Judge Daniel M. Crowley, Case Number: 22STCV04815, Date: 2024-01-10 Tentative Ruling

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Defendant Robert Assil’s demurrer to Plaintiff Timothy Hennessy’s second amended complaint is sustained without leave to amend as to the 6th cause of action.

Defendant Oakwood Holdings LLC’s demurrer to Plaintiff Timothy Hennessy’s second amended complaint is sustained without leave to amend as to the 6th cause of action.

Defendant Robert Assil (“Assil”) (“Defendant”) demurs to Plaintiff Timothy Hennessy’s (“Hennessy”) (“Plaintiff”) second amended complaint (“SAC”) on the grounds that the 6th cause of action in the SAC fails to state facts sufficient to constitute a cause of action against Assil and the SAC is uncertain. (Notice of Demurrer Assil, pg. 2; C.C.P. §§430.10(e), (f).)[1]

Defendant Oakwood Holdings LLC (“Oakwood”) (“Defendant”) demurs to Plaintiff’s SAC on the grounds that the 6th cause of action in the SAC fails to state facts sufficient to constitute a cause of action against Oakwood and the SAC is uncertain. (Notice of Demurrer Oakwood, pg. 2; C.C.P. §§430.10(e), (f).)[2]

Plaintiff filed his initial complaint on February 8, 2022, against Assil and Oakwood (collectively, “Defendants”). Plaintiff filed his first amended complaint (“FAC”) on January 18, 2023, alleging nine causes of action against Defendants: (1) wrongful eviction; (2) breach of the covenant of quiet enjoyment; (3) failure to offer re-rental (LAMC §151.27); (4) unlawfully offering withdrawn rental units for rent and/or lease (LAMC §151.25); (5) negligence; (6) intentional infliction of emotional distress; (7) violation of LAMC, Art. 5.3; (8) violation of Los Angeles County Code §8.52.130; and (9) fraudulent misrepresentation.

On July 28, 2023, this Court overruled both Defendants’ demurrers to the FAC as to the 1st, 2nd, 3rd, 4th, 5th, 7th, and 8th causes of action and sustained the demurrers with 20 days leave to amend as to the 6th and 9th causes of action. (7/28/23 Minute Order.)

On October 6, 2023, Assil filed his demurrer. On October 9, 2023, Oakwood filed its demurrer. On February 27, 2024, Plaintiff filed his consolidated oppositions. As of the date of this hearing no replies have been filed.

On or about September 5, 2023, Assil’s counsel sent a meet and confer letter to Plaintiff’s counsel regarding deficiencies in the Sixth and Ninth Causes of Action. (Decl. of Jafari ¶8, Exh. C.) Assil’s counsel declares the parties conducted the required telephonic meet and confer on September 5, 2023. (Decl. of Jafari ¶8.) Assil’s counsel declares that because the parties were unable to resolve the issues raised, Plaintiff’s counsel sent a memorializing email confirming that he had granted Assil’s counsel an extension until September 25, 2023, to file a demurrer. (Decl. of Jafari ¶9, Exh. D.) Assil’s counsel declares that on September 22, 2023, he contacted Plaintiff’s counsel by email requesting a further extension to file a demurrer until October 6, 2023, which Plaintiff’s counsel granted. (Decl. of Jafari ¶10, Exh. E.) Assil’s counsel’s declaration is sufficient under C.C.P. §430.41. Therefore, the Court will consider Assil’s demurrer.

Assil demurs on the basis that Plaintiff’s 6th cause of action fails to state facts sufficient to constitute a cause of action against Assil and is uncertain. (Demurrer Assil, pgs. 5-7; C.C.P. §§430.10(e), (f).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051; CACI 1600.)

“[B]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damages the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921, citing Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297).

Plaintiff alleges at all relevant times, Defendants were aware that Plaintiff was disabled and that the loss of his primary residence would cause him mental torment, stress, grief, and other serious injuries to his mind and well-being. (SAC ¶69.) Plaintiff alleges that despite such knowledge, Defendants devised and carried out a fraudulent scheme to remove Plaintiff from his rent-controlled home, all so that Defendants could re-rent his Unit at a higher rate and maximize profits. (SAC ¶69.)

Plaintiff alleges Defendants’ acts and conduct were extreme and outrageous in that Defendant were aware and knew that the same were wrongful and improper and would and did cause Plaintiff mental torment, grief, and other serious injuries to his mind and well-being. (SAC ¶70.) Plaintiff alleges Defendants’ acts and conduct were intentional (not accidental), deliberate, willful, or done in reckless disregard of the likelihood they would cause Plaintiff serious emotional distress. (SAC ¶71.) Plaintiff alleges in doing the acts alleged above, Defendants inflicted severe emotional distress upon Plaintiff. (SAC ¶72.)

Plaintiff alleges as a direct and proximate result of the acts and conduct of Defendants, Plaintiff suffered and continues to suffer severe emotional distress, mental suffering, and other personal injuries, all to Plaintiff’s damage in a sum exceeding the jurisdictional minimum of the Court. (SAC ¶73.) Plaintiff alleges as a further direct and proximate result of the acts and conduct of Defendants, Plaintiff has been required to employ physicians and other healthcare professionals to diagnose and treat Plaintiff’s illness, severe emotional distress, and personal injuries. Plaintiff has incurred medical and healthcare expenses due to the conduct of Defendants and the injuries alleged herein. (SAC ¶74.)

Plaintiff fails to sufficiently allege Defendants’ conduct was intentional such that it was directed to cause Plaintiff severe emotional distress. Plaintiff alleges Defendants’ outrageous conduct was to devise and carrying out a scheme to evict Plaintiff, a disabled individual, from his rent-controlled home. (SAC ¶69.) While Plaintiff alleges Defendants were in a position of power and abused that power through their conduct, Plaintiff fails to allege Defendants’ actions were made with intent to cause Plaintiff distress and the actual and proximate causes of Plaintiff’s alleged emotional distress beyond mere conclusory allegations.

Accordingly, Assil’s demurrer to Plaintiff’s 6th cause of action is sustained without leave to amend.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she 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.)

Assil argues the 6th cause of action does not explain how Defendants allegedly defrauded Plaintiff or identify any fraudulent actions beyond those inherent in any eviction process. (Demurrer Assil, pg. 6.)

Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint). (See Fenton v. Groveland Community Services District (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328 n.30].) Here, Assil fails to reference pages and line numbers of the SAC that render the pleading so confusing that he cannot tell what they are supposed to respond to.

Accordingly, Assil’s demurrer to Plaintiff’s SAC on the basis of uncertainty is overruled.

Assil’s demurrer to Plaintiff’s SAC is sustained without leave to amend as to the 6th cause of action.

Oakwood demurs on the basis that Plaintiff’s 6th cause of action fails to state facts sufficient to constitute a cause of action against Oakwood and is uncertain. (Demurrer Oakwood, pgs. 4-7; C.C.P. §§430.10(e), (f).)

Oakwood’s demurrer is substantively identical to Assil’s demurrer. Therefore, the Court’s ruling on Oakwood’s demurrer is the same as its demurrer to Assil’s.

Oakwood’s demurrer to Plaintiff’s SAC is sustained without leave to amend as to the 6th cause of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Assil does not demur to the 9th cause of action.

[2] The Court notes Oakwood does not demur to the 9th cause of action.