [“Alex Olmedo is referred to as (‘Landlord’)”]).

The Court finds such pleadings and evidennce sufficiently support the second cause of action, for which reason Defendants’ demurrer is thus OVERRULED as to the Complaint’s second cause of action, only as to Defendants Olmedo and Telebrown.

However, the demurrer is SUSTAINED, With Leave to Amend, as to the second cause of action insofar as it is alleged against Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon because the pleadings do not sufficiently tie these Defendants to the complained-of pleadings summarized ante.

Third Cause of Action, Declaratory Relief under the RSO and LAMC, § 151.09.H.: OVERRULED.

The third cause of action against all Defendants except Sacks and Lee seeks declarations of rights as to whether (1) the rental unit is subject to the RSO, (2) Defendants’ (Landlord(s)) rights and duties under the RSO to Plaintiffs, (3) Plaintiffs are a “Qualified Tenant” under LAMC, § 151.02, (4) Defendants (Landlord(s)) shall be liable to the tenant to whom such assistance is due for damages in the amount the landlord has failed to pay, together with reasonable attorney fees and costs as determined by the court, pursuant to LAMC, §151.09. H. (Complaint, ¶¶ 225-28.)

In their demurrer, Defendants argue that “the unlawful detainer suit was dismissed without prejudice, meaning no relocation money was required or ordered, and thus Section H [was] not triggered,” for which reason, “section H “does not apply to the matter at hand” and the “demurrer to this cause of action should be sustained.” (Demurrer, 12:21-25.)

In opposition, Plaintiffs argue that “Defendants … sought to avoid their obligations of evicting Plaintiffs without paying the appropriate relocation assistance called for under the RSO by alleging the RSO did not apply since the Property was located in the City of San Fernando,” for which reason “Plaintiffs are requesting that the Court determine the location and whether the RSO is applicable in the first instance under these facts.” (Opp’n, 9:17-21.)

In reply, Defendants reiterate their argument that “[t]he unlawful detainer suit was dismissed without prejudice, meaning no relocation money was required or ordered, and thus Section H is not triggered” and that “Plaintiffs[‘] [argument] that the unlawful detainer suit was incorrectly brought in the name of the trust … does not matter at this point … because the [Underlying Action] was dismissed.” (Reply, 3:10-18.)

The Court finds that a declaration of rights as to the first two of these issues—whether Subject Property is subject to the RSO (rent control ordinance) and the rights and duties arising therefrom—is a controversy between the parties and would not necessarily be resolved by the resolution of the remaining causes of action pleaded in the Complaint because the remaining claims involve other harms or rights directed at Plaintiffs.

The latter two grounds—whether Plaintiffs are qualified tenants in a termination of tenancy proceeding and landlord liability for relocation assistance to Plaintiffs—are not active controversies between the parties because, per the pleadings, the Unlawful Detainer Action was dismissed without prejudice on June 27, 2022 and no other similar action appears to be on file between the parties. (Complaint, ¶ 189 [allegation that “by filing the Request for Dismissal without prejudice, the Trust left open the possibility the action may be re-filed” leading to conclusion that no unlawful detainer action is on file].) However, in light of the validity of the first two controversies for which a declaration of rights is sought in the third cause of action, the proper procedural vehicle for removing the latter two grounds for declaration of rights in the third cause of action is a motion to strike, not a demurrer. (Kong v. City of Hawaiian Gardens Redevelopment Agency, supra, 108 Cal.App.4th at p. 1047 [“A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy”].)

Defendants’ demurrer is thus OVERRULED as to the Complaint’s third cause of action.

Fourth Cause of Action, Rescission of the Lease: SUSTAINED, With Leave to Amend.

Although a breach of contract may be redressed in various ways, such as by rescission, specific performance, declaratory relief, the payment of damages, or injunctive relief, the remedy is not the cause of action, but rather, there is a single cause of cause of action for breach of contract; otherwise stated, the “‘seeking of different kinds of relief does not establish different causes of action.’” (Marden v. Bailard (1954) 124 Cal.App.2d 458, 465.) For the reason, “[r]escission” “is [generally] not a cause of action; it is a remedy.” (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70.)

The fourth cause of action against all Defendants except Sacks and Lee alleges a “rescission” of lease agreement reading like a fraud claim for misrepresentations or concealment as based on pleadings that Defendants Calderon, Brevik, Olmedo, and Doe Defendants misrepresented or omitted information related to the nature of the lease between the parties and misrepresented the habitability of the Subject Property, thereby inducing Plaintiff’s entry into the lease for the Subject Property, which Plaintiffs would have not entered had they been presented accurate representations regarding the lease and Subject Property, entitling Plaintiffs to a rescission of the lease and restitution of $38,200. (Complaint, ¶¶ 232-37.)

In their demurrer, Defendants argue that “[r]ecission is not a cause of action, it is a form of relief” and that “Plaintiffs have failed to plead facts sufficient in their Complaint that would reasonably provide a basis for the contract being completely null and void, particularly years after execution and while the Plaintiffs continue to reside on the Property.” (Demurrer, 12:28-13:7.)

In opposition, Plaintiffs argue that “Defendant Olmedo misrepresented several key facts when the Lease was entered into by the parties, i.e.[,] the location, the rental unit having the appropriate certificates for occupancy and that it was properly registered with the city authorities,” “[n]one of [which] were true.” (Opp’n, 9:24-27.) Plaintiffs also cite reasons why the lease for Subject Property was void, including the maintenance of unpermitted living quarters and the lack of Certificates of Occupancy for the Subject Property. (Opp’n, 10:1-17.)

In reply, Defendants reiterate their arguments that rescission is not properly a cause of action. (Reply, 3:21-26.)

The Court finds that the fourth cause of action is improperly pleaded because rescission is a remedy, not a cause of action. (Nakash v. Superior Court, supra, 196 Cal.App.3d at p. 70.)

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s fourth cause of action, with leave permitting Plaintiffs to change the pleading of this claim from one seeking rescission of the lease agreement to an intentional misrepresentation or concealment claim.

The Court notes, however, that to the extent that this cause of action would be duplicative of the eighth cause of action, it could be subject to demurrer. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [“a cause of action for breach of governing documents [that] appear[ed] to be duplicative of [a] cause of action for breach of fiduciary duty” is “recognized … as a basis for sustaining a demurrer”]; compare Complaint, Fourth COA [misrepresentations by Calderon, Brevik, Olmedo, and Doe Defendants], with Complaint, Eighth COA [intentional misrepresentations by Olmedo].)

Fifth Cause of Action, Breach of Contract: OVERRULED, as to Defendants Olmedo and Telebrown; SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

“A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.) “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

The fifth cause of action against all Defendants except Sacks and Lee alleges that “the Lease required … Defendants Calderon, Brevik, Olmedo and Doe Defendants to comply with all applicable State law and the local laws as set forth” in the Complaint and that Defendants breached the lease by “substantially interfer[ing] with Plaintiffs quiet enjoyment of the Premises.” (Complaint, ¶¶ 238-41.) Such breaches included Defendants’ failure to pay for the utilities on the premises between April 2021 and August 2022. (Complaint, ¶¶ 87-89; see Complaint, ¶ 260 [utilities not paid through filing of date of Complaint].)

In their demurrer, Defendants argue that “Defendants Telebrown, Jagarn, Brevik, Calderon, and Jeannine Marie Brevik as Manager of Jagarn LLC are not named parties to” the lease and that the fifth cause of action fails “to allege sufficient facts as to how any of the Defendants breached the lease,” instead “merely indicat[ing] that the Defendants breached the irrespective [sic] duties without specifying what duties they are referring to or what actions were taken.” (Demurrer, 13:18-25.)

In opposition, Plaintiffs argue that the Complaint clearly pleads and incorporates exhibits establishing that “Defendant Olemdo [sic] entered into the Lease with Plaintiffs” and that “[t]hereafter, Defendants Calderon and Brevik transferred the Property into a Trust,” where “Defendants Jagarn, LLC, Brevik, Calderon, and Jeannine Marie Brevik as Manager of Jagarn LLC [became] the new owners who took the Property subject to the transfer,” thus properly alleging that these Defendants were parties to the lease. (Opp’n, 11:1-6.)

In reply, Defendants reiterate their two points in the motion. (Reply, 4:3-12.)

The court finds that the breach of contract claim is not sufficiently pleaded as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon but is sufficiently pleaded as to Defendants Olmedo and Telebrown.

The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell, supra, 189 Cal.App.3d at p. 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc., supra, 86 Cal.App.4th at p. 1447.)

A review of Exhibit 1 to the Complaint includes a copy of the lease agreement, i.e., the contract between the parties. The only landlord contemplated therein is “Alex Olmedo.” (See Complaint, Ex. 1, Sub-Ex. 1, p. 1, § 3 [“Rent shall be delivered to … Alex Olmedo”] & Bed Bug Disclosure, p. 1 [“Alex Olmedo is referred to as (‘Landlord’)”].)

A review of the Unlawful Detainer Action complaint, however, also shows that that lawsuit was brought in the name of Defendant Telebrown, which sought Plaintiffs’ eviction from the Subject Property based on a breach of the lease agreement, i.e., keeping dogs on the Subject Property in violation of the lease. (Complaint, Ex. 1.)

These two Defendants are thus adequately tied to allegations of breach of contract.

While the Complaint alleges “Defendants Coons, Jagarn, LLC, Brevik, Manager of Jagarn, Calderon, Brevik, …, De La Fe and Doe Defendants are … ‘Landlord[s]’” pursuant to the lease agreement, the Complaint does not sufficiently elaborate on these pleadings beyond conclusions of fact, e.g., does not allege a transfer of landlord status from Alex Olmedo to another Defendant, or a conspiracy between Defendants. While the Complaint alleges that all Defendants acted as agents of one another (Complaint, ¶ 37), and while each individual Defendant is liable for their own torts against Plaintiffs Santos and Castellanos (James v. Marinship Corp. (1944) 25 Cal.2d 721, 742-43 [“The true rule is, of course, that the agent is liable for his own act, regardless of whether the principal is liable or amenable to judicial action”]), such allegations and circumstances do not impute contractual obligations to the agent of the landlord.

Further, to the extent that Plaintiffs are arguing that Coons, Jagarn, Brevik, Calderon, and De La Fe, or any other Defendants, are liable for the torts or other actions of Telebrown or any other company, the Complaint does not make any alter ego allegations, let alone alter ego allegations that sufficiently flesh out reasons why any corporate veil should be pierced.

Last, at the very least, the Complaint alleges breach of contract based on the landlord’s—i.e., Olmedo’s or Telebrown’s—failure to pay the LADWP utility bills between April 2021 and August 2022, where the least agreement provided at paragraph 9 that such utility payments would be made by the landlord. (Complaint, ¶¶ 87-89; see Complaint, ¶ 260 [utilities not paid through filing of date of Complaint].)

Defendants’ demurrer is thus OVERRULED as to Complaint’s fifth cause of action insofar as it is directed against Defendants Olmedo and Telebrown but SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

Sixth Cause of Action, Wrongful Conversion of Money: SUSTAINED, Without Leave to Amend, as to All Defendants.

“Conversion is the wrongful exercise of dominion over the property of another … [and its] elements … 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.) However, “the simple failure to pay money owed does not constitute conversion”; “[a] cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff’s possessory interest in a specific, identifiable sum, such as when a trustee or agent misappropriates the money entrusted to him. [Citation.]” (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599 [citing Haigler v. Donnelly (1941) 18 Cal.2d 674, 681].)

The sixth cause of action against all Defendants except Sacks, Lee, and De La Fe alleges Defendants converted $38,200 from Plaintiffs Santos and Castellanos by collecting a $1,000 security deposit and monthly rent of $1,200 for the Subject Property between April 29, 2019 and January 15, 2022 insofar as Defendants took such money under false pretenses and have refused to return the $38,200 to Plaintiffs, thus substantially interfering with Plaintiffs’ rights thereto. (Complaint, ¶¶ 246-51.)

In their demurrer, Defendants argue that the conversion claim fails as pleaded because “Plaintiffs entered into a lease agreement, took possession of the property, and paid rent in exchange,” where there “was no trickery or malicious intent” from Defendants and where “Plaintiffs … [remain] in possession of the Property.” (Demurrer, 13:28-14:2.) Defendants further argue that “Plaintiffs voluntarily gave Defendants the rent money because there was a rental agreement,” for which reason “Plaintiffs [do] not have the right to possess the security deposit or rent because there was an agreement that they would pay this money to Defendants and in return receive the benefit of living in the rental Property, where they continue to reside presently.” (Demurrer, 14:13-16.)

In opposition, Plaintiffs argue that while “Plaintiffs voluntarily gave Defendants the rent money because there was a rental agreement” between the parties,” “defendants have a Lease that Plaintiffs allege is null and void” because the Subject Property is alleged to lack “a certificate of occupancy and regist[ration] [of] rental units,” meaning “Defendants could not demand rent” therefor. (Opp’n, 11:18-22.)

In reply, Defendants essentially argue that “Plaintiffs did not have the right to possess the security deposit or rent because there was an agreement that they would pay this money to Defendants and in return receive the benefit of living in the rental property, where they continue to reside presently.” (Reply, 4:16-18.)

The Court finds that the conversion claim is fatally defective as pleaded.

The Complaint is specific in pleading that Plaintiffs paid $38,200 to Defendants for the purpose of renting the Subject Property. (Complaint, ¶ 246.) Under these circumstances, regardless of whether the lease signed between the parties is alleged as void, an agreement existed for the rental of the property, where Plaintiffs were entitled to possession of the Subject Property in exchange for rental payments to Defendants but not entitled to both possession and the security deposit and rental payments.

Defendants’ demurrer is thus SUSTAINED, Without Leave to Amend, as to the Complaint’s sixth cause of action, as to All Defendants.

Seventh Cause of Action, Wrongful Conversion of Utility Services: SUSTAINED, Without Leave to Amend, as to All Defendants.

The seventh cause of action against all Defendants except Sacks and Lee alleges that Defendants wrongfully converted utilities to which Plaintiffs were entitled between July 30, 2021 and August 1, 2022—when the Complaint was filed—because Plaintiffs were forced to pay for the LADWP utilities for the Subject Property, where paragraph nine of the lease agreement provides that Defendants were required to pay for such services. (Complaint, ¶¶ 257-60.) The seventh cause of action also alleges conversion against Defendants and their agents CJ Construction on the grounds that CJ Construction used utility services on the Subject Property by false pretense and without Plaintiffs’ consent. (Complaint, ¶¶ 101-02, 256, 261.)

In their demurrer, Defendants argue that “[t]his cause of action fails to state facts sufficient to state a claim and is uncertain” because “[u]tility services are not personal property” and because “plaintiffs do not own the utility services,” but rather, instead “pay a specific sum of money for utility services that are provided to the property by a utility company.” (Demurrer, 15-4:6.)

In opposition, Plaintiffs argue that “[u]tility service[s] in one[‘]s name that [one is] required to legally pay … are in fact personal property,” “Plaintiffs have [utility] services [for the Subject Property] in their name, they pay for these services and have every right to deny third parties the use of service that financially harm Plaintiffs,” and “Plaintiffs made a demand on Defendants to pay their portion of the utilities but Defendants have refused to pay.” (Opp’n, 11:27-12:3.)

In reply, Defendants argue that “[t]he conversion cause of action is improper and should be dismissed since it is not actionable as alleged” given that “Plaintiffs[‘] … explanation [regarding] … how a billing cycle is implemented by a utility company” does not explain the meaning of “conversion of utility services” and any “theft of utility services” alleged against Defendants “does not provide a valid argument as to how the Complaint alleges sufficient facts for conversion.” (Reply, 4:24-28.)

The Court finds that the seventh cause of action is fatally defective as pleaded.

A plaintiff may not “ordinarily recover in tort for the breach of duties that merely restate contractual obligations.” (Aas v. Superior Court (2000) 24 Cal.4th 627, 643 (2000), superseded by statute on other grounds as stated in Rosen v. State Farm General Insurance Co. (2003) 30 Cal.4th 1070, 1079-80.) Any doubt over whether claims are founded in contract or tort should be resolved in favor of contract liability. (Voth v. Wasco Public Util. Dist. (1976) 56 Cal.App.3d 353, 356-57.) Here, the seventh cause of action specifically indicates that Defendants owe utility payments to Plaintiffs pursuant to the parties’ lease agreement. (Complaint, ¶ 258.) As such, as pleaded, the utilities claim should be resolved in terms of contract liability.

Defendants’ demurrer is thus SUSTAINED, Without Leave to Amend, as to the Complaint’s seventh cause of action, as to All Defendants.

Eighth Cause of Action, Fraud: OVERRULED, as to Defendant Olmedo; SUSTAINED, With Leave to Amend, as to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

“The elements of fraud that will give rise to a tort action for deceit are: “‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; see also Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.)

Allegations of fraud “must be pled with more detail than other causes of action.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 240.) “Every element of the cause of action for fraud must be alleged … factually and specifically[,] and the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citations.]” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[G]eneral and conclusory allegations do not suffice.” (Small v. Fritz Cos., Inc. (2003) 30 Cal.4th 167, 184 [citations omitted].) Fittingly, a plaintiff pleading fraud must plead facts showing “how, when, where, to whom, and by what means” the allegedly fraudulent representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The eighth cause of action against all Defendants except Sacks and Lee alleges that Defendants engaged in fraud when “[o]n April 29, 2019 when the Lease was signed, Defendants, specifically Defendant Olmedo, intentionally or negligently represented to Plaintiffs 1) the rental unit was located in the City of San Fernando, 2) the rental unit complied with all relevant building and safety codes for human habitation, 3) the Landlords had all required permits and registrations for the rental unit to be lawful occupied, and 4) that Plaintiffs could lawful[ly] occupy the rental unit.” (Complaint, ¶ 272.) The eighth cause of action also alleges that “Defendants concealed or suppressed facts by telling Plaintiffs 1) the rental unit was located in the City of San Fernando, 2) the rental unit complied with the building and safety codes for human habitation, 3) had all required permits and registrations for the rental unit to be lawful occupied, and 4) that Plaintiffs could lawful[ly] occupy the rental unit to mislead Plaintiffs and prevent Plaintiffs from discovering the concealed or suppressed facts.” (Complaint, ¶ 280.)

In their demurrer, Defendants argue that “Plaintiffs have failed to provide specific facts about how each or any of the Defendants committed fraud, who precisely made any fraudulent misrepresentations and to which Plaintiffs, and that there was intent to defraud the Plaintiffs,” instead simply “relying on conclusory allegations without any specific evidence in support.” (Demurrer, 16:1-4.)

In opposition, Plaintiffs argue that “Plaintiffs Complaint, ¶[¶] 271-289 provided specific facts about how each of the Defendants committed fraud, who precisely made any fraudulent misrepresentations and to which Plaintiffs, and that there was intent to defraud the Plaintiffs.” (Opp’n, 12:12-14.)

In reply, Defendants argue that “Plaintiffs have failed to provide specific facts about how Defendants committed fraud, who precisely made any fraudulent misrepresentations, and that there was intent to defraud the Plaintiffs.” (Reply, 5:18-20.)

The Court finds that the fraud claim is sufficiently pleaded to survive demurrer only as to Defendant Olmedo because paragraph 272 of the Complaint is quite clear as to the representations made to Plaintiffs by Defendant Olmedo that underlie the intentional misrepresentation portion of this fraud claim. The Court briefly notes that paragraph 280 of this claim alleges concealment on the same grounds but does not ascribe the concealment to any specific Defendant. To whatever extent paragraph 280 could be clearer as to which Defendants concealed the above discussed information from Plaintiffs, the Court further notes that a demurrer may not be sustained to only a portion of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency, supra, 108 Cal.App.4th at p. 1047 [“A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy”].)

Defendants’ demurrer is thus OVERRULED as to the Complaint’s eighth cause of action, as directed at Defendant Olmedo alone, though the Court notes that the pleadings could benefit from division of the intentional misrepresentation and concealment grounds for this claim into two separate claims, e.g., by inclusion of the concealment grounds for this claim in the fourth cause of action, provided that that claim is changed from a rescission claim to a concealment claim.

However, Defendants’ demurrer is SUSTAINED, With Leave to Amend, as to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon because the eighth cause of action fails to allege (1) the misrepresentations made by Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon to Plaintiffs, (2) any joint liability for Olmedo’s misrepresentations outside of insufficiently-elaborated agency pleadings, and (3) Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon’s individual duty to disclose concealed facts to Plaintiffs where none of these parties are properly alleged as landlords or parties to the lease agreement (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 [“[T]he elements of an action for fraud and deceit based on a concealment … [include] the defendant[‘s] … duty to disclose the fact to the plaintiff”]).

Ninth Cause of Action, Violation of Penal Code, § 496: SUSTAINED, Without Leave to Amend, as to All Defendants.

To sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223; see Pen. Code, § 496, subd. (a).)

The ninth cause of action against all Defendants but Sacks, Lee, and De La Fe alleges that “Defendants willfully converted Plaintiffs’ money, and further, Plaintiffs are informed and believe that when Defendants received Plaintiffs’ money, Defendants intended to steal it by fraudulent representation or false pretense.” (Complaint, ¶ 291.)

In their demurrer, Defendants argue that: (1) “[t]here is no stolen property at issue in the present matter”; (2) “an essential element of a section 496 violation is the defendant’s knowledge that the property was stolen”; and (3) “Plaintiffs have failed to allege facts that demonstrate that Defendants stole the property of Plaintiffs” because “a lease agreement was executed between the parties and the Plaintiffs continue to reside at the Property” such that “[i]f plaintiffs are contending that rent money is the stolen property, this claim fails because plaintiffs admit that they entered into a lease to rent the property.” (Demurrer, 16:9-20.)

In opposition, Plaintiffs argue that “Plaintiffs Complaint, ¶[¶] 290 - 295 provided specific facts about how each of the Defendants stole Plaintiffs’ money under Penal Code, section 484, who precisely took their money as Defendant Olmeda [sic] accepted money under false pretense and that there was intent by Defendant Olemda [sic] who acted on the behalf of the other Defendants.” (Opp’n, 12:23-26.)

In reply, Defendants reiterate their points in the motion. (Reply, 5:22-6:12.)

The Court finds that the ninth cause of action is fatally defective as pleaded.

The ninth cause of action is grounded in allegations that Defendants received stolen property by collecting payments from Plaintiffs for the rental of the Subject Property under circumstances where either the lease was void or where Defendants fraudulently induced Plaintiffs’ entrance into the lease. (Complaint, ¶ 291; see Complaint, ¶¶ 64, 214 [lease void], 276 [fraud to induce], 290 [incorporation into ninth cause of action].) Such pleadings cannot constitute receipt of stolen property for the reason that receipt of rental income by Defendants from Plaintiffs is not receipt of property already stolen by Plaintiffs. Further, regardless of whether the lease signed between the parties is void, an agreement existed for the rental of the property, where Plaintiffs were entitled to possession of the Subject Property in exchange for rental payments to Defendants but not entitled to both possession and the rental payments. (See Sixth Cause of Action discussion supra.)

Defendants’ demurrer is thus SUSTAINED, Without Leave to Amend, as to the Complaint’s ninth cause of action, as to All Defendants.

Tenth Cause of Action, Violation of Civil Code, § 1940.2: OVERRULED, as to Defendant Olmedo and Telebrown; SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

It is unlawful for a landlord to, for the purpose of influencing a tenant to vacate a dwelling:

(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code.

(2) Engage in conduct that violates Section 518 of the Penal Code.

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.

(4) Commit a significant and intentional violation of Section 1954.

(5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief.

(Civil Code, § 1940.2, subds. (a)(1)-(5).)

In relevant part, the tenth cause of action alleges that “[w]ith the intent to interfere with Plaintiffs’ quiet enjoyment of the Premises, Defendants engaged in the fraudulent scheme and a course of conduct that interfered with the Plaintiffs’ quiet enjoyment of the Premises, by serving invalid Notices, threatening eviction, threatening Plaintiffs dogs with physical harm, [and] serving an illegal Notice in violation of the Ordinance, and when those attempts to force Plaintiffs to vacate the Premises failed, prosecuted the Underlying Action without probable cause and lacking in legal merit, then dismissed the Underlying Action without serving the Request for Dismissal on Plaintiffs’ counsel so that Plaintiffs incurred additional legal fees and costs, the Request for Dismissal was without prejudice thereby leaving the door open for further eviction proceedings, and then seven (7) days later on July 4, 2022 renewed their fraudulent scheme of interfering with Plaintiffs’ quiet enjoyment of the Premises by yet another illegal Buyout Offer telling Plaintiffs [they] can leave the lawyers out of this in an attempt to force Plaintiffs to vacate their home and abandon their legal rights under State law, the LAMC and the RSO, all to Defendants[’] financial benefit.” (Complaint, ¶ 301; see Complaint, ¶¶ 82, 84 [serving the Notice to Quit underlying the Unlawful Detainer Action in March 2022 as based on Plaintiffs having dogs (pets) on the Subject Property, where a City of Los Angeles Municipal Code ordinance—Ordinance No. 186585, §49.99.2, C.—did not allow for an eviction on these grounds at that time], 158 [repeated pressure from Defendant Olmedo for Plaintiffs to vacate the Subject Property in exchange for money during a time of eviction protections, occurring approximately six times between February and June 2022], 176-77 [threats from Defendant De La Fe for Defendant Olmedo to visit the Subject Property with a baseball bat to “hit the dogs over the head to gain entry”], 296 [incorporation]; see also Complaint, ¶¶ 87, 100, 303 [disconnecting Plaintiffs’ access to utilities with the Los Angeles Department of Water and Power from April 2021 to July 2021, forcing Plaintiffs to bathe and wash clothes at friends’ houses], 149-52, 308 [Defendant Lee filing proofs of service for the summons and complaint in the Unlawful Detainer Action that were perjured because, despite the proofs of service indicating that Plaintiffs were served through service on Plaintiff Santos, Plaintiff Santos was allegedly working at the time of service, where the proofs of service were later used to obtain entry of default on Plaintiffs], 153-54, 305 [removal of a gate surrounding the Subject Property by Defendants without the consent of Plaintiffs] 296 [incorporation].)

In their demurrer, Defendants invoke the litigation privilege to argue that “Defendants had the right to serve notices for violations of the lease agreement on Plaintiffs,” where “Plaintiffs were committing acts that were in direct violation of their duties as tenants,” and where “[t]he lawsuit for unlawful detainer was dismissed without prejudice and the Plaintiffs continue to reside at the Property.” (Demurrer, 17:7-12.)

In opposition, Plaintiffs argue that while “Defendants may have had rights to serve notice,” they did not have the right to engage in conduct that “violated the law and the RSO” in relation to “unauthorized pets” or “to bring the action on the basis sought in the unlawful detainer action.” (Opp’n, 13:4-9.)

In reply, Defendants argue that “Plaintiffs consistently avoid the fact that the unlawful detainer action was voluntarily dismissed,” thus mooting any questions of whether Defendants had the legal right to bring the Unlawful Detainer Action. (Reply, 6:21-23.)

The Court finds that the tenth cause of action is sufficiently pleaded, at least as to two defendants. The paragraphs referenced ante, including the threats to Plaintiffs’ dogs, sufficiently invoke a concerted effort to use or threaten threats or menacing conduct to force Plaintiffs’ vacatur from the Subject Property.

Defendants’ demurrer is thus OVERRULED as to the Complaint’s tenth cause of action, but only as to Defendant Olmedo, who is alleged to have been involved in the threats to Plaintiffs’ dogs, and as to Defendant Telebrown, as the plaintiff in the Unlawful Detainer Action, allegedly brought to harass Plaintiffs under circumstances where the Underlying Action was filed on breach of contract grounds invalidated by Los Angeles Municipal Code ordinances related to COVID-19 and pets. (See Complaint, ¶ 306 [threats by Olmedo]; see also Complaint, ¶¶ 82-84 [service of Notice to Quit in March 2022 underlying the Unlawful Detainer Action initiated in May 2022 based on Plaintiffs having dogs (pets) on the Subject Property, where a City of Los Angeles Municipal Code ordinance—Ordinance No. 186585, §49.99.2, C.—did not allow for an eviction on these grounds at that time] & Ex. 1 [Unlawful Detainer Action complaint, filed by Telebrown on May 12, 2022]).

Defendants’ demurrer is accordingly SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon because it is unclear what conduct these Defendants engaged in to threat or menace Plaintiffs in an effort to force their vacatur from the Subject Property.

Eleventh Cause of Action, Violation of LAMC, §§ 45.33, 45.35, 151.31 and 151.33: SUSTAINED, With Leave to Amend.

Article 5.3 of Chapter IV the Los Angeles Municipal Code prohibits tenant harassment. (LAMC, § 45.33 [defining harassment].) “An aggrieved tenant under this article, or any person, organization, or entity who will fairly and adequately represent the interests of an aggrieved tenant(s) under this article, may institute civil proceedings as provided by law, against any landlord violating any of the provisions of this article and any person who aids, facilitates, and/or incites another to violate the provisions of this article, regardless of whether the rental unit remains occupied or has been vacated due to harassment.” (LAMC § 45.35(A).)

The Tenant Buyout Notification Program (LAMC, § 151.31) provides for regulation, monitoring and enforcement of voluntary vacancies of RSO rental units occurring pursuant to a Buyout Agreement. Tenants in all RSO rental units are protected from harassment as provided in Article 5.3 of Chapter IV of the Los Angeles Municipal Code, where tenant harassment includes offering payments to a tenant to vacate their unit without providing written notice to the tenant of their rights under Section 151.31 of this Code (Tenant Buyout Notification Program), using the form prescribed by the Department. (LAMC, § 151.33.)

The Complaint’s eleventh cause of action is premised on the same allegations as the tenth cause of action: “With the intent to harass and punish Plaintiffs for the exercise of those rights, Defendants engaged in the fraudulent scheme and conduct that escalated from serving invalid Notices, threatening eviction, threatening Plaintiffs[’] dogs with physical harm, [and] serving an illegal Notice in violation of the Ordinance, and when those attempts to force Plaintiffs to vacate the Premises failed, prosecuted the Underlying Action without probable cause and lacking in legal merit, dismissed the Underlying Action without serving the Request for Dismissal on Plaintiffs’ counsel so that Plaintiffs incurred additional legal fees and costs, the Request for Dismissal was without prejudice thereby leaving the door open for further harassment by eviction proceedings, and then seven (7) days later on July 4, 2022 renewed their fraudulent scheme of harassment by yet another illegal Buyout Offer telling Plaintiffs [they] can leave the lawyers out of this in an attempt to force Plaintiffs to vacate their home and abandon their legal rights under State law, the LAMC and the RSO all to Defendants[’] financial benefit.” (Complaint, ¶ 316; see Complaint, ¶¶ 318-25 [allegations regarding disconnection of LADWP utilities, buyout offers, removal of gate around the Subject Property, threats to Plaintiffs’ dogs, Notices to Quit, filing of Underlying Action without legal merit, falsification of proofs of service therefor].)

In their demurrer, Defendants argue that this cause of action is not sufficiently pleaded because: (1) the claim does not plead which ground under section 45.33 was violated; (2) the claim does not plead that, before filing suit, Plaintiffs gave written notice to the landlord regarding any alleged harassment violations and the landlord’s failure to remedy the repair or maintenance issue within a reasonable period of time; (3) the claim “does not bring up any reference to any tenant buyouts”; (4) filing suit for unlawful detainer following violations of a lease and the necessary steps and procedures to institute such an action is protected and does not qualify as harassment”; and (5) the Unlawful Detainer Action “was dismissed without prejudice.” (Demurrer, 17:14-10.)

In opposition, Plaintiffs argue that “[t]he Complaint sufficiently alleges the relevant provisions of the LAMC that were violated by Defendant Olmedo and De La Fa on the illegal bu[y]-outs without the proper paperwork required under the RSO,” that “Defendants Olemdo [sic] and De La Fa [sic] were the managers as alleged in the complaint,” “[w]here Defendants do not have a certificate of occupancy, register the rental units with the City of Los Angeles, and make illegal Buy-Out offers falls within the LAMC, specifically section 45.33 for such conduct.” (Opp’n, 13:14-21.)

In reply, Defendants argue that “Plaintiffs have failed to demonstrate that this code is applicable to the Property at issue” and that “filing suit for unlawful detainer following violations of a lease and the necessary steps and procedures to institute such an action is protected and does not qualify as harassment.” (Reply, 6:26-7:2.)

The Court finds that the eleventh cause of action is not sufficiently pleaded where the body of this claim does not specify the exact provisions of section 45.33 that have been violated, and where the Complaint does not clearly point to Defendants’ failure to provide written buyout notices related to their rights under section 151.31 of the Municipal Code.

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s eleventh cause of action.

Twelfth Cause of Action, Violation of Civil Code, § 1942.5: OVERRULED, as to Defendant Olmedo and Telebrown; SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

Civil Code section 1942.5 prohibits landlords from¿evicting¿residential tenants,¿raising their rent,¿or¿decreasing housing services in retaliation against the exercise of lawful tenant rights. (See Civ. Code, § 1942.5.)

The twelfth cause of action against all Defendants except Sacks and Lee alleges that “Plaintiffs complained to the HCIDLA [Los Angeles Housing Department Housing + Community Investment Department] for the Defendants[’] attempt to force Plaintiffs to vacate the Premises,” with “HCIDLA sen[ding] Defendants a letter to withdraw the Notice to Vacate but,” “rather than withdraw[ing] the Notice,” Defendants filed the Underlying Action against Plaintiffs.” (Complaint, ¶ 333; see Complaint, Ex. 19 [copy of HCIDLA letter to Defendants March 30, 2022].)

In their demurrer, Defendants argue that “Plaintiffs have not produced sufficient allegations to prove that the Defendants’ conduct was retaliatory,” particularly where “correspondence between the parties tends to show that Defendants were professional and courteous at all stages.” (Demurrer, 18:23-26.)

In opposition, Plaintiffs argue that “Plaintiffs[‘] Complaint consists of 450 paragraphs setting forth Defendants conduct and action during these proceedings.” (Opp’n, 13:27-28.)

In reply, Defendants reiterate their points in the motion. (Reply, 7:20-24.)

The Court finds that the twelfth cause of action is sufficiently pleaded as to Defendant Olmedo and Defendant Telebrown.

Defendant Olmedo is shown by evidence attached to the Complaint to have been the landlord at issue. (Complaint, Ex. 1, Sub-Ex. 1, p. 1, § 3 [“Rent shall be delivered to … Alex Olmedo”] & Bed Bug Disclosure, p. 1 [“Alex Olmedo is referred to as (‘Landlord’)”].) Defendant Telebrown is shown by evidence attached to the Complaint to have been the plaintiff initiating the Unlawful Detainer Action. (Complaint, Ex. 1.)

The Unlawful Detainer Action—filed in May 2022 and seeking Plaintiffs’ eviction from the Subject Property based on breach of the lease agreement as premised on Plaintiffs’ maintenance of dogs on the property—closely followed a March 2022 letter from the Los Angeles Housing Department Housing + Community Investment Department (HCIDLA) to Defendants Telebrown and Coons directing the Defendants to cancel a Notice to Vacate against Plaintiffs dated February 15, 2022 on alleged grounds of nonpayment of rent. (Complaint, ¶¶ 333-34, Ex. 19; see Complaint, ¶ 113, Ex. 15 [February 15, 2022 Notice to Quit was based on “the property … [being] transferred into a partnership … [where] the site w[ould] undergo significant demolition/ construction,” and for which reason Plaintiffs were required to “vacate the property no later than March 31st, 2022”].) These circumstances are pleaded sufficiently close in time for the Court to conclude that Defendants’ pivot to the Unlawful Detainer Action as based on the presence of dogs on the Subject Property was retaliatory against Plaintiffs’ efforts to maintain their tenancy over the Subject Property, particularly where the Complaint pleads that evictions based on the presence of pets in a subject property was prohibited as of March and May 2022. (Complaint, ¶¶ 82-84 [service of Notice to Quit underlying the Unlawful Detainer Action made in March 2022 based on Plaintiffs having dogs (pets) on the Subject Property, where a City of Los Angeles Municipal Code ordinance—Ordinance No. 186585, §49.99.2, C.—did not allow for an eviction on these grounds at that time].)

Additionally, the Complaint pleads that Defendants breached the terms of the lease agreement by failing to pay LADWP utility bills between April 2021 and August 2022, which could be, in light of the history of the parties in the pleadings, viewed as retaliatory action in the form of decreasing housing services. (Complaint, ¶¶ 87-89, 260 [utilities not paid through filing of date of Complaint], 329 [incorporation into twelfth cause of action].)

Defendants’ demurrer is thus OVERRULED as to the Complaint’s twelfth cause of action insofar as it is directed at Defendants Olmedo and Telebrown.

However, Defendants’ demurrer is SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon because it is unclear what retaliatory action these Defendants undertook against Plaintiffs where only Olmedo is shown by the Complaint’s exhibits to be the landlord of the Subject Property and Telebrown is shown to be the landowner or landlord bringing the Unlawful Detainer Action against Plaintiffs.

Thirteenth Cause of Action, Intentional Breach of the Implied Warranty of Habitability: SUSTAINED, With Leave to Amend.

The elements of an affirmative cause of action for breach of the implied warranty of habitability are (1) a material defective condition affecting the habitability of the premises, (2) notice to the landlord within a reasonable time after the tenant’s discovery of the substandard condition, (3) the landlord was given a reasonable time to remedy the condition, and (4) resulting damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297; Quevedo v. Braga (1977) 72 Cal.App.3d Supp. 1, 7-8, disapproved on other grounds in Knight v. Hallsthmmar (1981) 28 Cal.3d 46, 55 fn. 7.)

The thirteenth cause of action against all Defendants except Sacks and Lee alleges that incorporated pleadings of defective conditions in the Subject Property were “done intentionally and in callous disregard for the comfort, safety, health[,] and well-being of Plaintiffs, and were further done for the purpose of turning a profit for Defendants at the expense of Plaintiffs, and defeating their rights, and for the purpose of oppressing and inflicting emotional and physical distress upon Plaintiffs.” (Complaint, ¶¶ 342-46.)

In their demurrer, Defendants argue that the “[t]he Complaint does not allege that the Property was uninhabitable” and “Plaintiffs d[o] not provide any information or details that would allow a fact finder to conclude that Defendants committed such a breach.” (Demurrer 18:13-15.)

In opposition, Plaintiffs argue that the Complaint alleges that the Subject Property lacked a certificate of occupancy, rendering it per se uninhabitable. (Opp’n, 14:16-18.)

In reply, Defendants reiterate their positions in the motion. (Reply, 8:11-13.)

The Court finds that the thirteenth cause of action, as pleaded and framed by the opposition, does not sufficiently allege a cause of action for breach of warranty of habitability because the Complaint does not anywhere explain how the lack of a Certificate of Occupancy renders the condition of a rental uninhabitable, either as a matter of law or based on the circumstances surrounding the condition of the Subject Property, at most perhaps alleging at paragraph 65 that the failure to secure such a certificate made the lease agreement “void ab initio.” (See Complaint, ¶¶ 17(3)-(5), 17(14), 46, 65, 96-97, 99, 141, 178, 182, 274, 278, 357, 427, 444 [pleadings as to Certificate of Occupancy].)

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s thirteenth cause of action.

Fourteenth Cause of Action, Intentional Violation of Statutory Duty: SUSTAINED, With Leave to Amend.

The elements of an affirmative cause of action for breach of the implied warranty of habitability are (1) a material defective condition affecting the habitability of the premises, (2) notice to the landlord within a reasonable time after the tenant’s discovery of the substandard condition, (3) the landlord was given a reasonable time to remedy the condition, and (4) resulting damages. (Erlach v. Sierra Asset Servicing, LLC, supra, 226 Cal.App.4th at p. 1297; Quevedo v. Braga, supra, 72 Cal.App.3d Supp. at pp. 7-8, disapproved on other grounds in Knight v. Hallsthmmar, supra, 28 Cal.3d at p. 55 fn. 7.)

The fourteenth cause of action against all Defendants except Sacks and Lee alleges that Defendants “failed to exercise ordinary and reasonable care in complying with” “California Health and Safety Code, §17920.3” by failing to “to maintain residential premises in a safe and habitable condition, to provide tenants with the quiet use and enjoyment of their residential rental dwellings” without elaboration. (Complaint, ¶¶ 347-53.)

In their demurrer, Defendants argue that “the Complaint does not allege that the Property was uninhabitable or unsafe,” “Plaintiffs did not provide any information or details that would allow a fact finder to conclude that Defendants committed such a violation,” and “this cause of action makes it unclear what alleged Statutory Duty was owed to Plaintiffs and which Defendants owed … those specific duties.” (Demurrer, 19:18-22.)

In opposition, Plaintiffs argue that “[a] statutory duty includes a landlord possessing a certificate of occupancy for the rental unit,” for which reason “Plaintiffs[‘] [pleadings] have provided sufficient information that would allow a fact finder to conclude that Defendants committed … a violation” of California Health and Safety Code section17920.3. (Opp’n, 14:21-23.)

In reply, Defendants reiterate their points in the motion. (Reply, 8:16-18.)

The Court adopts its discussion as to the thirteenth cause of action to determine that the fourteenth cause of action does not sufficiently elaborate on how failure to hold a Certificate of Occupancy for the Subject Property rendered it uninhabitable.

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s fourteenth cause of action.

The Court notes, however, that to the extent that this cause of action would be duplicative of any amended thirteenth cause of action, it could be subject to demurrer. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth, supra, 248 Cal.App.4th at p. 290 [“a cause of action for breach of governing documents [that] appear[ed] to be duplicative of [a] cause of action for breach of fiduciary duty” is “recognized … as a basis for sustaining a demurrer”]; compare Complaint, Thirteenth COA [Breach of the Implied Warranty of Habitability], with Complaint, Fourteenth COA [Violation of Statutory Duty related to Breach of the Implied Warranty of Habitability].)

Fifteenth Cause of Action, Negligence, Civil Code, § 1714: SUSTAINED, With Leave to Amend.

“‘The elements of a cause of action for negligence are … “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The fifteenth cause of action against all Defendants except Sacks and Lee alleges that Defendants owed Plaintiffs duties of care arising out of the lease and State and local law, and breached these duties through “failure to comply with LAMC, §12.21.A.1., not possessing a Certificate of Occupancy for the rental until, failure to register the rental unit[,] and failure to post the Registration Certificate at the Premises.” (Complaint, ¶ 357.)

In their demurrer, Defendants argue that “Plaintiffs have failed to allege that any act by Defendants were willful and ultimately that they have actually suffered an injury for which this statute was intended to protect” and that “Plaintiffs state … Defendants failed to provide a safe and habitable unit (¶355 Complaint) yet [provide] no information … in the Complaint that shows the unit was unsafe or uninhabitable.” (Demurrer, 19:27-20:3.)

In opposition, Plaintiffs argue that “Defendants … [are pleaded not to have] possess[ed] a certificate of occupancy [for the Subject Property,] which ma[de] the rental unit uninhabitable as discussed” elsewhere in the opposition. (Opp’n, 15:8-9.)

In reply, Defendants reiterate their points in the motion. (Reply, 8:24-9:2.)

The Court adopts its discussion as to the thirteenth cause of action to determine that the fifteenth cause of action does not sufficiently elaborate on how failure to hold a Certificate of Occupancy for the Subject Property constituted negligence.

The Court also notes that the referenced Municipal Code section reads: “No building or structure shall be erected, reconstructed, structurally altered, enlarged, moved, or maintained, nor shall any building, structure, or land be used or designed to be used for any use other than is permitted in the zone in which such building, structure, or land is located and then only after applying for and securing all permits and licenses required by all laws and ordinances.” (LAMC, § 12.21.A.1.) The pleadings do not clarify how failing to secure a Certificate of Occupancy for the Subject Property amounts to a “use other than is permitted in the zone in which [the Subject Property] is located.”

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s fifteenth cause of action.

Sixteenth Cause of Action, Private Nuisance, Civil Code, § 3479: SUSTAINED, With Leave to Amend.

“A nuisance may be either a negligent or an intentional tort.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) In order to state a claim for private nuisance, Plaintiff must allege (1) “an interference with his use and enjoyment of his property,” (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., that it causes the plaintiff to suffer substantial actual damage,” and (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable [], i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63 [brackets, emphasis, and quotation marks omitted].)

The sixteenth cause of action against all Defendants except Sacks and Lee alleges that “Defendants failure to comply with LAMC, §12.21.A.1., not possessing a registration statement for the rental until, failure to post the registration statement at the Property as described herein was knowing, intentional, willful, and malicious, and was done with full knowledge of the discomfort and annoyance which said failure would cause Plaintiffs, and was further done in conscious disregard of Plaintiffs’ rights.” (Complaint, ¶ 361.)

In their demurrer, Defendants argue that “Plaintiffs are alleging facts that … [amount] to a fear of future harm, such as eviction or a future declaration of where the property is situated,” insufficient for nuisance purposes, and where “[t]here are insufficient facts demonstrating that a private nuisance has occurred, particularly as a result of any actions by the Defendants.” (Demurrer, 20:14-17.)

In opposition, Plaintiffs argue that “Defendants … [are pleaded] not [to have] possess[ed] a certificate of occupancy[,] which ma[de] the rental unit uninhabitable” and amounts to “a nuisance as alleged in the Complaint.” (Opp’n, 15:13-15.)

In reply, Defendants argue that “[t]here are insufficient facts demonstrating that a private nuisance has occurred, particularly as a result of any actions by the Defendants” where “Plaintiffs merely suggest that there was not a certificate of occupancy, which is irrelevant.” (Reply, 9:12-14.)

The Court adopts its discussion as to the thirteenth cause of action to determine that the sixteenth cause of action does not sufficiently elaborate on how failure to hold a Certificate of Occupancy for the Subject Property constituted private nuisance.

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s sixteenth cause of action.

Seventeenth Cause of Action, Intentional Infliction of Emotional Distress: OVERRULED, as to Defendants Olmedo and Telebrown; SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

The seventeenth cause of action alleges, inter alia, that “Defendants continuously engaged in oppressive conduct towards Plaintiffs, in an effort to intimidate and coerce Plaintiffs to vacate the RSO unit and denying Plaintiffs their rights under the LAMC and RSO,” including (1) “Defendants De La Fe[‘s] and Olmedo[‘s] statements of threatening to harm Plaintiffs[‘] dogs with a baseball bat” with “the conduct of Defendants Olmedo and De La Fe” being “ratified and/or authorized” by “Defendants” “by vesting them with management authority over the rental unit and the Premises,” (2) “Defendant Olmedo’s false Proof of Service,” (3) “Defendant Lee’s false Proof(s) of Service,” and (4) “Defendant Sacks’ filing of the false Proof(s) of Service” in connection with the initiation and maintenance of the Unlawful Detainer Action. (Complaint, ¶¶ 365-72.)

In their demurrer, Defendants argue that “[t]he complaint is devoid of allegations of extreme and outrageous conduct[] by any of the defendants” because “[f]iling a lawsuit does not constitute ‘odious’ conduct, especially when proper procedure has been followed with communication and notice” and where “the unlawful detainer was dismissed without prejudice and there was no finding in favor or against Plaintiffs.” (Demurrer, 21:11-14.)

In opposition, Plaintiffs argue that Defendants are pleaded to have engaged in outrageous conduct insofar as the Complaint pleads “threat[s] to hit a person’s dog with a baseball bat,” service a Notice to Vacate and Notice to Quit in violation of rent control ordinances, and failure to possess a Certificate of Occupancy. (Opp’n, 15:28-16:5.)

In reply, Defendants argue that “[t]here are no allegations of extreme and outrageous activity occurring in the presence of Plaintiffs” where “Plaintiffs merely claim that there was not a certificate of occupancy.” (Reply, 9:21-23.)

The Court finds that the Complaint adequately alleged IIED against Defendants Olmedo, De La Fe, Telebrown, Sacks, and Lee. In relevant part, Olmedo and De La Fe are alleged to have threatened violence on Plaintiffs’ dogs for the purpose of gaining entry into the Subject Property (Complaint, ¶¶ 176-77), and Telebrown is shown to have brought the Unlawful Detainer Action (Complaint, Ex. 1) under alleged circumstances where such an action was based on Plaintiffs’ having dogs (pets) on the Subject Property but where a City of Los Angeles Municipal Code ordinance—Ordinance No. 186585, §49.99.2, C.—did not allow for an eviction on these grounds at that time (Complaint, ¶¶ 82-84). The Court determines that this conduct, if taken as true, could amount to an outrageous attempt to intimidate tenants to leave their rental property during a time of eviction protections.

However, the claims do not sufficiently tie in Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon to the IIED claim because the threats to the dogs and alleged wrongful filing of the Unlawful Detainer Action are not actions tied to them by some theory of joint liability.

Defendants’ demurrer is thus OVERRULED as to the Complaint’s seventeenth cause of action insofar as it is directed at Defendants Olmedo and Telebrown.

However, the demurrer is SUSTAINED, With Leave to Amend, as to the Complaint’ seventeenth cause of action insofar as it is directed at Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon.

Eighteenth Cause of Action, Negligent Misrepresentation: SUSTAINED, With Leave to Amend.

Allegations of fraud “must be pled with more detail than other causes of action.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, supra, 158 Cal.App.4th at p. 240.) “Every element of the cause of action for fraud must be alleged … factually and specifically[,] and the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citations.]” (Committee on Children’s Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 216, superseded by Statute as stated in Branick v. Downey Savings & Loan Assn., supra, 39 Cal.4th at p. 242.) “[G]eneral and conclusory allegations do not suffice.” (Small v. Fritz Cos., Inc., supra, 30 Cal.4th at p. 184 [citations omitted].) Fittingly, a plaintiff pleading fraud must plead facts showing “how, when, where, to whom, and by what means” the allegedly fraudulent representations were tendered. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

In their demurrer, Defendants argue that “Plaintiffs did not specify with particularity which Defendants allegedly made a fraudulent misrepresentation or sufficient surrounding details about their allegations and who they made those representations to and when,” for which reason “[i]t is impossible from the facts alleged to decipher what happened to justify these allegations.” (Demurrer, 22:1-4.)

In opposition, Plaintiffs argue that “Plaintiffs have specified with particularity as to the respective Defendants conduct alleged to have made a fraudulent misrepresentation or sufficient surrounding details about their allegations as those representations to and when.” (Opp’n, 16:13-15.)

In reply, Defendants reiterate their points in the motion. (Reply, 10:6-9.)

The Court finds that a review of the negligent misrepresentation claim shows a negligence claim failing to explain which false representations were negligently made to Plaintiffs by all Defendants. (See Complaint, ¶¶ 377-83.)

Defendants’ demurrer is thus SUSTAINED, With Leave to Amend, as to the Complaint’s eighteenth cause of action.

Nineteenth Cause of Action, Abuse of Process: OVERRULED, as to Defendant Telebrown; SUSTAINED, With Leave to Amend, as to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo.

“To establish a cause of action for abuse of [court] process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the [court] process and (2) committed a wil[l]ful act in a wrongful manner.” (Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782, 792 [citations omitted].) “[T]he mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.” (JSJ Limited v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [citations omitted].) Instead, “there must be subsequent abuse, by a misuse of the judicial process for a purpose other than that which it was intended to serve.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 530 [citations omitted].)

The nineteenth cause of action against all Defendants except De La Fe alleges Abuse of Process on the grounds that Defendants obtained a default against Plaintiffs by filing a false proof of service of the summons and complaint for the Unlawful Detainer Action, constituting an illegal motive through which Defendants sought to obtain an advantage in that lawsuit. (Complaint, ¶¶ 384-88.)

As discussed in the Preliminary Consideration discussion ante, the Court only considers arguments in the demurrer’s points and authorities through page 23—i.e., the 15th page in the points and authorities supporting the demurrer—and therefore does not consider the arguments made on page 24 of the demurrer against the sufficiency of the nineteenth cause of action. (See Preliminary Consideration discussion supra.)

A review of the arguments on pages 22 and 23 of the demurrer show a string of case law without application to the pleadings in the Complaint until page 24 of the demurrer, which is not considered. (See Demurrer, 22:10-24:8 [cited case law], 24:9-14 [application to pleadings].)

In opposition, Plaintiffs argue that “Defendants ulterior motive a[s] stated in paragraph 169 of the Complaint, stated in part ‘Defendants acted and entertained an ulterior motive in using the false Proof(s) of Service as the basis for their actions, namely, the Trust sought to obtain possession in a manner that violated Plaintiffs’ due process rights so that Plaintiffs would not be able to defend the Underlying Action and deny Plaintiffs their rights under the RSO so that the Defendants would avoid their duties under the RSO.’” (Opp’n, 16:19-24.)

In reply, Defendants argue that “[t]he law is clear and unambiguous in support of the filing of the unlawful detainer claim and how it protects the Defendants against allegations of abuse of process” and that “[t]he Defendants believed Plaintiffs to be in violation of the lease agreement, notice was provided to Plaintiffs with opportunities to rectify the issues, and when the violations continued, Defendants proceeded with the next legal step” under circumstances where there was “no ill will or improper purpose.” (Reply, 10:20-25.)

The Court finds that the nineteenth cause of action is sufficiently stated only as to Defendants Sacks, Lee, and Telebrown because the nineteenth cause of action alleges abuse of court process based on these Defendants’ participation in securing an entry of default against Plaintiffs in the Unlawful Detainer Action through false service of process effected by Defendant Lee and filed with the Court by Defendant Sacks for the purpose of wrongfully evicting Plaintiffs from the Subject Property at a time when Plaintiffs were protected by the Los Angeles Municipal Code. (See Complaint, ¶¶ 149-52, 384-88; see also Complaint, Ex. 1 [Telebrown as party bringing Unlawful Detainer Action].)

However, the pleadings are not clear as to how the remaining Defendants—specifically Defendants Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo—are liable for the conduct of Sacks and Lee, e.g., through pleadings of a joint concerted effort to initiate the Unlawful Detainer Action pursuant to a conspiracy or like grounds of joint liability.

Defendants’ demurrer is thus OVERRULED as to Defendant Telebrown.

However, Defendants’ demurrer is SUSTAINED, With Leave to Amend, as to the Complaint’s nineteenth cause of action, as directed at Defendants Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo.

Twentieth Cause of Action, Aiding and Abetting: OVERRULED.

Because Defendants’ arguments related to the twentieth cause of action are contained in the 16th and 17th overall pages of Defendants’ points and authorities on demurrer—where 15 pages is the limit for motions not involving summary judgment or adjudication (Cal. Rules of Court, rule 3.1113, subd. (d)—the Court does not consider these arguments. (See Preliminary Consideration discussion supra.)

As a result, the Court also does not consider Defendants’ reply arguments raised in support of demurrer to this cause of action. (See Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 [Courts need not accept arguments raised for the first time on reply without good cause explanation as to why points were not raised earlier].)

Defendants’ demurrer is thus OVERRULED as to the Complaint’s twentieth cause of action.

Twenty-First Cause of Action, Malicious Prosecution: OVERRULED.

Because Defendants’ arguments related to the twenty-first cause of action are contained in the 17th overall page of Defendants’ points and authorities on demurrer—where 15 pages is the limit for motions not involving summary judgment or adjudication (Cal. Rules of Court, rule 3.1113, subd. (d)—the Court does not consider these arguments. (See Preliminary Consideration discussion supra.)

As a result, the Court does also not consider Defendants’ reply arguments raised in support of demurrer to this cause of action. (See Nordstrom Com. Cases, supra, 186 Cal.App.4th at p. 583 [Courts need not accept arguments raised for the first time on reply without good cause explanation as to why points were not raised earlier].)

Defendants’ demurrer is thus OVERRULED as to the Complaint’s twenty-first cause of action.

Conclusion

(1) OVERRULED as to the Complaint’s first cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(2)(a) OVERRULED as to the Complaint’s second cause of action, with respect to Defendants Olmedo and Telebrown;

(2)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s second cause of action, with respect to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon;

(3) OVERRULED in Full as to the Complaint’s third cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(4) SUSTAINED, With Leave to Amend, as to the Complaint’s fourth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(5)(a) OVERRULED as to the Complaint’s fifth cause of action, with respect to Defendants Olmedo and Telebrown;

(5)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s fifth cause of action, with respect to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon;

(6) SUSTAINED, Without Leave to Amend, as to the Complaint’s sixth cause of action, with respect to all Defendants;

(7) SUSTAINED, Without Leave to Amend, as to the Complaint’s seventh cause of action, with respect to all Defendants;

(8)(a) OVERRULED as to the Complaint’s eighth cause of action, with respect to Defendant Olmedo;

(8)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s eighth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon;

(9) SUSTAINED, Without Leave to Amend, as to the Complaint’s ninth cause of action, with respect to all Defendants;

(10)(a) OVERRULED as to the Complaint’s tenth cause of action, with respect to Defendants Olmedo and Telebrown;

(10)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s tenth cause of action, with respect to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon;

(11) SUSTAINED, With Leave to Amend, as to the Complaint’s eleventh cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(12)(a) OVERRULED as to the Complaint’s twelfth cause of action, with respect to Defendants Olmedo and Telebrown;

(12)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s twelfth cause of action, with respect to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon;

(13) SUSTAINED, With Leave to Amend, as to the Complaint’s thirteenth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(14) SUSTAINED, With Leave to Amend, as to the Complaint’s fourteenth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(15) SUSTAINED, With Leave to Amend, as to the Complaint’s fifteenth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(16) SUSTAINED, With Leave to Amend, as to the Complaint’s sixteenth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(17)(a) OVERRULED as to the Complaint’s seventeenth cause of action, with respect to Defendants Olmedo and Telebrown;

(17)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s seventeenth cause of action, with respect to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), and Calderon;

(18) SUSTAINED, With Leave to Amend, as to the Complaint’s eighteenth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(19)(a) OVERRULED as to the Complaint’s nineteenth cause of action, with respect to Defendant Telebrown;

(19)(b) SUSTAINED, With Leave to Amend, as to the Complaint’s nineteenth cause of action, with respect to Defendants Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo;

(20) OVERRULED as to the Complaint’s twentieth cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo; and

(21) OVERRULED as to the Complaint’s twenty-first cause of action, with respect to Defendants Telebrown, Jagarn, Brevik (individually and as Manager of Jagarn), Calderon, and Olmedo.