Judge: Christopher K. Lui, Case: 24STCV18894, Date: 2025-01-15 Tentative Ruling

Case Number: 24STCV18894    Hearing Date: January 15, 2025    Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:24 PM on January 14, 2025. 

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1).  The Court does not desire oral argument on the motion addressed herein. 

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on January 14, 2025.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, oral argument will not be permitted.

            Plaintiffs allege that Defendants have wrongfully converted rent checks and deposits from Plaintiffs.

Defendant Zeyad Elalami demurs to the First Amended Complaint.

TENTATIVE RULING           

Defendant Zeyad Elalami’s demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the third through sixth causes of action with leave to amend.

            Plaintiff is given 30 days’ leave to amend.

ANALYSIS

Demurrer

Meet and Confer

            The Declaration of Zeyad Elalami reflects that Defendant in pro per satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Discussion

Defendant Zeyad Elalami demurs to the First Amended Complaint as follows. The Court will only address the causes of action to which Defendant demurred in the notice of demurrer, and will not consider any causes of action discussed by Defendant for the first time in the Reply.

1.         Third Cause of Action (Negligence).

            Defendant argues that Plaintiffs do not allege facts giving rise to a duty owed to Plaintiffs.

[E]conomic damages, standing alone, can be recovered under some circumstances in an action for negligence. "[A]n injury to the plaintiff's economic interests should not go uncompensated merely because it was unaccompanied by any injury to his person or property." (Citations omitted.) Further, the reasoning of J'Aire is wholly incompatible with a limitation of the cause of action to those instances in which the plaintiff and defendant are not in privity, the secondary basis for the trial court's ruling.

Nevertheless, J'Aire does require that the parties have a "special relationship" for such a cause of action to arise. (J'Aire, supra, 24 Cal. 3d at p. 804.) That special relationship must give rise to a duty on the part of the defendant to use due care to avoid economic injury to the plaintiff. (Id. at p. 803.) In the context of a motion for judgment on the pleadings, this means the complaint must allege facts constituting such special relationship. . . .

(Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.)

            The First Amended Complaint does not allege any facts giving rise to a special have a duty to avoid economic injury to Plaintiffs.

            The demurrer to the third cause of action is SUSTAINED with leave to amend.

2.         Fourth Cause of Action (Financial Elder Abuse).

            Defendant argues that there are no facts pled against him which constitute financial elder abuse.

Financial abuse of an elder adult “occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a).)

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) was enacted to provide for the “private, civil enforcement of laws against elder abuse and neglect” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82 Cal. Rptr. 2d 610, 971 P.2d 986]). The statutory provisions are not limited to mentally incompetent or physically impaired elders, or persons of limited financial means. (Welf. & Inst. Code, §§ 15600, 15610.27, 15610.30.) Under the statute, it is not necessary that the taker maintain an intent to defraud if it can be shown that the person took the property for a wrongful use and “knew or should have known that [his or her] conduct is likely to be harmful to the elder … .” (Id., § 15610.30, subd. (b).)

(Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315.)

            The First Amended Complaint does not factually allege the element of financial elder abuse as against demurring Defendant Elalami.           

            The demurrer to the fourth cause of action is SUSTAINED with leave to amend.

3.         Fifth Cause of Action (Unfair and Unlawful Business Practices).

            Defendant argues that there are no acts pled against him which constitute an unfair business practice, as he is not a landlord subject to Civil Code § 1950.5.

Because Business and Professions Code section 17200 is in the disjunctive, it prohibits practices that are “unfair,” “unlawful” or “fraudulent.” (Citations omitted.) Thus, it is unnecessary for a business practice to be only unlawful in order for the conduct to be subject to Business and Professions Code section 17200. (Citations omitted  [*257].) The “unfair” standard is intentionally broad to allow courts to have maximum discretion to prohibit schemes to defraud. (Citations omitted.) The unfairness test has been described as follows: “Determination of whether a business practice or act is ‘unfair’ within the meaning of the [Unfair Competition Act] entails examination of the impact of the practice or act on its victim, ‘ “… balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim … .” [Citation.]’ (Citation omitted.) In general the ‘unfairness’ prong ‘has been used to enjoin deceptive or sharp practices. …’ (Citations omitted.) An “unfair” business practice is actionable under the unfair competition law even if it is not “deceptive” or “unlawful.” (Citations omitted.) The term “fraud” is not predicated upon proof of the common law tort of deceit or deception but simply means whether the public is likely to be deceived. (Citations omitted.)  In terms of unfair competition, any person or entity who has engaged in, engages in, or threatens to engage in it may be enjoined from such misconduct. (Bus. & Prof. Code, §§ 17201, 17203; . . ..) Whether particular conduct is “unfair,” “unlawful” or “fraudulent” within the meaning of Business and Professions Code section 17200 is generally a question of fact which depends on the circumstances of each case. (Paduano v. American Honda Motor Co., Inc. (2009) 169 Cal.App.4th 1453, 1469 [88 Cal. Rptr. 3d 90] [“ ‘Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires “consideration and weighing of evidence from both sides” …’ ”]; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1472 [49 Cal. Rptr. 3d 227] [“the determination is one question of fact, requiring consideration and weighing of evidence from both sides …”].)

(Countrywide Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 256-57.)

“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.”  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

            Here, Plaintiffs do not allege with specificity what acts demurring Defendant Elalami engaged in relative to Plaintiffs by which they suffered economic harm caused by Defendant Elalami’s unlawful, unfair or fraudulent business practices. “In order to satisfy the Proposition 64 standing requirements, a party must establish an economic injury and in addition ‘show that that economic injury was the result of, i.e., caused by, the unfair business practice … that is the gravamen of the claim.’” (Law Offices of Mathew Higbee v. Expungement Assistance Servs. (2013) 214 Cal. App. 4th 544, 562.)

            The demurrer to the fifth cause of action is SUSTAINED with leave to amend.

4.         Sixth Cause of Action (Violation of Los Angeles County Rent Stabilization and Tenant Protections Ordinance).

            Defendant argues that he did not deal with Plaintiffs as landlord.

            The 1AC alleges at ¶ 74 as follows:

74. Defendants through their actions and inactions violated Los Angeles County Code Section 8.52.010 et seq. by: 

A. Unlawful and bad-faith retention of Plaintiff Pidlaoan’s and Plaintiff Bice’s security deposits;

B. Attempting to influence Plaintiffs to waive or forgo rights related to their tenancies through fraud, misrepresentation, and coercion; and

C. Violating Welfare and Institutions Code section 15610.30.

            Defendant Elalami is not alleged to have been Plaintiffs’ landlord. To the extent that he negotiated on behalf of the landlords, this would merely render him their agent, subject to the agent’s immunity rule. “ ‘[U]nder the agent's immunity rule, an agent is not liable for conspiring with the principal when the agent is acting in an official capacity on behalf of the principal.’ [Citations.]” (Citation omitted.)”  (Panoutsopoulos v. Chambliss (2007) 157 Cal.App.4th 297, 304.)

            The demurrer to the sixth cause of action is SUSTAINED with leave to amend.

            Plaintiffs are given 30 days’ leave to amend.