Judge: Armen Tamzarian, Case: 23STCV06798, Date: 2023-11-14 Tentative Ruling

Case Number: 23STCV06798    Hearing Date: November 14, 2023    Dept: 52

Defendant Julia Lopez Valente’s Demurrer to Complaint

Defendant Julia Lopez Valente demurs to the first, second, third, fourth, sixth, and 10th causes of action alleged by plaintiffs Anairel Diaz, Fredy Aguirre and minors Freddy Aguirre, Axel Aguirre, and Asha Aguirre.

1st through 4th and 6th Causes of Action

            Plaintiffs do not allege sufficient facts for these causes of action against Valente.   These causes of action are: (1) breach of contract (lease agreement), (2) breach of warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) collection of rent on substandard dwelling, and (6) retaliatory eviction.  Defendant Valente demurs on the basis that the complaint does not allege any landlord/tenant relationship between her and plaintiffs. 

These causes of action are only properly alleged against plaintiffs’ landlords.  For example, “[t]o prove breach of contract, plaintiff must show that the parties had, and defendants breached, an enforceable agreement.”  (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1037.)  Someone who is not a party to the contract and has no obligations under it cannot be liable for breach of contract.  Similarly, for breach of the warranty of habitability, “a tenant may bring suit against the landlord for damages resulting from” the breach.  (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

This action arises from a landlord/tenant dispute regarding plaintiffs’ residence at 139 1/2 West 42nd Street, Los Angeles.  (Comp., ¶ 2.)  The complaint makes only the following allegations about Julia Lopez Valente: “Defendants Saul Diaz and Maria Adela Diaz [who own the premises] leased Property to Defendant Juila Lopez Valente, a well-known individual to Defendants Saul Diaz and Maria Adela Diaz.”  (¶ 50); “At all relevant times that Defendant Julia Lopez Valente has lived or resided on Property, Defendants Saul Diaz and Maria Adela Diaz have directed Defendant Valente to harass, retaliate, bother, create a constant and ongoing nuisance, and commit acts towards Plaintiffs that would force Plaintiffs to move out of the Property” (¶ 51); Valente “bang[ed] on [plaintiffs’] front door with a metal bar,” yelled at them, and “attacked Plaintiff Diaz with a metal pole” (¶¶ 52-55); the property owners “purposely placed Defendant in the Property by renting the front building on Property to” her (¶ 168); and Valente “engaged in several intimidating acts towards Plaintiffs at the direction of” the property owners (¶ 168).

In other words, the complaint alleges Valente was plaintiffs’ neighbor but assisted plaintiffs’ landlords in a course of tortious conduct.  Even if she committed battery against plaintiffs—a separate cause of action to which she does not demur—that does not make her a party to the lease, nor a proper defendant for a claim for retaliatory eviction or any of these other causes of action.

            Plaintiffs’ opposition argues Valente is liable for these causes of action because she is the landlords’ agent.  Even assuming plaintiffs allege sufficient facts for an agency relationship, they cite no authority for the proposition that being the landlords’ agent would make her liable for these landlord/tenant claims. 

An agent is only “responsible to third persons as a principal for his acts in the course of his agency… 1. When, with his consent, credit is given to him personally in a transaction; 2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or, 3. When his acts are wrongful in their nature.”  (Civ. Code, § 2343.)  Plaintiffs do not allege facts constituting either of the first two exceptions.  The third exception merely “ ‘recognizes the elementary rule that every one is liable for his torts, and an agent or servant no exception merely because such.’ ”  (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 694.)  Valente thus can be liable for allegedly assaulting or battering plaintiffs in the scope of her agency.  But agency cannot make her liable for breaching any obligation owed only by the principals. 

Moreover, plaintiffs do not even allege that Valente personally committed any of the acts giving rise to the first through fourth causes of action.  The first cause of action alleges various breaches not involving Valente whatsoever.  (Comp., ¶¶ 70-71.)  The second alleges “defective conditions on the property” (¶ 75), again not involving Valente.  The third alleges various things such as “intentional water shut offs,” “defective doors,” and numerous other events not involving Valente.  (¶ 84.)  The fourth alleges unlawful “collection of rent on substandard dwelling” (p. 17, line 16) but does not allege Valente collected the rent.

Plaintiffs’ opposition further argues, “Defendant Valente is named as a defendant on these causes of action due to her involvement, as an agent of Plaintiffs landlords, in the constant harassing of all Plaintiffs, and the eventual assault and battery committed against Plaintiff Anairel Diaz.”  (Opp., p. 4.)  In other words, because Valente was involved in other causes of action that can properly be alleged against her, she is also named as a defendant to causes of action that are exclusively available against a landlord.  That is not a valid basis for naming someone as a defendant to these causes of action.

10th Cause of Action: “Concert of Action; Civil Harassment CA Civ. Code [sic] 527.6”

Plaintiffs do not allege sufficient facts for this purported cause of action.  As defendant correctly argues, this is not a cause of action at all.  “Conspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another.”  (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.)  The complaint makes the conclusory allegation of “a pattern of conduct composed of a series of acts over a period of time that threaten, stalk, batter, humiliate and threaten acts of violence against Plaintiffs” (¶ 150) without any allegations stating what those acts were.  Assuming the complaint alleges the underlying acts, this cause of action merely duplicates the tort claims and is therefore superfluous.

As for Code of Civil Procedure (not Civil Code) section 527.6, that is not a cause of action for damages.  It is procedural statute setting forth the provisional remedy of “a temporary restraining order” (id., subd. (a)(1)) for “civil harassment” (id., subd. (r)(1)).  (See Hansen v. Volkov (2023) 96 Cal.App.5th 94, 314 Cal.Rptr.3d. 1, 8 [discussing “petition for a civil harassment restraining order” under CCP § 527.6].)  The complaint’s allegations for this cause of action, however, refer only to damages, not a restraining order.  (Comp., ¶¶ 149-153.)  Moreover, seeking a civil harassment restraining order requires using mandatory Judicial Council form CH-100.  (CCP § 527.6(x)(1)-(2).) 

Plaintiffs’ opposition argues this cause of action constitutes aiding and abetting.  (Opp., p. 6, citing CACI No. 3610 [“Aiding and Abetting Tort”].)  But, like conspiracy, aiding and abetting does not stand on its own.  It refers to “ ‘subjecting a defendant to liability for aiding and abetting a tort.’ ”  (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1475.)  For example, one can be liable for “aiding and abetting a breach of fiduciary duty.”  (Id. at p. 1474.) 

Plaintiffs’ reliance on Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 (Sindell) is misplaced.  There, the California Supreme Court addressed “the so-called ‘concert of action’ theory” (id. at p. 603) as a way “that defendants may be held liable for concerted tortious acts” (id., at p. 605).  As with conspiracy and aiding and abetting, this is a theory of liability to make other defendants liable for an underlying tort such as negligently shooting someone (id. at p. 606 [discussing case where “three hunters negligently shot at a mudhen in decedent’s direction”]) or, in Sindell, against “drug manufacturers liable for injuries allegedly resulting from DES”, a drug marketed to prevent miscarriages “prescribed to the plaintiffs’ mothers” (id. at p. 597). 

The purpose of the “concert of action” theory is to hold multiple defendants liable when they acted in concert and, though only one of them could have caused the injury, it is impossible to prove which one.  (Sindell, 26 Cal.3d at pp. 598-599 [“it could not be determined which of” two hunters “had fired the shot which actually caused the injury to the plaintiff’s eye, but both defendants were nevertheless held jointly and severally liable for the whole of the damages”].)  The theory has no application here.

Disposition

            Defendant Julia Lopez Valente’s demurrer to plaintiffs’ first, second, third, fourth, sixth, and 10th causes of action is sustained with 20 days’ leave to amend.