Judge: Elaine Lu, Case: 22STCV26421, Date: 2023-02-23 Tentative Ruling

Case Number: 22STCV26421    Hearing Date: February 23, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On August 15, 2022, Plaintiff Jeff Koester (“Plaintiff”) filed the instant action against Defendant Isaac Sastiel (“Defendant”).  The complaint asserts four causes of action for (1) Breach of Contract, (2) Wrongful Eviction, (3) Violation of Civil Code section 1940.2, and (4) Violation of Civil Code section 789.3.

On December 22, 2022, Defendant filed the instant demurrer and motion to strike the complaint.  On February 6, 2023, Plaintiff filed an opposition to the demurrer and motion to strike.  On February 15, 2023, Defendant filed his replies.

Allegations of the Operative Complaint

            The complaint alleges that:

            Defendant is the owner and/or manager of the real property located at 22850 Erwin Street, Woodland Hills, California 91367 (“Subject Property”).  (Complaint ¶ 2.) 

            In March 2021, Plaintiff “entered into a written lease for the lease of converted garage at the SUBJECT PROPERTY (the ‘LEASE AGREEMENT’). Plaintiff is no longer in possession of the LEASE AGREEMENT.”  (Id. ¶ 7.)  “Pursuant to terms of the LEASE AGREEMENT, plaintiff agreed to pay monthly rents in the amount of $1,900 in exchange for habitable, safe, and clean-living quarter.”  (Id. ¶ 8.)

            “Because of COVID-19 related issues, plaintiff was $400 short on his rent for August 2021 and failed to pay his rent for September 2021. At that time, plaintiff advised defendants of his financial difficulties because of COVID-19 and that he was applying for financial assistance for his unpaid rent through the California COVID-19 Rent Relief Program.”  (Id. ¶ 9.) 

            On October 4, 2021, Plaintiff “had a medical emergency and was admitted to the Kaiser Permanente Woodland Hills Medical Center.”  (Id. ¶ 10.)  “As plaintiff was leaving the SUBJECT PROPERTY for the hospital, plaintiffs associate informed defendants that plaintiff was being admitted to the hospital.”  (Id. ¶ 11.)  “Three days later, plaintiff was released from the hospital and returned home to his rental unit at the SUBJECT PROPERTY. To his surprise, plaintiff found the locks to the rental unit and the surrounding fences had been changed. In addition, plaintiff discovered that all his personal property, including his work tools, had been removed from his rental unit at the SUBJECT PROPERTY.”  (Id. ¶ 12.)

            “Plaintiff immediately called the police to report his property stolen. During the police investigation, defendants denied removing plaintiffs personal property from the converted garage rental unit at the SUBJECT PROPERTY. In addition, defendants refused to give plaintiff new keys to his unit at the SUBJECT PROPERTY.”  (Id. ¶ 13.)  “A few days later, plaintiff learned that his personal property was being stored at Air 1 Moving & Storage, Inc. in Chatsworth, California.”  (Id. ¶ 14.)  Plaintiff also learned that all his possessions had been packed into three wooden crates and moved to the Air 1 Moving & Storage facility on or about October 5, 2021. Furthermore, plaintiff was informed that defendants paid the storage fee for October 2021.”  (Id. ¶ 15.)

            “After the locks were changed on plaintiff’s rental unit at the SUBJECT PROPERTY, plaintiff was forced to live in his car.”  (Id. ¶ 16.)  Plaintiff also incurred additional expenses to replace items that had been locked away in the storage unit.  (Id. ¶ 17.)

            “Under the terms of the LEASE AGREEMENT, defendants had a duty to provide plaintiff with a rental unit at the SUBJECT PROPERTY.”  (Id. ¶ 20.)  “Defendants had a further duty to provide plaintiff with the appropriate notice before entering plaintiffs unit at the SUBJECT PROPERTY.”  (Id. ¶ 21.)  “Defendants, and each of them, breached the LEASE AGREEMENT by entering plaintiff’s unit without his knowledge to change the locks and remove plaintiffs personal property and furnishings.”  (Id. ¶ 23.) 

Legal Standard

Demurrer Standard 

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. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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 “give the complaint a reasonable interpretation, and read it in context.”  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “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.) 

Motion to Strike Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.).  (See CCP §§ 435-437.)  A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading.  However, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended.  (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice.  (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)  There is a similar meet and confer requirement for motions to strike.  (CCP § 435.5.)

Here, Defendant has fulfilled the meet and confer requirements.  (Noudel Decl. ¶¶ 3-5.)[1]

Discussion – Demurrer

First Cause of Action: Breach of Contract

Defendant contends that the first cause of action fails because the complaint fails to allege the terms of the agreement verbatim or attach the Lease, and the complaint is uncertain.

“The elements of a cause of action for breach of contract are: ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.’”  (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391 [internal citations omitted].)  In addition, a demurrer may be sustained if “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”  (CCP § 430.10(g).)  There is no requirement that the exact words be alleged, rather a Plaintiff may allege the legal effect of the contract.  (See Poly v. Williams (1894) 101 Cal. 648, 649-651; Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 780-781.) “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” (Progressive West Ins. Co. v. Yolo County Superior Court (2005) 135 Cal.App.4th 263, 270, Fn. 1. [italics added].)

            Here, the complaint alleges the existence of a written lease – of which Plaintiff does not have possession of a copy – by which Plaintiff “agreed to pay monthly rents in the amount of $1,900 in exchange for habitable, safe, and clean-living quarters.”  (Complaint ¶ 8.)  Though  Plaintiff is not required to plead the terms of the Lease Agreement verbatim, Plaintiff – at the very least must include the essential terms.  Plaintiff has not done so.  “A lease must include a definite description of the property leased and an agreement for rental to be paid at particular times during a specified term.”  (Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal.2d 633, 637.)  Here, the complaint merely alleges a specific amount of rent and that the rent was monthly.

            First, there is no allegation definitively defining the leased area.  As defined, the Subject Property includes an entire real property lot.  (Complaint ¶ 2.)  The complaint is unclear as to what specific area Plaintiff was renting.  The complaint alleges that Plaintiff entered into a lease for a converted garage but also alleges that the Lease Agreement was for an unspecified “habitable, safe, and clean-living quarters.”  (Id. ¶ 8.)

            Second, the lease fails to allege any specific term.  By operation of law, as Plaintiff only alleges monthly rent without specification of when in the month the rent is due, the term is presumed to be a tenancy of one month.  (Civ. Code, § 1944.)  By the time of the alleged breach of Defendant by entering the property in October 2021 the lease agreement could have been properly terminated per the agreement.  Thus, Plaintiff would be a tenant at sufferance or a trespasser at choice of Defendant, and Defendant could permissibly without notice “proceed in and maintain an action of unlawful detainer or proceed in any other authorized way, for restitution or possession of the premises.”  (Black v. Black (1926) 77 Cal.App. 82, 85.)  Instead, the complaint seems to imply a lease longer than one month in that the complaint alleges that “defendants had a duty to provide plaintiff with a rental unit at the SUBJECT PROPERTY” in October 2021 which would not necessarily be true after the termination of a one-month lease.  (Complaint ¶ 20.)  Therefore, the term of the Lease is an essential allegation that must be plead.

            Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED.

Second Cause of Action: Wrongful Eviction

            Defendant asserts that the second cause of action fails for the same reasons as the first cause of action and Plaintiff fails to state a claim for wrongful eviction.

            “A tenant who is wrongfully evicted by his landlord before the expiration of the lease term may maintain a wrongful eviction action for tort damages and punitive damages, if appropriate.”  (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 294, [italics added].)

            As noted above, based on the allegation of monthly rent without a due date and in the absence of allegations of the term of the lease, the Court must presume by operation of law that the lease is only for one month.  Thus, the Lease Agreement would have expired before the termination of the tenancy.  Moreover, there is no allegation that the eviction was improperly done as notice would not necessarily be required depending on the legal avenue Defendant utilized to evict Plaintiff as a trespasser.  (See Black, supra, 77 Cal.App. at p.85.)  Accordingly, Defendants’ demurrer to the second cause of action is SUSTAINED.

Third Cause of Action: Violation of Civil Code section 1940.2

            Defendant asserts that Plaintiff fails to allege any facts that this code section was violated.

            Pursuant to Civil Code section 1940.2, “[i]t is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling: … [¶] (4) Commit a significant and intentional violation of Section 1954.”  (Id.)  Civil Code section 1954 restricts the entry of a landlord into a tenant’s dwelling.  (Civ. Code, § 1954.)  As a statutory cause of action, a violation of Civil Code section 1940.2 must be plead with specificity.  (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795, [“the general rule that statutory causes of action must be pleaded with particularity is applicable.”].) 

            Here, the complaint alleges that “[u]nder section 1940.2(a)(4) of the Civil Code, a landlord may not, for the purpose of influencing a tenant to vacate a dwelling, ‘[c]ommit a significant and intentional violation of Section 1954.’”  (Complaint ¶ 31.)  “In general, under section 1954 of the Civil Code, a landlord may not enter the premises without prior reasonable notice to the tenant.”  (Id. ¶ 32.)  However, “[t]he court does not … assume the truth of contentions, deductions or conclusions of law.”  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) 

            Civil Code section 1954 does permit a landlord to enter the premises without notice in multiple circumstances including “(1) To respond to an emergency. [¶] (2) If the tenant is present and consents to the entry at the time of entry. [¶] (3) After the tenant has abandoned or surrendered the unit.”  (Civ. Code, § 1954(e).)  The complaint lacks any allegations indicating that these circumstances did not occur.

            Accordingly, Defendant’s demurrer to the third cause of action is SUSTAINED,

Fourth Cause of Action: Violation of Civil Code section 789.3
            Defendant asserts that Plaintiff fails to sufficiently allege a violation of Civil Code section 789.3.

            Pursuant to Civil Code section 789.3, “a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully: [¶] (1) Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device; … [¶] (3) Remove from the premises the tenant's personal property, the furnishings, or any other items without the prior written consent of the tenant…”  (Civ. Code, § 789.3(b).)

            Here, the complaint does allege that Defendant removed Plaintiff’s property and changed the locks to the property.  (Complaint ¶¶ 49-50.)  However, as noted above, as Plaintiff has failed to allege the term of the Lease Agreement or specify when rent is due, the presumption of a one month tenancy applies.  (Civ. Code § 1944.)  Thus, it is unclear whether the tenancy had ended before Defendants changed the locks and removed Plaintiff’s property.

Discussion – Motion to Strike

            Defendants move to strike the prayer for attorneys’ fees, the first through fourth causes of action, and the prayer for punitive damages.  As the Court has sustained the demurrer in whole the motion to strike is MOOT.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

            Here, there is no reasonable basis to presume that Plaintiff cannot successfully amend the complaint.  As noted above, only slightly more specificity regarding the terms of the lease is required.  Further, the complaint hints that this specificity exists and can be pled.  As there is a reasonable likelihood of a successful amendment, leave to amend is GRANTED.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Isaac Sastiel’s demurrer to the complaint is SUSTAINED WITH 15 DAYS LEAVE TO AMEND.

Defendant’s motion to strike is DENIED AS MOOT.

Plaintiff is to file an amended complaint within fifteen (15) days of notice of this order.

            The case management conference and OSC re proof of service of the First Amended Complaint are continued to April 28, 2023 at 8:30 am.

            Moving Party is to give notice and file proof of service of such.

DATED:  February 23, 2023                                                  ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court