Judge Daniel M. Crowley, Case Number: 24STCV06708, Date: 2024-08-07 Tentative Ruling

Defendant Leroy Holt Sr.’s unopposed demurrer to Plaintiff Larry Norwood’s 1st cause of action in his Complaint is sustained with 20 days leave to amend.

Defendant Leroy Holt Sr. (“Holt”) (“Defendant”) demurs to the the 1st cause of action in Plaintiff Larry Norwood’s (“Norwood”) (“Plaintiff”) complaint (“Complaint”). (Notice of Demurrer, pgs. 1-2.)

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.)

Defendant’s counsel submitted a meet and confer declaration stating that since June 7, 2024, he made numerous phone calls and left a voicemail to Plaintiff’s counsel to meet and confer and follow up on whether Plaintiff will agree to amend the Complaint, and Plaintiff has failed to affirm whether Plaintiff will comply and withdraw the 1st cause of action. (Decl. of Pogosyan ¶¶3-4.) Defendant’s counsel’s declaration is proper. Accordingly, the Court will consider Defendant’s demurrer.

Plaintiff, in pro per, filed the operative Complaint on March 18, 2024, against Defendant alleging three causes of action: (1) wrongful eviction; (2) breach of quiet enjoyment; and (3) intentional infliction of emotional distress.[1] Plaintiff’s causes of action arise from Plaintiff’s and his wife’s residence at real property located at 1537 ½ W. 58th Pl., Los Angeles, CA 90047 (“Subject Property”). (See Complaint ¶6.)

Defendant filed the instant demurrer on June 18, 2024. As of the date of this hearing no opposition has been filed.

Defendant demurs to the 1st cause of action alleged in Plaintiff’s Complaint on the basis it fails to state facts sufficient to constitute a cause of action because it fails to allege that Plaintiff has surrendered possession of his residence to Defendant who is his landlord. (Demurrer, pg. 2.)

“[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.)

California recognizes the tort of wrongful eviction. (See Barkett v. Brucato (1953) 122 Cal.App.2d 264, 275.) “An essential element of a wrongful eviction claim is that the tenant has vacated the premises. [Citations.]” (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 900.)

Plaintiff alleges on or about January 1993, he moved into the Subject Property with his spouse, Bridgette Norwood. (Complaint ¶6.) Plaintiff alleges on October 1, 2020, the neighbor, who is also Defendant’s tenant, had a water pipe burst, which flooded Plaintiff’s garage, causing loss to many personal items which had sentimental value. (Complaint ¶7.) Plaintiff alleges after his garage flooded, Defendant unilaterally discarded Plaintiff’s belongings without proper notice or any form of compensation, which began a “caustic relationship” between Defendant and Plaintiff. (Complaint ¶8.)

Plaintiff alleges on November 18, 2020, Defendant[2] illegally changed Plaintiff’s lock on the garage door without providing Plaintiff prior notice or answering Plaintiff’s numerous calls for other accommodation for the loss of his garage and loss of use of his personal property therein. (Complaint ¶9.) Plaintiff alleges on November 19, 2020, Plaintiff reported Defendant’s unilateral conduct of changing the lock on the garage to the LAPD, incident number “0284”. (Complaint ¶10.) Plaintiff alleges from November 20, 2020, to March 21, 2021, Plaintiff was not able to access his belongings inside the garage due to Defendant’s unlawful unilateral act of usurping Plaintiff’s garage. (Complaint ¶11.)

Plaintiff alleges on March 9, 2021, Defendant posted a note of Plaintiff’s door and a verbal altercation ensued, wherein the police were called, and the LAPD was able to convince Defendant to provide Plaintiff with a garage key. (Complaint ¶12.) Plaintiff alleges on October 15, 2021, Defendant confronted Plaintiff on the Subject Property and falsely accused him of stealing Defendant’s tools. (Complaint ¶13.)

Plaintiff alleges on February 9, 2023, Defendant sent a letter to Plaintiff demanding that Plaintiff remove all things from inside of his garage or pay an additional $150 a month to continue using the garage. (Complaint ¶14.) Plaintiff alleges on March 16, 2023, Defendant[3] posted a notice that he will do some repairs that Plaintiff had previously requested at 1 PM the next day, March 17, 2023. (Complaint ¶15.)

Plaintiff alleges that on March 17, 2023, Defendant arrived at 10 AM, not 1 PM per his notice, and Defendant never knocked on Plaintiff’s door and Defendant used his key to effectuate his trespass. (Complaint ¶16.) Plaintiff alleges a verbal altercation ensued and Defendant changed the locks on Plaintiff’s door and left. (Complaint ¶16.)

Plaintiff alleges on September 19, 2023, Defendant filed a retaliatory unlawful detainer (LASC Case No. 23STUD12282) to terminate Plaintiff’s and his wife’s tenancy. (Complaint ¶22.) Plaintiff alleges on February 6, 2024, Defendant dismissed the unlawful detainer action. (Complaint ¶24.)

Plaintiff fails to allege he vacated the premises. (Ginsberg, 205 Cal.App.4th at pg. 900.)

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action is sustained with 20 days leave to amend.

Defendant’s unopposed demurrer to Plaintiff’s 1st cause of action is sustained with 20 days leave to amend as to the 1st cause of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant does not demur to Plaintiff’s 2nd or 3rd causes of action.

[2] The Court notes Plaintiff’s Complaint alleges “Plaintiff illegally changed Plaintiff’s lock on the garage door, without providing Plaintiff prior notice.” The Court interprets the sentence to mean that Defendant illegally changed Plaintiff’s lock on the garage door.

[3] The Court notes Plaintiff’s Complaint alleges, “Plaintiff posted a notice that his will do some repairs that Plaintiff had previously requested . . ..” The Court interprets the sentence to mean that Defendant posted a notice.