Judge: Frank M. Tavelman, Case: 22BBCV01273, Date: 2023-10-20 Tentative Ruling
REQUESTING ORAL ARGUMENT PER CRC 3.1308
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Case Number: 22BBCV01273 Hearing Date: January 4, 2024 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
TENTATIVE
RULING
JANUARY 4,
2024
DEMURRER
& MOTION TO STRIKE
Los Angeles Superior Court
Case # 22BBCV01273
MP: R Hazelhurst, M.R. Investments, and Rami
Grinwald (Defendants)
RP: Zhora
Baghdasarian (Plaintiff)
The Court is not requesting oral argument on
this matter. Pursuant to California Rules of Court, Rule 3.1308(a)(1)
notice of intent to appear is required. Unless the Court directs argument
in the Tentative Ruling, no argument will be permitted unless a “party notifies
all other parties and the court by 4:00 p.m. on the court day before the
hearing of the party’s intention to appear and argue. The tentative
ruling will become the ruling of the court if no notice of intent to appear is
received.”
Notice may be given either by email at
BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ALLEGATIONS:
Zhora Baghdasarian (“Plaintiff”) brings this
action against R Hazelhurst, M.R. Investments (“Entity Defendants”), and Rami
Grinwald (“Grinwald”) (collectively “Defendants”). Plaintiff alleges Defendants
wrongfully evicted her from a property she has rented since 2008 in violation
of both the lease agreement and various statutes which protect the elderly and
disabled.
Plaintiff’s First Amended Complaint (“FAC”)
contains 14 causes of action for: (1) Breach of Contract; (2) Negligence; (3)
Breach of the Warranty of Habitability; (4) Breach of the Covenant of Quiet
Enjoyment; (5) Intentional Infliction of Emotional Distress; (6) Negligent
Infliction of Emotional Distress; (7) Unfair Business Practices in Violation of
California Business & Professions Code § 17200 et Seq.; (8) Intentional
Influence to Vacate; (9) Americans With Disabilities Violations; (10)
California’s Unruh Civil Rights Act Violations; (11) California’s Disabled
Persons Act Violations; (12) L.A.M.C Violations; (13) Breach of Fiduciary Duty;
and (14) Violation Of LAMC 1950.5(g).
Defendants now demur to Plaintiff’s causes of
action numbers 1, 5, and 8-13. Defendants move to strike all references to the
eviction from the FAC on the basis of the litigation privilege. Defendants also
move to strike Plaintiff’s requests for punitive damages in connection with
Plaintiff’s cause of action for intentional infliction of emotional distress.
Plaintiff opposes and Defendants reply.
ANALYSIS:
I.
LEGAL
STANDARDS
The grounds for a demurrer must appear on the
face of the pleading or from judicially noticeable matters. (C.C.P. §
430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a
demurrer hearing is whether the complaint states a cause of action. (Id.)
A demurrer assumes the truth of all factual,
material allegations properly pled in the challenged pleading. (Blank v.
Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable,
the plaintiff’s allegations must be accepted as true for the purpose of ruling
on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981)
123 Cal. App. 3d 593, 604.) But this does not include contentions;
deductions; conclusions of fact or law alleged in the complaint; facts
impossible in law; or allegations contrary to facts of which a court may take
judicial notice. (Blank, supra, 39 Cal. 3d at 318.)
Pursuant to Code of Civil Procedure (“C.C.P.”)
§§ 430.10(e) and (f), the party against whom a complaint has been filed may
demur to the pleading on the grounds that the pleading does not state facts
sufficient to constitute a cause of action, or that the pleading is uncertain,
ambiguous and/or unintelligible. It is an abuse of discretion to sustain a
demurrer without leave to amend if there is a reasonable probability that the
defect can be cured by amendment. (Schifando v. City of Los Angeles
(2003) 31 Cal. 4th 1074, 1082.)
Motions to strike are used to reach defects or
objections to pleadings that are not challengeable by demurrer, such as words,
phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper
procedure to attack false allegations in a pleading is a motion to strike.
(C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435,
“[t]he court may, upon a motion made pursuant to Section 435 [notice of motion
to strike whole or part of complaint], or at any time in its discretion, and upon
terms it deems proper: (a) Strike out any irrelevant, false, or improper matter
inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include
immaterial allegations that are not essential to the claim or those not
pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)
The court may also “[s]trike out 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.” (C.C.P. § 436 (b).)
To
succeed on a motion to strike punitive damages allegations, it must be said as
a matter of law that the alleged behavior was not so vile, base, or
contemptible that it would not be looked down upon and despised by ordinary
decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217,
1228-1229.)
II.
MEET
& CONFER
C.C.P. §§ 430.41(a) and 435.5(a) requires that
the moving party meet and confer with the party who filed the pleading that is
subject to the demurrer and/or motion to strike. Upon review the Court finds
the meet and confer requirements were met. (Kurtz Decl. ¶¶ 4-5.)
III.
MERITS
Demurrer
Litigation Privilege
As a preliminary matter, the
Court addresses Defendants’ demurrer on grounds that some of Plaintiff’s causes
of action are barred by the litigation privilege. Defendants argue that the
litigation privilege bars Plaintiff’s causes of action numbers 5 and 8-11.
The litigation privilege within
Civil Code § 47(b) is an “absolute” privilege (Mallard v. Progressive Choice
Ins. Co. (2010) 188 Cal.App.4th 531, 543). “The litigation privilege,
however, is not without limit.” (Action Apartment Association, Inc. v. City
of Santa Monica (2007) 41 Cal.4th 1232, 1242.)
Courts can, and have, applied the
litigation privilege to bar a cause of action on demurrer. In Silberg v.
Anderson, the California Supreme Court confirmed a ruling which
sustained such a demurrer. (Silberg v. Anderson (1990) 50 Cal.3d 205,
210.) The plaintiff in Silberg brought his claims against his wife’s
attorney in a prior marital dissolution action, arguing the attorney had
deceived him into participating in a biased psychological examination. (Id.)
The attorney demurred to the complaint, arguing plaintiff failed to state facts
sufficient to constitute a cause of action because the attorney’s statements
during the litigation were privileged under Civil Code § 47. (Id. at
221.) The Silberg court confirmed the sustaining of the demurrer,
finding that an “interest of justice exception” did not apply. (Id. at
218-219.)
Silberg confirms the
general concept that the litigation privilege can be applied upon demurrer.
Other case law exists supporting this general concept. (see Home Ins. Co. v.
Zurich Ins. Co. (2002) 96 Cal.App.4th 17 [sustaining a demurrer on
grounds that litigation privilege barred a claim for fraudulent inducement
where the inducing statement was made in the course of litigation]; see also Tom
Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212
Cal.App.4th 1283 [sustaining a demurrer to a negligence cause of action because
government employee’s release of funds obtained via levy was privileged under Civil
Code § 47].) However, Silberg, Home Ins., and Tom Jones
are distinguishable from the instant case in that none of them contemplate
the application of the litigation privilege to causes of action stemming from
the filing of an unlawful detainer action.
Case law applying the litigation
privilege to unlawful detainer actions exists, but it usually arises in the
context of a special motion to strike (“anti-SLAPP” motion). For example,
Defendants cite to Feldman v. 1100 Park Lane Associates in
contending that the litigation privilege applies to unlawful detainer actions.
The Court agrees that Feldman stands for this principle, however the
reasoning of the Feldman court was in some part reliant on the
procedural posture of an anti-SLAPP motion. This procedural difference makes
the principles of Feldman more difficult, though not impossible, to
apply in the demurrer context.
Feldman concerned a special
motion to strike causes of action for retaliatory eviction, negligence, and wrongful
eviction. (Feldman v. 1100 Park Lane Associates (2008) 160
Cal.App.4th 1467, 1473.) All of the causes of action stemmed from defendant’s
filing of an unlawful detainer complaint. (Id.) The plaintiff in Feldman
alleged that the defendant had made false statements to law enforcement and
further false statements in a three-day notice to quit served on plaintiff. (Id.)
The California Court of Appeals upheld the striking of the retaliatory eviction
cause of action, finding the plaintiff did not make a prima facie showing that
they were likely to succeed on the merits. (Id. at 1492.) The court also
found the litigation privilege provided a defense to the cause of action for
negligence and that the plaintiff had again failed to demonstrate likelihood of
success. (Id.) Finally, the wrongful eviction claim was held to be
preempted by the state enacted litigation privilege because it was based on a
city ordinance. (Id. at 1494.)
It appears from the Court’s reading
that the holding of Silberg was at least partially reliant on facts
stemming from the anti-SLAPP procedure. In their preliminary discussion of
whether the litigation privilege applied to notices to quit, the Court found the
law specifies that a three-day notice is protected by the litigation
privilege “when it relates to litigation that is contemplated in good
faith and under serious consideration.” (Id. at 1486.) The Feldman court
held that application of the litigation privilege to a notice to quit
is thus a question of fact. (Id. at 1487.) “The question of fact is
not whether the service was malicious or done with a bad intent or whether it
was done based upon facts the landlord has no reasonable cause to believe to be
true. Rather, the factual question . . . is whether a prelitigation
communication relates to litigation that is contemplated in good faith and
under serious consideration.” (Id. [internal quotation marks and
citations omitted].)
The determination of fact
contemplated in Feldman does not speak to the merits of the action. (Bisno
v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1552.)
“Instead, the focus is on whether the unlawful detainer action was seriously
contemplated when the notice was served, without regard to its merits or the
landlord's motive.” (Id.) Where a
three-day notice to quit was quickly followed by an unlawful detainer action, the
litigation privilege applies to bar causes of action stemming from that notice.
(Id.)
The Court notes that parts of the Feldman
court’s ruling relied on their finding that the plaintiffs had not shown
likelihood of success on the merits. This is a finding which is uniquely
enabled by the presentation of evidence on a special motion to strike.
Anti-SLAPP motions are procedurally akin to summary judgment motions and afford
the Court the presentation of evidence speaking to the merits of the parties’
claims. In contrast, the Court cannot consider the presentation of evidence or the
likelihood of success on the merits on demurrer.
Regardless, the Court finds the sustaining of a
demurrer on the basis of litigation privilege is appropriate in this instance. The
grounds for a demurrer must appear on the face of the pleading or from
judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan
(1985) 39 Cal. 3d 311, 318.) For this demurrer to be sustained, the application
of the litigation privilege to Plaintiff’s complaint must appear on the face of
the Complaint. In other words, Plaintiff’s Complaint must present no cause of
action which is not barred by the litigation privilege without further
consideration of any evidence or non-judicially noticed materials.
The gravamen of Plaintiff’s causes of action 5
and 8-11 are the three-day notice to quit and unlawful detainer action. (FAC
Exh. C.) As explained in greater detail below, Plaintiff’s FAC states no facts
supporting causes of action 5 and 8-11 which stand separate from the three-day
notice to quit or unlawful detainer action. Plaintiff’s claims of
discrimination on the basis of disability remain unsupported by any factual
allegations.
Plaintiff’s allegations with respect to
discrimination based on her disability are as follows:
The
attempt to wrongfully evict an elderly, disabled tenant is simply
discriminating against a handicap tenant who pays lower rent due to residing
there since 2008. (FAC ¶ 24.) Defendants, at all times, had the power to make
changes to their actions, including employment of abatement measures,
alternative accommodations for being handicap, but refused to take any
corrective and/or curative measures in spite or actual knowledge of the
Plaintiff’s ability to have quite enjoyment and his health and/or safety. (FAC
¶ 38.)
Plaintiff offers no facts in support of her
allegations that the unlawful detainer action was filed with intent to
discriminate. Plaintiff only alleges in a conclusory manner that because she is
an immigrant, disabled, and elderly, that the unlawful detainer action must
have been discriminatory. Plaintiff alleges no facts as to what her disability
is or how Defendants refused to accommodate this disability. Without any
specific facts, such as acts by the apartment manager or Entity Defendants,
Plaintiff’s claims of discrimination remain conclusory.
At current, the FAC proceeds with its claims
purely on the factual allegations that the three-day notice and unlawful
detainer action were wrongful. On its face the FAC only contains factual
allegations of Defendants’ actions which are subject to the litigation
privilege. Conversely, the FAC does not state any factual allegations as to tortious
behavior falling outside of the litigation privilege. Plaintiff alludes to
discrimination and denial of access, but these allusions are unsupported by any
facts as to Defendants’ behavior outside the three-day notice to quit and
unlawful detainer filing. Further, the FAC pleads no facts from which the Court
could conclude the three-day notice to quit was not contemplated in good faith
and under serious consideration of an unlawful detainer action. Accordingly,
the demurrer to causes of action 5 and 8-11 is SUSTAINED.
Leave to Amend
Lastly, the Court wishes to discuss the ruling
in Winslett v. 1811 27th Avenue, LLC. In Winslett, the California
Court of Appeals held that Civil Code §47(b) did not apply to an action brought
under Civil Code §1942.5, a statute that prohibits retaliatory evictions. (Winslett
v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 254.) Thus, a
landlord’s filing of an unlawful detainer action in retaliation for the
tenant’s exercise of certain rights was not immunized by Civil Code §47(b). (Id.)
Here, Plaintiff has not alleged a Civil Code
§1942.5 cause of action. While it is true her claim is that the eviction
process was retaliatorily and for discriminatory reasons, Plaintiff has failed
to allege facts in support of that claim in her FAC.
The Court notes that Plaintiff could still amend
her FAC to allege facts sufficient to support a cause of action. Insofar as such amendments remain possible,
the Court is inclined to grant Plaintiff 20 days’ leave to amend the complaint.
First Cause of Action –
Sustained without Leave to Amend
Defendants demurrer to this cause
of action as against individual defendant Grinwald. Grinwald is alleged to be “an
individual acting as an agent/ manager/ officer/ authorized representative for
Defendants R Hazelhurst, M.R. Investments, and/or MRVL Investments.” (FAC ¶ 6.)
Defendants argue that the FAC states insufficient facts ads to attach liability
to Grinwald as an individual. Defendants argue that while Grinwald’s signature
is present on the rental agreement, his signature was made as an agent of the Entity
Defendants.
In opposition Plaintiff argues
that it is obvious Grinwald “identified, took advantage of the contract, and
was a party on the aforementioned agreement.” Plaintiff argues that because Grinwald
signed off on the eviction action and sent emails when rent was received, that
he is personally liable for the breach of contract. Plaintiff cites to no
authority which indicates these actions bind Grinwald individually.
“Under California law, only a
signatory to a contract may be liable for any breach.” (Clemens v. Am.
Warranty Corp. (1987) 193 Cal.App.3d 444, 452.) “[A]n agent for a party to
a contract not made with or in the name of the agent is not a real party in
interest with standing to sue on the contract.” (Powers v. Ashton (1975)
45 Cal.App.3d 783, 789.) The presumption is that an agent intends to bind his
principal and not to incur personal liability. (Heringer v. Schumacher
(1928) 88 Cal.App.349, 352.) An “agent will not be personally bound except upon
clear and explicit evidence of an intention to substitute or superadd his
personal liability for or to that of the principal.” (Id.)
Here, there is no evidence that
Grinwald signed the rental agreement in any capacity other than his capacity as
agent for the Entity Defendants. (See FAC Exh. A.) There is no indication that Grinwald signed
the agreement with the intent to be bound individually. From the Court’s review
of the rental agreement, it does not appear that any facts could be added upon
amendment that would support individual liability for Grinwald.
Accordingly, the demurrer to the
first cause of action as to Rami Grinwald is SUSTAINED without leave to amend.
Twelfth Cause of Action –
Sustained with Leave to Amend
Plaintiff’s twelfth cause of
action alleges a violation of Los Angeles Municipal Code (“LAMC”) § 49.99. LAMC
§ 49.99 prohibited evictions during the COVID-19 state of emergency based upon
(1) “no-fault” reasons; (2) “non-payment of rent,” (3) “presence of
unauthorized pets,” or (4) “nuisance related to COVID-19.”
Defendants argue Plaintiff’s
cause of action fails to state sufficient facts because the FAC specifically
provides the three-day Notice to Quit resulted from a complaint of someone
making “loud noises” in the apartment. (See FAC Exh. C.) Defendants argue that
Plaintiff has not stated a violation of LAMC § 49.99 because a noise violation
is an at-fault reason for eviction. Plaintiff makes no acknowledgement of this
argument in her opposition papers.
The Court finds that the FAC does
not state sufficient facts as to a violation of LAMC § 49.99. Plaintiff’s FAC
clearly states the reason given for the eviction notice was a noise complaint
which does not qualify as a “no-fault” reason for eviction or a “nuisance
related to COVID-19. It is possible that Plaintiff could amend the FAC to add
facts speaking to a no-fault reason for eviction, but the FAC does not
currently do so.
Accordingly, the demurrer to the
twelfth cause of action is SUSTAINED with 20 days’ leave to amend.
Thirteenth Cause of Action –
Sustained with Leave to Amend
A cause of action for breach of
fiduciary duty requires plaintiff to plead that defendant knowingly undertook
to act on behalf of or for the benefit of another or entered into a
relationship which imposes that undertaking as a matter of law. Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221. A
landlord and a tenant generally do not stand in a fiduciary relationship. (Frances
T. v. Village Green Owners Ass'n. (1986) 42 Cal.3d490, 513.
The FAC does not specifically
allege how a fiduciary relationship between Plaintiff and Defendants was
created. It states they “By the virtue of the lease agreement and
landlord-tenant relationship, Defendant[s] had a fiduciary duty to Plaintiff to
act with the utmost good faith and in his best interests.” (FAC ¶ 204.) As
explained above, a landlord-tenant relationship, without more, does not create
a fiduciary duty.
The Court finds that while it is
not likely, it is possible that Plaintiff could add facts to support the
existence of a fiduciary duty. Accordingly, the demurrer to the thirteenth
cause of action is SUSTAINED with 20 days’ leave to amend.
Motion to Strike
Defendants
seek to strike various portions of the FAC which reference the unlawful
detainer action. As the Court sustains the demurrer to the causes of action
which reference the eviction action, the motion to strike these portions is MOOT.
Defendants
also seek to strike various portions of the FAC which request punitive damages
and attorneys’ fees. Given the Court has sustained the demurrer to the cause of
action upon which these claims can be made with leave to amend, the motion to
strike punitive damages is MOOT.
RULING:
In the event the parties submit on this
tentative ruling, or a party requests a signed order or the court in its
discretion elects to sign a formal order, the following form will be either
electronically signed or signed in hard copy and entered into the court’s
records.
ORDER
R Hazelhurst, M.R. Investments, and Rami
Grinwald’s Demurrer and Motion to Strike
came on regularly for hearing on January 4, 2024, with appearances/submissions
as noted in the minute order for said hearing, and the court, being fully
advised in the premises, did then and there rule as follows:
THE
DEMURRER TO THE FIRST CAUSE OF ACTION AS TO RAMI GRINWALD IS SUSTAINED WITHOUT
LEAVE TO AMEND.
THE
DEMURRER TO THE FIFTH, EIGHTH, NINTH, TENTH, ELEVENTH, TWELFTH, AND THIRTEENTH
CAUSES OF ACTION ARE SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.
THE
MOTION TO STRIKE IS MOOT.
THE
CASE MANAGEMENT CONFERENCE IS CONTINUED TO APRIL 10, 2024 AT 9:00 A.M.
UNLESS
ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: January
4, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior
Court of California
County of Los Angeles