Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a landlord-tenant dispute.  Plaintiff Aaron Kohanoff is a tenant at 8787 Shoreham Drive #610, West Hollywood, California 90069 (“Property”).  Defendant Shoreham 8787 LLC allegedly owns and manages the Property.  Plaintiff alleges that Defendant collected unlawful rents and failed to repair a leaking shower door which resulted in mold growth.   

The operative complaint alleges ten claims for (1) statutory breach of implied warranty of habitability, (2) tortious breach of implied warranty of habitability, (3) negligence, (4) breach of contract, (5) nuisance, (6) breach of covenant of quiet enjoyment, (7) breach of the implied covenant of good faith and fair dealing, (8) intentional infliction of emotional distress, (9) violation of West Hollywood Municipal Code sections 17.32.010 and 17.68.010, and (10) declaratory relief.   

This hearing is on Defendant’s demurrer to and motion to strike the Complaint.  Defendant argues that (1) Plaintiff fails to state his claim for statutory breach of warranty of habitability with specificity, and the claim is duplicative of the tortious breach of warranty of habitability cause of action, (2) Plaintiff’s claim for tortious breach of warranty of habitability fails because he does not allege a material defective condition affecting the habitability of the premises and that Plaintiff gave Defendant a reasonable time to correct the defect; the claim is also duplicative of Plaintiff’s claim for negligence; (3) Plaintiff’s claim for breach of contract fails because the Complaint does not specify the terms of the lease or the specific provisions alleged to have been breached; (4) Plaintiff’s claim for nuisance fails because it is duplicative of the negligence claim, and also because it does not describe with detail how the interference caused “substantial actual damage” and “significant harm” or how Defendant “actively participated” in causing the alleged damages; (5) Plaintiff’s claim for breach of the covenant of quiet enjoyment fails because the Complaint does not allege facts showing Plaintiff was actually or constructively evicted; (6) Plaintiff’s claim for intentional infliction of emotional distress fails because Plaintiff’s contentions of intentional conduct by Defendant are unsupported by any factual allegations and there is no showing of “extreme and outrageous” conduct; (7) Plaintiff’s claim for violation of West Hollywood Municipal Code sections 17.32.010 and 17.68.010 fails because Plaintiff fails to allege with specificity that Defendant violated which portion(s) of the municipal code; there are no allegations about what the maximum allowable rent in effect at the time of Plaintiff’s tenancy and the basis for Plaintiff’s unit being ineligible for rent increases; (8) Plaintiff’s claim for declaratory relief is based on prior events, i.e., past rents, and declaratory relief cannot be used to redress past wrong, and (9) Plaintiff’s claim for punitive damages should be stricken because Plaintiff has not alleged facts showing malice, oppression or fraud.  No opposition was filed as of the posting of this tentative ruling.   

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 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.”).)  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.)  

 

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendant submits the Declaration of Robb Strom which attests the parties met and conferred by telephone and email correspondence.  This satisfies the meet and confer requirements of §§430.41 and 435.5.  

 

DISCUSSION 

No¿opposition¿was filed to Defendant’s demurrer or motion to strike.¿Thus, Plaintiff effectively¿concedes¿all¿arguments¿made in the demurrer and motion. The failure to challenge a contention in a brief results in the concession of that argument.¿(DuPont Merck Pharmaceutical Co. v. Sup. Ct.¿(2000) 78 Cal.App.4th 562, 566¿(“By failing to argue the contrary, plaintiffs concede this issue”);¿Westside Center Associates v. Safeway Stores 23, Inc.¿(1996) 42 Cal.App.4th 507, 529¿(“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”);¿Glendale Redevelopment Agency v. Parks¿(1993) 18 Cal.App.4th 1409, 1424¿(issue is impliedly conceded by failing to address it).)   

Further, because no opposition was filed, Plaintiff has not shown it can successfully amend his complaint to cure defects noted in the demurrer and motion to strike.  Accordingly, the Court sustains the demurrer and grants the motion to strike without leave to amend.   

 

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS the demurrer to and GRANTS the motion to strike the Complaint without leave to amend.   

 

IT IS SO ORDERED. 

 

DATED: October 29, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court