Judge Carolyn M. Caietti, Case 37-2019-00054054-CU-BC-CTL 2023-10-13 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2019-00054054-CU-BC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00054054-CU-BC-CTL AWAD VS. MELENDEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 05/10/2023

Defendant Maria Melendez's Demurrer to the Second Amended Complaint is OVERRULED. Defendant Ostolia Dominguez' Demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants Maria Melendez and Ostolia Dominguez' Motion to Strike the Second Amended Complaint is MOOT IN PART AND DENIED IN PART.

Demurrer Defendants' reply request for judicial notice is granted and notice will be taken to the extent permitted.

A demurrer 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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The SAC Sufficiently Alleges Facts to Constitute the Causes of Action against Defendant Maria Melendez Plaintiffs' opposition explains in this case that, even if ownership changed when Judge Link's judgment awarded title back to Defendant Maria Melendez, Defendants were still required to comply with California's eviction procedures and proper legal process. All of the causes of action are essentially premised on their failure to file an unlawful detainer action. One in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1042; see also, id., at p. 1038 ['For occupants in peaceful possession of real property, these statutes offer protection from self-help, without regard to the parties' legal claims to title or possession.'].) Calendar No.: Event ID: TENTATIVE RULINGS

2971632 51 CASE NUMBER: CASE TITLE: AWAD VS. MELENDEZ [IMAGED] 37-2019-00054054-CU-BC-CTL In Spinks, the plaintiff resided in an apartment under a lease entered into by her employer and the defendants/landlord. The employer terminated the plaintiff's employment and directed the defendants to change the locks on the plaintiff's apartment unit. They complied, causing the plaintiff to leave her residence. The Court of Appeal reversed the trial court's grant of summary judgment in favor of the defendant, finding triable issues on the question of whether the defendants improperly disturbed the plaintiff's peaceful possession through resort to impermissible self-help. (Spinks, supra, at p. 1015.) Several of the causes of action at issue in this case are addressed in Spinks.

The SAC sufficiently states facts to constitute a violation of Civil Code section 1940.2, which prohibits landlords from taking certain actions for the purpose of influencing a tenant to vacate a dwelling. (E.g., SAC, at ¶¶ 74-75.) Whether or not Defendants were Plaintiffs' 'landlords' is not dispositive. As stated in Spinks, 'the evidence supports the conclusion that plaintiff was in peaceful possession of the premises, being an 'occupant' of the premises as defined in and protected by the relevant statutes; .... If plaintiff was in peaceful possession, defendants had a legal duty not to interfere with her peaceful possession through the use of impermissible self-help.' (Spinks, at p. 1036.) The SAC sufficiently states facts to constitute breach of the implied covenant of quiet enjoyment. The covenant protects all 'hirers' of property and a breach can take many forms, including actual or constructive eviction. (Spinks, at p. 1034-35; e.g., SAC, at ¶¶ 79, 87.) The SAC sufficiently states facts to constitute a violation of Civil Code section 1714. (Spinks, supra, at p. 1047 [the law imposes a duty on landlords not to disturb an occupant's possession except by legal process]; e.g., SAC, at ¶¶ 96, 99.) The SAC sufficiently states facts to constitute a violation of Civil Code section 1159. (Spinks, supra, at p. 1047 ['the law imposes a duty on landlords not to disturb an occupant's possession except by legal process' citing C.C.P., § 1159].) A 'non-violent lock change can support a statutory claim for forcible entry.' (Spinks, at p. 1039; e.g., SAC, ¶¶ 107-108.) The SAC sufficiently states facts to constitute a violation of Civil Code section 789.3, which forbids landlords of residential dwellings from engaging in specified conduct, including changing the locks with intent to oust the resident. (Spinks, supra, at p. 1018, fn. 1; e.g., SAC, at ¶ 113.) The SAC sufficiently states facts to constitute trespass. (Spinks, supra, at p. 1042 ['the plaintiff need not have legal rights in the land. (Citation.) Even 'one in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession even in the absence of injury to his person or goods....']; e.g., SAC, at ¶¶ 118.) The SAC sufficiently states facts to constitute intentional infliction of emotional distress. (Spinks, supra, at p. 1046 (rejecting the defendants' contention they established a lack of outrageousness as a matter of law as changing the locks on someone's dwelling without consent to force that person to leave is prohibited by statute); e.g., SAC, at ¶ 124.) The SAC sufficiently states facts to constitute nuisance. (See, Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63 [elements]; e.g., SAC, at ¶ 130.) In addition, the SAC and its causes of action are not uncertain and any ambiguity can be clarified in discovery. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) For these reasons, the demurrer as to Defendant Maria Melendez is OVERRULED.

The SAC Fails to Allege Facts Against Defendant Ostolia Dominguez Here, the SAC fails to allege facts to constitute any of the causes of action against Defendant Ostolia Dominguez. (C.C.P., § 430.10(e).) At most, the SAC alleges Plaintiffs paid rent for September 2019, and Calendar No.: Event ID: TENTATIVE RULINGS

2971632 51 CASE NUMBER: CASE TITLE: AWAD VS. MELENDEZ [IMAGED] 37-2019-00054054-CU-BC-CTL it was transferred from Melva Melendez to Maria Melendez 'through her daughter authorized by Power of Attorney, Defendant Dominguez.' In addition, Plaintiff witnessed a conversation between Defendant P. Melendez and Defendant Dominguez in which Defendant Dominguez confirmed receipt of the September 2019 rent. (SAC, at ¶ 40.) Further, Ostolia Dominguez, 'acting as power of attorney for Defendant MA Melendez, instructed an authorized Defendant P. Melendez to change the locks to the property, and also instructed him not to let Plaintiffs back into the Diza Property to collect their belongings.' (Id., at ¶ 42.) There are no allegations Defendant Dominguez owned or controlled the property, acted as an individual and separately from any power of attorney on behalf of her mother or made the decision to change the locks. Plaintiffs also do no provide legal authority provided how 'transferring' a rent payment, confirming receipt of a rent payment, or instructing Phil Melendez to change the locks 'acting as power of attorney,' forms a sufficient basis of individual liability against Ostolia Dominguez, particularly since the SAC alleges she acted on behalf of her mother. Plaintiff requests leave to amend, but fails to identify how these defects can be cured.

Thus, Ostolia Dominguez' demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Motion to Strike A motion to strike a complaint in whole or in part is governed by C.C.P. sections 435 through 437. C.C.P.

section 436, provides that '[t]he court may, upon a motion ... (a) [s]trike out any irrelevant, false or improper matter...(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' The grounds for a motion to strike must appear on the face of the challenged pleading or matter subject to judicial notice. (C.C.P., § 437(a).) In ruling on a motion to strike, courts must assume the truth of the complaint's allegations and liberally construe the allegations with a view to substantial justice. (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 91 & C.C.P., § 452.) A pleading that fails to adequately allege facts supporting a claim for punitive damages is subject to a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) To recover punitive damages, a plaintiff must plead specific facts demonstrating malice, oppression or fraud. (Civ. Code, § 3294(a).) Malice, oppression and fraud are defined at Civil Code section 3294(c)(1)-(3). As relevant to this motion, malice 'means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.' (Id., at subd. (c)(1).) Here, Defendants seek to strike the allegations regarding punitive damages under the first, second, sixth and seventh causes of action and the prayer. (SAC, at ¶¶ 77, 93, 122, 127 and Prayer 4.) As discussed above, there are no factual allegations giving rise to liability against Defendant Ostolia Dominguez. As the demurrer is sustained without leave to amend as to Defendant Dominguez, her motion to strike is MOOT.

With regard to Defendant Maria Melendez, the SAC, read as a whole, contains sufficient allegations of fact showing malice, which, if proven, would sustain an award of punitive damages. 'As longstanding authority makes clear, punitive damages may be awarded in an action by a residential tenant based on the landlord's interference with peaceful possession.' (See, Spinks, supra, at p. 1055.) Punitive damages are recoverable for retaliatory eviction, infliction of emotional distress and for forcible entry and detainer. (Ibid.) Specifically, the SAC alleges Defendant did not provide proper notice prior to entering the property, changed the locks without notice or permission and did not allow Plaintiffs to re-enter and retrieve their belongings. (See, Spinks, supra, at p. 1055-56 (finding evidence of the defendants' acts to dispossess the plaintiff were carried out despite concerns about the legality of the acts and their effect on the plaintiff's welfare created a triable issue of fact).) Calendar No.: Event ID: TENTATIVE RULINGS

2971632 51 CASE NUMBER: CASE TITLE: AWAD VS. MELENDEZ [IMAGED] 37-2019-00054054-CU-BC-CTL Thus, the motion to strike is MOOT IN PART as to Defendant Ostolia Dominguez and DENIED IN PART as to Defendant Maria Melendez.

Concluding Orders Defendant Maria Melendez is ordered to file and serve an answer to the Second Amended Complaint by October 27, 2023.

This ruling is dispositive as to the Second Amended Complaint against Defendant Ostolia Dominguez.

She is ordered to prepare and submit a dismissal in accordance with any applicable laws and rules.

If the tentative ruling is confirmed without modification, it will be the Court's final ruling. Defendants are ordered to serve written notice of the Court's final ruling by October 17, 2023.

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