Judge Bruce G. Iwasaki, Case Number: 24STCV15841, Date: 2024-11-06 Tentative Ruling

Tentative Ruling: The Demurrer is Sustained, with leave to amend.

This case arises out of an alleged breach of a written rental agreement. Plaintiff Keith Troy (Plaintiff) filed suit against Defendant Vietnamese United Buddhist Churches (Defendant) and Does 1 to 50.

On June 25, 2024, Plaintiff filed a Complaint. On July 18, 2024, Plaintiff filed a First Amended Complaint.

On September 6, 2024, Plaintiff filed a Second Amended Complaint (SAC), alleging causes of action for (1) breach of contract; (2) promissory fraud; (3) private nuisance; (4) illegal entry (Civ Code, § 1954.); (5) breach of the covenant of quiet enjoyment (Civ. Code, § 1927); (6) retaliatory eviction (Civ. Code, § 1942.5, subd. (d).); (7) negligence; (8) tenant harassment (Los Angeles Municipal Code (LAMC) Chapter IV, Article 5.3 §§ 45.35, et seq., and also LAMC Chapter XV, Article 1 § 151.33.); and (9) illegal rent (LAMC Chapter XV, Article 1, § 151.04, subd. (A).)

On October 4, 2024, Defendant demurred to the SAC. Plaintiff opposes the demurrer. On October 30, 2024, Defendant filed a reply.

The meet and confer requirement is met. (See Declaration of Olesya Mikhaylova [Mikhaylova Decl.], ¶¶ 2-3, Exh. A, Exh. B. at p. 8.)

A demurrer is an objection to a pleading on grounds which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A special demurrer attacks a pleading for uncertainty, while a general demurrer points out substantive pleading defects such as failure to state a cause of action or affirmative defenses (e.g., statute of limitations or waiver).” (Ojavan Investors, Inc. v. California Coastal Comm’n (1997) 54 Cal.App.4th 373, 384, fn. 8.)

The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “‘treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Defendant first argues that all causes of action are uncertain because the SAC is

disorganized, incoherent, and unintelligible. A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Defendant argues Plaintiff’s breach of contract claim fails to clearly state which agreement is the basis of his contract claim: the lease agreement, the reduced rent agreement, or the agreement to evict the tenant Rofick Akbar and Vance Kornegay (Kornegay). Additionally, the SAC makes contradictory statements regarding rent payments and credits.

To state a cause of action for breach of contract, a complaint must allege: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages to plaintiff. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) At issue here is the existence of a contract between the parties.

In opposition, Plaintiff asserts the SAC sufficiently states four breaches of contract for illegal entry into Plaintiff’s apartment, Defendant canceling the rental agreement, Defendant refusing Plaintiff’s rental payments, and Defendant’s alleged employee and property manager, Tho Chau (Chau), threatening to evict Plaintiff.

The Court finds breach of contract claim to be ambiguous and incoherent. Plaintiff alleges he signed a contract on June 1, 2023 and paid $750.00 in rent and a security deposit on June 1, 2023. (SAC, ¶¶ 72-73, 82.) The SAC alleges Defendant breached the contract by not evicting Kornegay by the end of June 2023. (SAC, ¶ 83.) Plaintiff attached a copy of the June 1, 2023 agreement to the SAC, but it does not reference a provision in the rental agreement stating Kornegay’s eviction was a provision of the rental agreement. This calls into question which agreement is the basis of Plaintiff’s breach of contract claim.

Defendant argues the promissory fraud claim is uncertain because Plaintiff fails to plead actions that show inducement.

To state a claim for promissory fraud, a plaintiff must allege a promise “that the promisor did not intend to perform at the time the promise was made, that the promise was intended to deceive and induce reliance, that it did induce reliance, and that this reliance resulted in damages.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1411.)

Here, the SAC alleges two acts used to induce Plaintiff to assume rent payments, as of April 1, 2023 and to enter into a written rental agreement. First, Plaintiff states that Chau promised Plaintiff that Defendant would promptly evict both Rofick Akbar and Kornegay. (SAC, ¶ 173(a).) Second, Chau promised to promptly clear out any items remaining in the front section of the apartment and to clean up the entire area. (SAC, ¶ 174.) Plaintiff allegedly signed the agreement in reliance on this promise, and Kornegay remained in the apartment thereafter.

In reply, Defendant argues that other SAC allegations directly conflict with Plaintiff’s claim that Defendant did not intend to evict Kornegay. For example, the SAC states that on February 22, 2024, Yoland Bowman, a VUBC employee, texted Plaintiff confirming she served a 60-day eviction notice on Kornegay to vacate the premises and that the notice did not pertain to Plaintiff. (SAC, ¶ 29(b)-(c).) Elsewhere in the SAC, Plaintiff lists the date as February 22, 2023. (SAC, ¶ 321.)

The Court finds the SAC does clearly and unambiguously state a claim for promissory fraud because Plaintiff alleges several contradictory facts about whether Defendant’s employe fraudulently induced him to pay rent and enter into the rental agreement.

“The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Plaintiff must therefore allege injury specific to the use and enjoyment of his land. (See Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.)

Here, the SAC alleges that because Defendant failed to evict Kornegay, Plaintiff was subjected to foul orders permeating from Kornegay’s part of the apartment. (SAC, ¶ 227.) The SAC also alleges that Plaintiff feared he would be susceptible to severe respiratory ailments or complications due to the odors. (SAC, ¶ 228.)

The Court finds these statements to be conclusory, speculative, and vague because the SAC does not sufficiently allege an injury due to the foul odor.

To plead an illegal entry claim, the complaint must include allege that the plaintiff was in peaceful possession of the property and the defendant entered without plaintiff’s consent using deceit, force, or threats. (Davies v. Stark (1914) 25 Cal.App. 519, 521.) The complaint must also specify damages sought such as rental value or loss of property. (Ibid.)

The SAC alleges Defendant employee Chau illegally entered Plaintiff’s apartment on three occasions even though no exceptional conditions existed to justify the entries. On June 20, 2023, Chau entered the apartment without Plaintiff’s prior knowledge or consent to show a monk the extent of the cleanup which would be necessary to fix Plaintiff’s apartment. (SAC, ¶ 290.) On June 22,[1] Chau again entered the apartment without prior permission to post the notice of eviction directly on Kornegay’s room. (SAC, ¶ 293.) On August 3, 2023, Chau entered the apartment to leave Plaintiff a note stating that Defendant had canceled Plaintiff’s rental agreement. (SAC, ¶ 298.) On one occasion, when Plaintiff complained to Chau about the entry, Chau allegedly retorted that if Plaintiff did not like it “he could move out.” (SAC, ¶ 295.)

The Court finds that the SAC is vague because it does not allege that Chau used deceit to enter the apartment, forced his way into the apartment, or threatened Plaintiff when entering the apartment. If anything, the SAC seems to allege that Chau was attempting to comply with the alleged agreement to evict Kornegay. Thus, the SAC does not sufficiently allege a cause of action for illegal entry.

Fifth Cause of Action for Breach of the Covenant of Quiet Enjoyment (Civ. Code, § 1927)

To plead a quiet enjoyment claim, the complaint must allege: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; and (3) an act or omission of the landlord, or anyone claiming under the landlord, which substantially interferes with a tenant’s right to use and enjoy the premises for purposes contemplated. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591; Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 293 [“Breach can take many forms, including actual or constructive eviction.”].). The complaint must also allege an applicable remedy: (1) the tenant remained in possession and was damaged; or (2) the tenant surrendered possession and is relieved of obligation to pay rent. (Andrews v. Mobile Aire Estates, supra, 125 Cal.App.4th at pp. 588-591.)

Here, the SAC alleges Plaintiff and defendant entered into a month-to-month rental agreement for the apartment on June 1, 2023, after which Plaintiff retained possession of the apartment. (SAC, ¶ 315.) The SAC also alleges Defendant breached the covenant of quiet enjoyment within that agreement by Chau illegally entering his apartment three times (SAC, ¶ 319.), failing to evict Kornegay and to prosecute an unlawful detainer action against Kornegay (SAC, ¶ 320.), and causing Plaintiff to be deprived of his exclusive use and possession of five out of the eight rooms in the apartment. (SAC, ¶ 324-325.)

The Court finds the SAC’s allegations contradictory because Plaintiff claims above that Chau entered the apartment on two occasions to evict Kornegay and assess the damage Defendant would need to fix in the apartment. Note that these alleged actions stem from acts Plaintiff alleges induced him to sign the June 1, 2023 rental agreement. (SAC, ¶ 173(a), 174.) Thus, the SAC does not sufficiently state a cause of action for depriving Plaintiff of the property’s use and enjoyment.

Accordingly, the Court sustains the demurrer to Plaintiff’s fifth cause of action.

Sixth Cause of Action Retaliatory Eviction (Civ. Code, § 1942.5, subd. (d).)

To plead a retaliatory eviction claim, the complaint must allege: (1) the lessor acts to, or threatens to, bring an action to evict the tenant; (2) because the tenant exercised a cognizable right, including (a) complained to an appropriate agency regarding the tenantability of a dwelling; or (b) exercised any right under Civil Procedure Code section 1940. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1493; Civ. Code, § 1942.5, subds. (a), (c); see also Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281 [noting parties are entitled to seek punitive damages for retaliatory evictions].)

The SAC alleges Defendant threatened to evict Plaintiff from the premises on five occasions in response to Plaintiff filing numerous complaints with various government entities, including the County Health Department. (SAC, ¶ 351.) The SAC does not include specific dates of the alleged complaints. The SAC alleges Chau told Plaintiff to move out after learning about the complaints. (SAC, ¶ 351(a)-(c).) This directly conflicts with Plaintiff’s factual allegations that Defendant employee Yolanda Bowman texted Plaintiff confirming she served a 60-day eviction notice on Kornegay to vacate the premises and that the notice did not pertain to Plaintiff. (SAC, ¶ 29(b)-(c).)

The Court finds the SAC is ambiguous regarding Plaintiff’s claim of retaliatory evictions because the SAC’s allegations are contradictory about when and if Defendant attempted to evict Plaintiff. Thus, the SAC fails to sufficiently allege a cause of action for retaliatory eviction.

Accordingly, the Court sustains the demurrer to Plaintiff’s sixth cause of action.

To plead a negligence claim, the complaint must allege that: (1) the defendant owed plaintiff a duty of care; (2) the defendant breached the duty; and (3) the defendant’s breach was the actual and proximate cause of (4) plaintiff’s damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “A landlord generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts of third parties.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)

The SAC alleges that as Plaintiff’s landlord, Defendant had a duty to take reasonable measures to eradicate the noxious fumes of foul stench emanating from Kornegay’s room. (SAC, ¶ 376.) Plaintiff alleges he complained to Defendant and Defendant’s employees multiple times but does not state facts alleging an injury or damages. (SAC, ¶ 377(a), (i).) As mentioned above, the SAC states Plaintiff “fears” that he will suffer severe respiratory ailment or complications. (SAC, ¶ 377(i).)

The Court finds the SAC fails to sufficiently allege a cause of action negligence. The SAC is speculative and does not state facts showing Defendant did not act to evict Kornegay from the premises. The SAC states facts to the contrary regarding Defendant posting notices of eviction and filing an unlawful retainer action against Kornegay.

Accordingly, the Court sustains the demurrer to Plaintiff’s seventh cause of action.

Eighth Cause of Action for Tenant Harassment (Los Angeles Municipal Code (LAMC) Chapter IV, Article 5.3 §§ 45.35, et seq., and LAMC Chapter XV, Article 1 § 151.33.)

To plead a tenant harassment claim, the complaint must allege that the “landlord’s knowing and willful course of conduct directed at a specific tenant or tenants . . . causes detriment and harm, and that serves no lawful purpose.” (Los Angeles, Ord. No. 187,109, section 45.33.) Such conduct includes (1) reducing or eliminating housing services required by a lease; (2) failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; (3) Abuse of the right of access into a rental unit as established and limited by California Civil Code Section 1954; (4) threatening a tenant, by word or gesture, with physical harm; (5) attempting to coerce a tenant to vacate with offers of payment; and (6) repeated acts or omissions that substantially interfere with or disturb the comfort, repose, peace or quiet of a tenants and that cause, are likely to cause, or are committed with the objective to cause a tenants “to surrender or waive any rights in relation to such tenancy.” (Los Angeles, Ord. No. 187,109, section 45.33(1)-(5), (16).)

Here, the SAC alleges the same facts as stated for other causes of actions and cites the alleged laws supporting the claim. The SAC alleges Defendant, through Chau, illegally entered Plaintiff’s apartment on three occasions—June 20, 2024, June 22, 2024, and August 3, 2024. (SAC, ¶ 429.) The SAC also alleges that beginning in August 2023, Defendant misrepresented its reasons for wanting Plaintiff to vacate the apartment including that Defendant needed to renovate the apartment. (SAC, ¶¶ 430-437.) Defendant also refused to accept Plaintiff’s rent payments after Defendant sent Plaintiff notices to vacate. (SAC, ¶¶ 431-434.) Like the facts above, these allegations lack specificity regarding how Defendant’s actions constitute tenant harassment, the allegations are contradictory and conclusory, and confusing.

The Court finds the SAC fails to sufficiently allege a cause of action for tenant harassment.

Accordingly, the Court sustains the demurrer to Plaintiff’s eighth cause of action.

Ninth Cause of Action for Illegal Rent (LAMC Chapter XV, Article 1, § 151.04, subd. (A).)

To plead a cause of action for illegal rent, the complaint must plead facts showing that the landlord demanded, accepted, or retained more than the maximum adjusted rent permitted pursuant to the Los Angeles Municipal code. (Los Angeles, Ord. No. 174,501, section 151.04(A).)

Here, the SAC alleges Plaintiff was subjected to two rental increases from April 2023 to August 2023, totaling $287.50. (SAC, ¶ 60, 61, 71, 457.) (SAC, ¶ 70.) First, the SAC alleges on April 2, 2022, Chau raised the rent from $785.00 to $875.00. (SAC, ¶ 71.) Second, the SAC alleges that on June 12, 2023, Chau raised the rent to $900.00, per the June 1, 2023 rental agreement, but only required Plaintiff to pay half the rent due to Korengay’s continued presence in the apartment. (SAC, ¶¶ 73-74.) The SAC alleges that after Plaintiff complained to the local housing department, the housing department informed Defendant the amount of Plaintiff’s monthly rent must stay the same as the previous tenant. (SAC, ¶ 48.)

The Court finds confusion regarding the timeline of Plaintiff’s interactions with Chau regarding when Chau raised the rent. Plaintiff jumps back and forth between April 2022 and April 2023. Without a clear and unambiguous timeline, the SAC does not sufficiently allege a cause of action for illegal rent.

Accordingly, the Court sustains the demurrer to Plaintiff’s ninth cause of action.

Defendant demurs to Plaintiff’s second cause of action for promissory fraud on the grounds that the SAC to state a claim. Defendant argues Plaintiff fails to allege facts showing Defendant intended to deceive Plaintiff. Plaintiff states he “was induced to and did assume the future rent payments as of April 2023” but does not state facts showing how he was induced into entering a month-to-month lease.

In opposition, Plaintiff states Defendant failed to comply with the meet and confer requirement and that Defendant stipulated to waiving his right to demur to the SAC by signing the stipulation permitting Plaintiff to file his SAC.

In reply, Defendant argues that the stipulation did not waive Defendant’s right to demur to the SAC but extended the time for Plaintiff to file his SAC and for Defendant to respond to the SAC. (Supplemental Declaration of Olesya Mikhaylova, ¶ 2, Exh. C, at p. 2.) Defendant also argues that the SAC’s allegations directly conflict with Plaintiff’s claim that Defendant did not intend to evict Kornegay. For example, the SAC states that on February 22, 2024,[2] Defendant’s employee, Yoland Bowman, texted Plaintiff confirming she served a 60-day eviction notice on Kornegay to vacate the premises and that the notice did not pertain to Plaintiff. (SAC, ¶ 29(b)-(c).)

Here, Plaintiff states the SAC includes two acts used to induce Plaintiff to assume rent payments, as of April 1, 2023, and to enter into a written rental agreement. First, Plaintiff states that Tho Chau promised Plaintiff that VUBC would promptly evict both Rofick Akbar and subtenant Kornegay. (SAC, ¶ 173(a).) Chau also promised to promptly clear out any items remaining in the front section of the apartment and to clean up the entire area. (SAC, ¶ 174.) Plaintiff signed the agreement in reliance on this promise, and Kornegay remained in the apartment thereafter. Defendant’s alleged subsequent acts, posting the notice of eviction and filing the unlawful detainer action—directly conflict with the SAC’s claim that Defendant intended to deceive Plaintiff.

Thus, the Court finds the SAC does not sufficiently state a claim for promissory fraud because Plaintiff alleges several contradictory facts.

[1] Plaintiff did not include a year here.

[2] As mentioned earlier, the Plaintiff states the date was February 22, 2023 at paragraph 321 in the SAC.

Department 58