Judge: Frank M. Tavelman, Case: 23BBCV01647, Date: 2024-02-02 Tentative Ruling

Case Number: 23BBCV01647    Hearing Date: February 2, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

MP:     Burlington Beverly LLC, Olive Apartments LLC, and Drake Real Estate Group, Inc. (Defendants)

RP:     Linda Granero and Emily Aceves (Plaintiffs)

NOTICE:

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:

Linda Granero and Emily Aceves, by and through her guardian ad litem Linda Granero (Plaintiffs) bring this action against Burlington Beverly LLC, Olive Apartments LLC, and Drake Real Estate Group, Inc. (collectively “Defendants”). Plaintiffs alleges Defendants wrongfully served a 60-day Notice to Quit the property they rented at 1300-1304 West Olive Avenue, Burbank, CA 91506. Plaintiffs allege the 60-day Notice to Quit stated the Defendants were terminating Plaintiffs’ tenancy based on an “intent to demolish or substantially remodel the residential real property” pursuant to Cal. Civil Code section 1946.2(b)(2)(D). (Compl. ¶ 19.) Plaintiffs allege Defendants did not have a good-faith intent to demolish the building at the time the notice was served. Plaintiffs allege they have suffered damages by virtue of seeking alternative housing after the notice was posted.

The Court notes that there is no allegation of an unlawful detainer filing in the Complaint. Defendants indicate in their demurrer that this is because Defendants inadvertently accepted rent from Plaintiffs after the notice was served. (See Dem. p. 10.) Plaintiffs do not dispute that the notice was void by acceptance of rent. (See Oppo. p. 7-8.)

Plaintiffs’ Complaint contains 9 causes of action for (1) Violation of Unfair Competition Law, (2) Declaratory Relief, (3) Intentional Misrepresentation, (4) Violation of County Antiharassment Ordinance, (5) Violation of Civil Code § 1940.2 6. Retaliation, (7) Negligent Misrepresentation, (8) Breach of Covenant of Quiet Enjoyment, and (9) Breach of Implied Covenant of Good Faith and Fair Dealing.

Defendants now demur to each of Plaintiffs’ causes of action. Defendants also move to strike Plaintiffs’ requests for punitive damages in connection with Plaintiffs’ cause of action for Negligent Misrepresentation. Plaintiffs oppose and Defendants reply.

JUDICIAL NOTICE & OBJECTIONS:

Plaintiffs request the Court take judicial notice of the Complaint in The People of the State of California v. Green Valley Corporation, Case No. 23CV417467, filed June 13, 2023, pursuant to Evidence Code § 452. The Court notes that Plaintiffs have not attached a copy of this document and have not separately briefed the relevance of this document to the instant motion. As such, the Court denies the request.

As the Court declines to grant Plaintiffs’ request for judicial notice, Defendants’ objection to its notice is MOOT.

Defendants request the Court take judicial notice of the statutory language of Civil Code § 1946.2(b)(2)(D), both as it is currently instated and as it will be amended on April 1, 2024. This request is GRANTED.

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. (Rosenbaum Decl. ¶¶ 4-5.)

III.              MERITS

Demurrer

As a preliminary matter, the Court addresses Defendants’ demurrer on grounds that Plaintiffs’ causes of action are barred by the litigation privilege.

Defendants argue that Plaintiffs’ Complaint is barred because it is solely based on the 60-day Notice to Quit served on April 15, 2023. (Compl. ¶ 18.) Defendants argue they issued their 60-day Notice to Quit pursuant to Civil Code § 1946.2(b) which governs the no-fault just cause conditions for termination of tenancy after continuous and lawful occupation. Civil Code § 1946.2(b)(2)(D) establishes that “[i]ntent to demolish or to substantially remodel the residential real property” serves as a valid no-fault just cause for termination of residential residency.

Plaintiffs argue their Complaint alleges Defendants lacked the good-faith intent to demolish the property. Plaintiffs argue these allegations allow the Complaint to survive a demurrer based on the litigation privilege, as the determination of whether the notice was issued in good faith is a question of fact pursuant to Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232

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 is useful to our analysis here insofar as it 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 Feldman 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.

In opposition, Plaintiff argues that Court of Appeals in Ulkarim v. Westfield LLC declined to follow the rule in Feldman. Plaintiff argues that Ulkarim creates a distinction between a cause of action based on the “termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.) 

The Court first notes that Ulkarim concerned an anti-SLAPP motion. The plaintiff in Ulkarim was a commercial tenant of the defendant. (Id. at 1270.) The parties had a commercial tenancy agreement which included the terms under which termination could be sought. (Id.) The defendant served a notice of termination upon plaintiff followed by an unlawful detainer action. The plaintiff subsequently brought an action for breach of the contract, among others (Id. at 1271.) Some of the plaintiff’s causes of action were based on the unlawful detainer action, while others spoke to the notice of termination. (Id.) The defendant sought to strike the entire action as an anti-SLAPP suit, which the trial court granted. (Id.)

On review the Court of Appeals was concerned with whether plaintiff’s causes of action the notice of termination “arose from” the filing of the unlawful detainer action, which was already determined to be protected activity. (Id. at 1275.) The Court examined numerous anti-SLAPP opinions, including Feldman, and declined to hold that a notice of termination always “arises from” the protected activity of filing an unlawful detainer action. The Ulkarim court held “The lesson we learn from this line of authority is that a tenant's complaint against a landlord filed after the service of a notice of termination and the filing of a complaint for unlawful detainer does not arise from those particular activities if the gravamen of the tenant's complaint challenges the decision to terminate the tenancy or other conduct in connection with the termination apart from the service of a notice of termination or filing of an unlawful detainer complaint.” (Id. at 1279.) The court ultimately held that the causes of action speaking to the notice of termination should not be struck because they spoke to an alleged bad-faith termination of the business contract which stood separate from the unlawful detainer action. (Id. at 1281.)

Here, unlike Feldman and unlike Ulkarim, there is no unlawful detainer action. Plaintiffs’ Complaint is based entirely on the 60-day Notice to Quit. Also, unlike Ulkarim, this case does not concern commercial tenancy. The 60-day Notice to Quit in this case and the notice of termination in Ulkarim are not equivalent. A notice of termination based on the conditions of a commercial tenancy contract is subject to interpretation and the principles of bad faith generally applicable in contract law. In contrast, the 60-day Notice to Quit in this case was served in accordance with Civil Code § 1946.2. The statute outlines the legal requirements for service of a notice to quit for a no-fault cause, including where a landlord intends to demolish or substantially remodel the residential real property. The law only requires the landlord state this intent in the notice, it does not require this intent be the only motivation and it does not require the landlord to evidence affirmative steps toward a demolish/remodel.

Here, Defendants served the notice stating their intent pursuant to the law. Afterward, Defendants inadvertently accepted rent from Plaintiffs such that the notice became ineffective, and Defendants could not pursue an unlawful detainer action. Plaintiffs’ allegations that Defendants lacked good faith in announcing their intent to demolish the residence does not remove the 60-day Notice to Quit from the purview of Civil Code § 1946.2(d).

The Court finds that Plaintiffs’ causes of action, insofar as they are based on the filing of the 60-day Notice to Quit, are barred as a matter of law by the litigation privilege. However, this does not mean that Plaintiffs cannot state any cause of action against Defendants. It could be that Plaintiffs may state causes of action against Defendants for actions external to the notice. Plaintiffs Complaint hints at such actions in paragraph 35 which alleges Defendants engaged in conduct such as issuing notices restricting the use/enjoyment of the common areas and mandating overly restrictive and arbitrary aesthetic conditions in Plaintiffs’ apartment, such as a prohibition on visible items on interior windowsills and restricting access to housing services, including parking, at the Property for multiple consecutive days. The Court finds these allegations may be sufficient to sustain some of Plaintiffs’ causes of action, but as currently stated they too conclusory and it is unclear as to which cause of action these violations speak.

Accordingly, the demurrer to Plaintiffs’ Complaint is SUSTAINED with 20 days’ leave to amend.

Motion to Strike

Defendants 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

Burlington Beverly LLC, Olive Apartments LLC, and Drake Real Estate Group, Inc.’s Demurrer and Motion to Strike came on regularly for hearing on February 2, 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 IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE PLAINTIFFS’ REQUEST FOR PUNITIVE DAMAGES IS MOOT.

THIS MATTER HAS BEEN TRANSFERRED TO ALHAMBRA, DEPT. V EFFECTIVE JANUARY 5, 2024.  A CASE MANAGEMENT CONFERENCE WILL BE SET FOR APRIL 9, 2024 AT 8:30 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  February 2, 2024                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles