Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Margaret Yining Jiang 

 

RESPONDING PARTY: Plaintiffs Azar Mouzari and Hassan Nafchi, Trustees of Savannah Kiam Group Associates, Partners and Family Revocable Trust 

 

BACKGROUND 

This action arises from a landlord-tenant dispute.  Plaintiffs Azar Mouzari and Hassan Nafchi as Trustees of Savannah Kiam Group Associates, Partners and Family Revocable Trust (“Landlord”) own real property located at 960 N. Tigertail Road, Los Angeles, California (the “Property”).  Landlord leased a 1-bedroom guesthouse located at the Property to Defendant Margaret Yining Jiang (“Tenant”), pursuant to a written lease (the “Lease”).   

Landlord alleges Tenant caused substantial damage to the Property by installing an unpermitted gas line.  Tenant then allegedly refused access to the unit to fix the gas line, or for a city inspector to inspect the unit.  Tenant has also failed to pay rent as of February 2023 and utility fees from at least October 2022.  Tenant further refused to vacate the Property when Landlord elected to terminate the Lease.   

The operative complaint alleges claims for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) private nuisance and (4) waste.   

This hearing is on Tenant’s demurrer to and motion to strike the Complaint.  The crux of Tenant’s demurrer is that the Lease is for a unit with no certificate of occupancy and is therefore illegal and void.  Tenant also moves to strike the Complaint on the same ground, in addition to seeking to strike the requests for punitive damages and attorneys’ fees.    

LEGAL STANDARD 

“[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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike 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. (Code Civ. Proc., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

REQUEST FOR JUDICIAL NOTICE 

Tenant seeks judicial notice of (1) a January 23, 2023 notice of code violation from the City of Los Angeles for the Property and (2) Plaintiff’s Complaint.  The Court grants judicial notice of the Complaint pursuant to Evid. Code § 452(d). 

As to the code violation, Landlord argues the Court should deny judicial notice because the notice of code violation does not fall within any of the categories of judicially noticeable documents.  The Court disagrees.  The notice is the proper subject for judicial notice as a verifiable fact “not reasonably subject to dispute [that is] capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).)  While Landlord disputes the significance of the notice of code violation, that does not mean the document itself is not reasonably subject to dispute.   

However, while the Court can take judicial notice of the existence of the code violation, it cannot assume the truth of the matters stated therein.  (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 (“Although a court is authorized to take judicial notice in connection with a demurrer … it may not judicially notice the truth of assertions in declarations or affidavits filed in court proceedings.”); Mangini v. R.J. Reynolds (1994) 7 Cal.4th 1057, 1063 (overruled on other grounds) (“While courts may notice official acts and public records, we do not take judicial notice of the truth of all matters stated therein.”); Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 (“[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.”). 

MEET AND CONFER 

Landlord argues that Tenant’s demurrer and motion to strike are procedurally improper because they failed to meet and confer in person or by telephone as required under Code Civ. Proc. § 430.41.  However, even if that were true, Code Civ. Proc. § 430.41(a)(4) states that a “determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” 

DISCUSSION 

Demurrer to Breach of Contract Claim 

Tenant argues the Lease is illegal and unenforceable because it was for a unit with no certificate of occupancy.  Tenant’s sole support for its argument is the notice of code violation.  But while the Court can take judicial notice of the existence of the notice, it cannot assume the truth of the contents therein.       

“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.  While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.  When judicial notice is taken of a document, … the truthfulness and proper interpretation of the document are disputable.”  (Herrera v. Deutsche Bank Nat’l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)   

Because the face of the complaint does not establish there was no certificate of occupancy, and there are no judicially noticeable facts that support this finding, the Court cannot conclude the Lease is illegal.  Accordingly, the Court OVERRULES the demurrer as to Plaintiff’s first cause of action for breach of contract.     

Demurrer to Breach of Covenant Claim 

A breach of the covenant of good faith and fair dealing depends on the existence of an underlying contract.  (Peterson Development Co. v. Torrey Pines Bank (1991) 233 Cal.App.3d 103, 116.)  Tenant argues because the underlying contract is illegal, the breach of covenant of good faith and fair dealing claim fails for the same reason the breach of contract claim fails.  For the same reasons set forth above, this argument is unavailing.  Accordingly, the Court OVERRULES the demurrer as to Plaintiff’s second cause of action for breach of the implied covenant of good faith and fair dealing.     

Demurrer to Private Nuisance Claim 

To prevail on an action for private nuisance, a plaintiff must first prove an interference with the plaintiff's use and enjoyment of his or her property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.)  Second, “the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer ‘substantial actual damage.’” (Ibid.)  Third, “‘[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’” (Id.) 

Based on the above recitation of elements, a claim for private nuisance does not require the existence of a contract.  Accordingly, even if Tenant were correct that the Lease is illegal, this would not establish that the nuisance claim is subject to demurrer.  Accordingly, the Court OVERRULES the demurrer as to Plaintiff’s third cause of action for nuisance.    

Demurrer to Waste Claim 

“[W]aste is defined as ‘an unlawful act or omission of duty on the part of a tenant, resulting in permanent injury to the [property].”  (Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal. App. 4th 1183, 1214 (internal quotations and citations omitted).)  Tenant argues that Landlord cannot plead Tenant had a duty to ensure that the construction of the gas line was done properly or to code because she did not own the Property, and Plaintiff approved the installation of the gas line.   

But the Complaint does not allege Plaintiff approved the installation of the gas line.  To the contrary, it alleges the gas line was “completed, directed and paid for solely by [Tenant].”  (Compl. ¶ 9.)  Further, that Tenant did not own the Property does not relieve her of the obligation not to engage in waste.  If it were otherwise, a claim for waste could never be plead.  Accordingly, the Court OVERRULES the demurrer as to Plaintiff’s claim of waste.   

Motion to Strike Punitive Damages 

Tenant moves to strike Landlord’s claim for punitive damages.  Tenant argues Landlord has only made conclusory allegations that they are entitled to punitive damages without stating facts supporting a finding of malice, oppression or fraud.  The Court agrees.    

A motion to strike is the proper procedure to challenge a claim for punitive damages.   

(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) 7:185, p: 7(l)-69; Caliber Bodyworks. Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385 overruled on other grounds by ZB, N.A. v. Superior Court (2019) 8 Cal. 5th 175, 195.)  

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).)  

Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)     

To establish “malice”, a plaintiff must demonstrate that (1) the defendant intended to cause injury to plaintiff or (2) despicable conduct with a willful and conscious disregard of the rights or safety of others.  (Civ. Code §3294(c)(1).).  “[A]bsent an intent to injure the plaintiff, malice requires more than a willful and conscious disregard of the plaintiffs’ interest.  The additional component of ‘despicable conduct’ must be found.”  (College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  To establish “oppression,” Plaintiff must allege “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Id.)  To establish “fraud,” Plaintiffs must allege “an 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.)   

Malice and oppression both require a finding of despicable conduct.  “Despicable” means conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)  “Such conduct has been described as having the character of outrage frequently associated with [a] crime.”  (Id.)   

Here, Landlord alleges that Tenant failed to properly install a gas line, resulting in a hazard.  Landlord further alleges Tenant refused access to the unit to fix the problem, including allowing city inspectors to determine the extent of the damage.  Landlord also alleges Tenant failed to pay rent and utility, and to vacate the Property once the Lease was terminated.  These facts do not give rise to a finding of malice, oppression or fraud.  They are not conduct beyond the pale of decency which have the character of outrage typically associated with a crime.  Instead, this is a garden variety landlord-tenant dispute.       

Accordingly, the Court GRANTS Tenant’s motion to strike Landlord’s punitive damages claim without leave to amend. 

Motion to Strike Attorneys’ Fees 

Tenant moves to strike Landlord’s request for attorneys’ fees because there is no agreement that contains an attorney fees’ clause nor are there any statutes cited in the Complaint that would allow Landlord to recover attorneys’ fees.  In opposition, Landlord argues that the parties’ rental agreement provides that “the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, collectively not to exceed $1,000 …"  (Ex. 1 to Compl.).     

However, Landlord is both the attorney and the client.  It is well established that a lawyer who represents himself cannot recover attorney’s fees.  (Trope v. Katz (1995) 11 Cal.4th 274, 279-282.) 

Accordingly, the Court GRANTS Tenant’s motion to strike Landlord’s prayer for attorneys’ fees without leave to amend. 

CONCLUSION 

Based on the foregoing, the Court OVERRULES Defendant’s demurrer and GRANTS Defendant’s motion to strike.  The Court grants the motion to strike the punitive damages claim and request for attorneys’ fees without leave to amend.  Specifically, the Court grants the motion to strike paragraphs 6-7 of the Prayer for Relief.   

 

IT IS SO ORDERED. 

 

DATED: March 28, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court