Judge: Cynthia A Freeland, Case: 37-2022-00050067-CU-BC-NC, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - July 20, 2023

07/21/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2022-00050067-CU-BC-NC DAHUD VS. SALAZAR [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/20/2023

Defendants Aimco Sunset Escondido, LLC ('Aimco') and OP Property Management, LP ('OP' and, together with Aimco, 'Defendants')'s demurrer to Plaintiff Nora Dahud ('Plaintiff')'s Complaint is sustained.

The court declines to overrule the demurrer on procedural grounds. First, Plaintiff's argument that Defendants failed to meet and confer before filing and serving their demurrer is not well taken. Ms.

Hollenbeck represents in her declaration that on February 21, 2023, she attempted to meet and confer with Plaintiff telephonically; however, Plaintiff refused to speak with her and hung up the phone. See Hollenbeck, Decl., ¶ 2. On March 19, 2023, Ms. Hollenbeck again attempted to meet and confer with Plaintiff by leaving a voicemail with Plaintiff. Ibid., ¶ 3. Plaintiff disagrees with Ms. Hollenbeck's characterization of the meet and confer process. See Dahud Decl., ¶ 4. However, even if Plaintiff's recitation of events was accurate, '[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.' Cal. Code Civ. P. § 430.41(a)(4).

Second, Plaintiff's contention that the demurrer was untimely is unavailing. 'A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.' Cal. Code Civ. P. § 430.40(a). 'Demurrers must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter. For good cause shown, the court may order the hearing held on an earlier or later day on notice prescribed by the court.' Cal. R. Ct. 3.1320(d). In this case, Defendants filed and served the demurrer and supporting documents via U.S. mail on March 20, 2023. See ROA No.

14, p. 10. California Rules of Court ('CRC'), Rule 3.1320(d) requires that the demurrer be set forth hearing not more than 35 days after March 20, 2023, or by April 24, 2023, or on the first date available to the court thereafter. In this instance, the court can confirm that, given the court's significant backlog and already full calendars, July 21, 2023 was the first date available to hear the present demurrer.

Third, Plaintiff is correct that '[a] demurrer must state, on the first page immediately below the number of the case, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer.' Cal. R. Ct. 3.1320(e). In this case, the demurrer's caption does not comply with CRC, Rule 3.1320(e) insofar as it simply reads: 'Notice of Demurrer and Demurrer by Defendant to Plaintiff's Complaint; Memorandum of Points and Authorities.' Defendants should have identified themselves as well as Plaintiff in the caption. Nevertheless, the court will overlook this defect and proceed to the merits because Plaintiff has failed to articulate any resulting prejudice. See Truong v. Glasser (2009) 181 Cal. App. 4th 102, 118. Nor does the court find any prejudice given that the first paragraph of Defendants' Notice of Demurrer clearly identifies which defendants are demurring to Calendar No.: Event ID:  TENTATIVE RULINGS

2952363 CASE NUMBER: CASE TITLE:  DAHUD VS. SALAZAR [IMAGED]  37-2022-00050067-CU-BC-NC Plaintiff's Complaint. See ROA No. 14, p. 1, l. 27 – p. 2, ll. 1-2.

Fourth, Plaintiff's assertion that the court should not entertain the demurrer because default should have been entered against OP is not persuasive. The Register of Actions indicates that Plaintiff attempted to take OP's default on March 9, 2023; however, the clerk did not enter default as requested owing to the filing of OP's demurrer. To the extent that Plaintiff disagrees, her opposition to the present demurrer is not the appropriate procedural vehicle for challenging the denial of her request for entry of default.

Finally, the court respectfully disagrees with Plaintiff that she was not properly served with the demurrer.

See Dahud Decl., ¶ 6. According to the proof of service, on March 20, 2023, Defendants Served Plaintiff with the demurrer and supporting documents via U.S. mail to 774 Tannehill Drive, Manteca, CA 95337.

This is the same address Plaintiff has identified as her mailing address on the pleadings she has filed in this case. It is also the address the court has on file for her. That being said, a valid proof of service 'creates a rebuttable presumption that the service was proper.' Floveyor Internat., Ltd. v. Sup. Ct. (1997) 59 Cal. App. 4th 789, 795. In this instance, the court finds that the proof of service is, in fact, Code-compliant. Plaintiff thus bears the burden of rebutting the prima facie validity of service. Her conclusory statement that she never received the moving papers, without more, is insufficient to meet her burden.

The court will now address the demurrer's merits.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

The demurrer to the first cause of action for violation of California Business & Professions Code ('BPC') §§ 17200 et seq. (the 'UCL') is sustained. BPC § 17200 defines unfair competition as 'any unlawful, unfair or fraudulent business act or practice . . . .' Cal. Bus. & Prof. Code § 17200. The law is 'sweeping, embracing anything that can properly be called a business practice and at the same time is forbidden by law.' Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Company (1999) 20 Cal. 4th 163, 180. As to the unlawful prong, the unfair competition laws ''borrow' violations of other laws and treat[] these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.' Farmers Ins. Exchange v. Sup. Ct. (1992) 2 Cal. 4th 377, 383. Virtually any federal, state, or local law can serve as a predicate for an action under BPC § 17200. See Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal. App. 4th 544, 553. As to the unfair prong, '[a]n 'unfair' business practice occurs when that practice 'offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.'' Candelore v. Tinder, Inc. (2018) 19 Cal. App. 5th 1138, 1157-1158 (quoting Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal. App. 4th 700, 718-719). See also Cel-Tech Communications, Inc., 20 Cal. 4th at 187 ('When a plaintiff who claims to have suffered injury from a direct competitor's 'unfair' act or practice invokes section 17200, the word 'unfair' in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.').

The court finds that the Complaint fails to state facts sufficient to constitute a cause of action for violation of the UCL. The Complaint alleges that on September 1, 2021, Plaintiff and Defendants Adriana Salazar Calendar No.: Event ID:  TENTATIVE RULINGS

2952363 CASE NUMBER: CASE TITLE:  DAHUD VS. SALAZAR [IMAGED]  37-2022-00050067-CU-BC-NC and Shayla Mackson, on the one hand, and Aimco, on the other hand, entered into an Apartment Lease (the 'Lease') whereby Plaintiff, Ms. Salazar, and Ms. Mackson agreed to lease from Aimco the real property located at 910 Del Dios Road #15, Escondido, CA 92029 (the 'Property'). See Complaint, ¶¶ 1-2, 9, Ex. A. Aimco and OP are the Property's owner and property management company, respectively.

Ibid., ¶¶ 3-4. On January 3, 2022, Plaintiff contracted COVID-19 and, as a result, there was a breakdown in her relationship with Ms. Salazar and Ms. Mackson. More specifically, Ms. Salazar and Ms. Mackson insisted that Plaintiff quarantine outside of the Property at various hotels. Ibid., ¶ 10. After Plaintiff recovered, she continued to face hostility from Ms. Salazar and Ms. Mackson. On January 25, 2022, Plaintiff and her brothers came to the Property to retrieve Plaintiff's personal belongings. However, Ms.

Salazar and Ms. Mackson refused Plaintiff entry until Plaintiff executed a written agreement that she would continue to pay rent until Ms. Salazar and Ms. Mackson were able to find a new roommate. Ibid., ¶¶ 11-12. Plaintiff thereafter found several individuals to take her place in the Property; however, Ms.

Salazar and Ms. Mackson rejected all of them. Ibid., ¶ 15. In June 2022, Ms. Salazar and Ms. Mackson accepted a new roommate but did not notify Plaintiff of same. Ibid., ¶ 16. Between late January 2022 and February 2022, Plaintiff spoke with the property manager, Ms. Karla Easter, regarding the legitimacy of Ms. Salazar's and Ms. Mackson's behavior. Ms. Easter informed Plaintiff that this was not the appropriate way to address the dispute; however, Ms. Easter did not offer to interfere or otherwise help resolve the situation. Ibid., ¶ 17. Plaintiff ultimately paid Ms. Salazar and Ms. Mackson rent for January through March 2022. Ibid., ¶ 18. The Complaint alleges that Defendants violated their fiduciary and professional duties and engaged in unlawful and unfair conduct by refusing to release Plaintiff from the Lease in June 2022 when a new tenant moved into the Property. Ibid., ¶ 23.

The foregoing is insufficient to survive the pleading stage. The Complaint alleges that Defendants engaged in unfair and unlawful conduct under the UCL. However, a review of the operative pleading reveals that Plaintiff has failed to state a cognizable claim under either prong. As to the unfair prong, the Complaint is devoid of facts demonstrating that Defendants' conduct offends an established public policy or is otherwise immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.

The Complaint alleges, in essence, that Defendants did not: (1) assist Plaintiff in her dispute with Ms.

Salazar and Ms. Mackson, and/or (2) release Plaintiff from her obligations under the Lease once a new roommate began residing at the Property in June 2022. The Complaint contains no allegations substantiating Plaintiff's theory that such conduct is immoral, unethical, oppressive, unscrupulous, or substantially injurious, or is otherwise against public policy. Moreover, the court must agree with Defendants that the Complaint fails to allege facts establishing a causal connection between Plaintiff's alleged damages and any action/inaction on Defendants' part.

Seeming to acknowledge the foregoing, Plaintiff in her opposition focuses on the UCL's unlawful prong, arguing that Defendants failed to mitigate their damages under California Civil Code ('CC') § 1951.2. CC § 1951.2 governs a lessor's remedies when either: (1) a lessee breaches the lease and abandons the property before the end of the lease term, or (2) a lessor terminates a lessee's right to possession because of a breach of a lease. CC § 1951.2 does contain provisions for mitigating the lessor's damages. However, the Complaint fails to allege that: (1) Plaintiff breached the Lease and/or abandoned the Property, or (2) Defendants terminated Plaintiff's right to possession because of a breach of the Lease. Moreover, and importantly, the ¶ 17 of the Lease, entitled 'Multiple Residents,' provides in relevant part that: If there is more than one Resident, each Resident is jointly and severally liable for all obligations under this Lease. The violation of this Lease by any Resident Party is a violation by all Residents . . . An Additional Live-In Resident who has permanently moved out according to an affidavit signed by a Resident is, at Landlord's option, no longer entitled to occupancy of or keys to the Apartment Home. The termination of such person's right of occupancy of the Apartment Home shall not release such person from any obligations under this Lease unless specifically agreed in writing by Landlord . . . .

See Lease, ¶ 17.

In this case, the Complaint fails to identify any Lease provision requiring that Defendants release her Calendar No.: Event ID:  TENTATIVE RULINGS

2952363 CASE NUMBER: CASE TITLE:  DAHUD VS. SALAZAR [IMAGED]  37-2022-00050067-CU-BC-NC from her contractual obligations after she vacated the Property. Nor would Defendants be required to mitigate their damages where, as here, Ms. Salazar and Ms. Mackson continued residing at the Property and remained jointly and severally liable for all obligations under the Lease notwithstanding Plaintiff's early departure.

Accordingly, the court sustains the demurrer to the first cause of action without leave to amend as Plaintiff has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

The demurrer to the second cause of action for declaratory relief is sustained. California Code of Civil Procedure ('CCP') § 1060 states that: Any person interested 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 . . . 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. 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. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.

Cal. Code Civ. P. § 1060. Therefore, '[t]o qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.' Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872, 909 (quoting Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal. App. 4th 1559, 1582). An actual controversy under CCP § 1060 is 'one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.' Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal. 3d 110, 117.

The court finds that the Complaint fails to state facts sufficient to constitute a cause of action for declaratory relief. As it pertains to Defendants, Plaintiff seeks a declaration that she be released from her obligations under the Lease as of the date she moved out of the Property. See Complaint, ¶¶ 28-29.

However, the court again must agree with Defendants that the Complaint has failed to identify an actual controversy regarding the parties' respective rights under the Lease. As set forth above, Plaintiff, Ms.

Salazar, and Ms. Mackson remained jointly and severally liable for all obligations under the Lease notwithstanding the fact that Plaintiff moved out early. The Complaint fails to allege, and Plaintiff provides no evidence that, Defendants have agreed in writing to release Plaintiff from her contractual obligations. Moreover, there is no allegation that Defendants have attempted to collect any damages from Plaintiff.

Accordingly, the court sustains the demurrer to the second cause of action without leave to amend as Plaintiff has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry, 2 Cal. 4th at 967.

The demurrer to the third cause of action for breach of oral contract is sustained. 'The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.' Stockton Mortgage, Inc. v. Tope (2014) 233 Cal. App. 4th 437, 453.

Initially, the court must respectfully disagree with Plaintiff that Defendants do not have standing to demur to the third cause of action. The third cause of action's caption reads: 'Breach of Oral Contract (As To All Defendants Salazar and Mackson and DOES 1-10).' The caption can fairly be read to include 'all Calendar No.: Event ID:  TENTATIVE RULINGS

2952363 CASE NUMBER: CASE TITLE:  DAHUD VS. SALAZAR [IMAGED]  37-2022-00050067-CU-BC-NC defendants' – including Defendants. That being said, the court agrees with Defendants that the Complaint fails to state facts sufficient to constitute a breach of oral contract claim against Defendants.

More specifically, the Complaint alleges that on January 3, 2022, Plaintiff, Ms. Salazar, and Ms.

Mackson entered into an oral contract whereby Ms. Salazar and Ms. Mackson agreed to pay for a portion of Plaintiff's hotel fees while she was quarantined. See Complaint, ¶ 32. Ms. Salazar and Ms.

Mackson breached the agreement by failing and refusing to pay their portion of those fees. Ibid., ¶ 33.

Based on the foregoing, it is clear that the third cause of action is predicated upon a contract by and between Plaintiff, Ms. Salazar, and Ms. Mackson. The Complaint fails to allege the existence of a contract – other than the Lease – between Plaintiff and Defendants.

Accordingly, the court sustains the demurrer to the third cause of action without leave to amend as Plaintiff has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry, 2 Cal. 4th at 967.

In light of the foregoing, the court sustains the demurrer without leave to amend. Defendants may submit a proposed judgment consistent with this ruling.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, July 21, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of July 21, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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