Judge: Daniel S. Murphy, Case: 21STCV33639, Date: 2025-01-27 Tentative Ruling

Case Number: 21STCV33639    Hearing Date: January 27, 2025    Dept: 32

BACKGROUND

            On September 13, 2021, Plaintiffs Natalie Lesly and Evangelos Lympouridis filed this action against Defendants S&N Investments Family LP, Arlette Schmuel, and Schlomo Schmuel, alleging 10 causes of action stemming from alleged harassment and threats by Defendants, who were Plaintiffs’ landlords. Plaintiffs filed the operative First Amended Complaint on November 26, 2024.

            According to the FAC, Plaintiffs entered into a residential lease with Schmuel “Sam” Schmuel (Mr. Schmuel) in August 2017. (FAC ¶ 12.) Plaintiffs had a friendly relationship with Mr. Schmuel. (Ibid.) However, once Mr. Schmuel passed away, Defendants engaged in a campaign of harassment and retaliation against Plaintiffs. (Id., ¶¶ 13-14.) This included issuing a fraudulent notice to vacate in circumvention of an eviction moratorium and rent control ordinance. (Id., ¶¶ 16-17.) Defendants also allegedly changed the gate code and left the gate open during riots, despite knowing that Plaintiffs had been burglarized before. (Id., ¶¶ 19-21.) Defendants allegedly turned off a water spigot, causing Plaintiffs’ garden to die. (Id., ¶ 23.) These actions were allegedly aimed at forcing Plaintiffs out of the premises. (Id., ¶ 21.)      

            On December 20, 2024, Defendant Arlette Schmuel filed the instant demurrer and motion to strike against the FAC. Plaintiffs filed their opposition on January 13, 2025. Defendant filed her reply on January 16, 2025.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) 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. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court finds that Defendant has satisfied the meet and confer requirement. (See Weiss Decl.)

DISCUSSION

I. Demurrer

            a. Breach of Contract

            To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A breach of contract can be alleged by simply “plead[ing] the legal effect of the contract rather than its precise language.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)

            Defendant argues that she is not a party to the alleged contract, which was between Plaintiffs and Mr. Schmuel. However, the FAC alleges that Plaintiffs entered into lease agreement with Mr. Schmuel “as father of Defendants, on behalf of Defendants.” (FAC ¶ 12.) The FAC further alleges that “Plaintiffs and Defendants entered into a written Residential Lease Agreement on or about August 1, 2017.” (Id., ¶ 26.) This would include moving Defendant Arlette Schmuel. Plaintiffs have alleged the existence of a contract for pleading purposes.

            Defendant also argues that the contract is not attached or pled verbatim. However, a contract can also be pled by its legal effect. (Miles, supra, 236 Cal.App.4th at p. 402.) The FAC alleges that the contract was a residential lease agreement which “entitled Plaintiffs to lawful possession of the premises, free of nuisance, lockout, shut-off of utility services and harassment.” (FAC ¶ 27.) “The lease also provides that if Plaintiffs should vacate the premises, they would not be charged for normal wear and tear of the premises, and that the security deposit, with any unpaid accrued interest, along with full accounting would be mailed to the tenant upon vacating the premises.” (Id., ¶ 28.) This sufficiently demonstrates the legal effect of the contract for pleading purposes.

            Defendants allegedly breached the contract by “engaging in systematic harassment of Plaintiffs, changing gate access codes to the Property, leaving security gates open, shutting off water and giving them fraudulent notices to comply.” (FAC ¶ 30.) “Defendants further breached the lease agreement by forcing Plaintiffs to vacate the Property, retaining Plaintiffs’ security deposit and falsifying reasons why the security deposit was being withheld, including but not limited to replacement of very old appliances and future rent.” (Id., ¶ 31.)

            These facts are sufficient to establish a breach of contract at the pleading stage. The demurrer is OVERRULED as to the first cause of action.

            b. Implied Covenant of Quiet Enjoyment

            “[E]very lease contains an implied covenant of quiet enjoyment.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300.) The covenant “insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Ibid.)

            Defendant argues that no facts are alleged as to her specifically. However, the FAC attributes the offending conduct to all Defendants, which would include moving Defendant. (FAC ¶ 36.) Defendant then concludes that the alleged conduct is not a violation of quiet enjoyment. That is a factual question unsuited for demurrer. For pleading purposes, the alleged conduct sufficiently constitutes interference with Plaintiffs’ right to use and enjoy the premises. The “specifics as to time, circumstances, nature of injury or amount” are also factual matters for discovery. (See Dem. 9:26-27.)

            The demurrer is OVERRULED as to the second cause of action.

            c. Private Nuisance

            “Anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Civ. Code, § 3479.) “It is settled that where conduct which violates a duty owed to another also interferes with that party's free use and enjoyment of his property, nuisance liability arises.” (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1390.)

            Defendant argues that the alleged conduct does not constitute a severe enough interference to be considered a nuisance. Again, this is a factual issue. For pleading purposes, the actions alleged in the FAC are sufficient to demonstrate an unreasonable interference with Plaintiffs’ use of the property.

            The demurrer is OVERRULED as to the third cause of action.

            d. Negligence

            The elements of negligence are: (1) a duty to exercise ordinary care; (2) breach of that duty; (3) causation; and (4) damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

            Defendant argues that this cause of action fails to allege any negligent act or any resulting damage. The FAC alleges Defendant’s duty as a landlord and outlines the actions that constituted a breach of that duty. (FAC ¶¶ 51-52.) Again, Defendant’s belief that the actions are not severe enough is not a reason to sustain the demurrer. Plaintiffs have alleged their damages. (Id., ¶¶ 53-54.) The precise extent and amount are factual matters.

            The demurrer is OVERRULED as to the fourth cause of action.

e. Intentional Infliction of Emotional Distress

            To state a cause of action for intentional infliction of emotional distress, a plaintiff must establish: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “For conduct to be outrageous, it must be so extreme as to exceed all bounds of that usually tolerated by a civilized community.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172.) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

            The FAC alleges that “Plaintiffs have suffered, and continue to suffer, mental stress, severe emotional distress, anxiety, annoyance and discomfort, fear.” (FAC ¶ 58.) This is generic and insufficient to state severe emotional distress. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [“discomfort, worry, anxiety, upset stomach, concern, and agitation” do not satisfy the severity standard].)

            The demurrer is SUSTAINED as to the fifth cause of action.

            f. Civil Code Section 1940.2

            “It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling:

(1)  Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code.

(2)  Engage in conduct that violates Section 518 of the Penal Code.

(3)  Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.

(4)  Commit a significant and intentional violation of Section 1954.

(5)  Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief.”

(Civ. Code, § 1940.2(a).)

            The actions alleged throughout the FAC sufficiently constitute threatening or menacing conduct which interfered with Plaintiffs’ quiet enjoyment and were designed to force Plaintiffs out of the premises. (See FAC ¶¶ 62-63 [shutting off water, preventing access to home, leaving gate open during riots, photographing Plaintiffs, threatening eviction].) Defendant’s personal belief that the acts were not menacing or threatening is not a reason to sustain the demurrer.

            The demurrer is OVERRULED as to the sixth cause of action

            g. Constructive Eviction

            “A constructive eviction occurs when the acts or omissions to act of a landlord, or any disturbance or interference with the tenant's possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.” (Groh v. Kover's Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614.)

Defendant argues that because the quiet enjoyment claim fails, the alleged actions were not severe enough to lead to constructive eviction. However, as discussed above, the quiet enjoyment claim has been adequately pled, and the sufficiency of the interference is a factual matter. Thus, the constructive eviction claim has been adequately pled.

            The demurrer is OVERRULED as to the seventh cause of action.

h. Rent Stabilization Ordinance

            The FAC alleges that the West Hollywood RSO makes it unlawful to “willfully engage in harassment of any tenant of a rental housing unit in a manner that is likely to create a hostile living environment or cause a reasonable tenant similarly situated to vacate the rental housing unit.” (FAC ¶ 80.) The conduct alleged in the FAC and discussed herein sufficiently demonstrates harassment in violation of the RSO. Defendant takes issue with one specific allegation about the lease being unilaterally modified. (See FAC ¶ 83.) However, a defect with one allegation does not alter the fact that the FAC as a whole alleges a violation of the RSO.

            The demurrer is OVERRULED as to the eighth cause of action.

            i. Unfair Business Practices

            Business and Professions Code section 17200 prohibits unlawful, unfair, or fraudulent business acts or practices. Each of the three prongs is an independent basis for relief. (Smith v. State Farm Mutual Automobile Insurance Co. (2001) 93 Cal.App.4th 700, 718.) Unlawful conduct is defined as any practice forbidden by law. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.) UCL actions alleging unlawful conduct “borrow” from other statutes or common law causes of action outside Section 17200. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)

            The various torts and statutory violations discussed above, which are adequately pled, constitute “unlawful” conduct which serves as a predicate to the UCL claim. Thus, the UCL claim is sufficiently alleged. 

            The demurrer is OVERRULED as to the ninth cause of action.

            j. Conversion

            The elements of conversion are: (1) the plaintiff’s ownership or right to possession of the personal property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.) “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

            The conversion claim alleges that Defendants wrongfully retained Plaintiffs’ security deposit. (FAC ¶¶ 119.) This is an identifiable sum of money even if the specific amount is not pled in the complaint. Defendant argues that there must be an accounting to determine the amount owed, if any. This is a factual matter.

            Defendant also argues that wrongful retention of a security deposit cannot be addressed through the tort of conversion because it is governed by Civil Code section 1950.5. Defendant cites no authority for this proposition. In at least one case, the Court of Appeal has acknowledged that “the withholding of the $680 from the security deposit” supported judgment in the plaintiff’s favor “on the breach of contract and conversion causes of action.” (Aljabban v. Fontana Indoor Swap Meet, Inc. (2020) 54 Cal.App.5th 482, 509.)

            The demurrer is OVERRULED as to the tenth cause of action. 

II. Motion to Strike

            “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “‘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., subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., subd. (c)(2).) Fraud is “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., subd. (c)(3).)

            The actions alleged in the complaint, discussed above, sufficiently demonstrate “a willful and conscious disregard of the rights or safety of” Plaintiffs and their children, as well as subjecting Plaintiffs to “unjust hardship in conscious disregard of that person’s rights.” (See Civ. Code, § 3294(c).) Thus, the FAC adequately pleads punitive damages.

            The motion to strike is DENIED.

CONCLUSION

            Defendant Arlette Schmuel’s demurrer is SUSTAINED without leave to amend as to the fifth cause of action and OVERRULED in all other respects. The motion to strike is DENIED.