Judge Gail Killefer, Case Number: 19STCV20927, Date: 2023-10-20 Tentative Ruling

TENTATIVE: Defendants’ demurrer to the first cause of action is sustained without leave to amend and overruled as to the second, third, and fourth causes of action.

This action arises in connection with real property located at 3712 E. 6^th Street, Los Angeles, California (the “Property”). Norma Rodriguez (“Plaintiff”) alleges that she is the sole owner of the Property, and that Reyes Rodriguez, Patricia Rodriguez and Eloisa Rodriguez (“Defendants”) are her siblings.

According to the Complaint, Defendants took their mother, Josefina Rodriguez, to an attorney to draft a living trust in mid-January 2016. Plaintiff was not initially aware of the trust documents that were created behind her back. Plaintiff alleges that she got into verbal and physical altercations with Defendants on multiple occasions over the next several months. Plaintiff alleges that she suffered depression, headaches, and other injuries because of Defendants’ harassment.

Plaintiff’s Complaint alleges six causes of action: (1) damage to residential real property, (2) vandalism, (3) malicious prosecution, (4) declaratory relief, (5) intentional infliction of emotional distress, (6) defamation.

On December 10, 2021, the court granted Defendants’ request for leave to file a Cross-Complaint. On December 16, 2023, Defendant and Cross-Complainant Reyes Rodriguez filed a Cross-Complaint alleging four causes of action: (1) malicious prosecution, (2) defamation, (3) Infliction of emotional distress, and (4) declaratory relief.

On June 8, 2023, the parties filed a Stipulation in which they agreed that Plaintiff would dismiss all claims other than those for damages to Residential Real Property and Vandalism, and Defendants would dismiss their Crossclaim.

On June 9, 2023, Plaintiff filed a First Amended Complaint alleging four causes of action: (1) negligence, (2) trespass to chattels, (3) willful trespass, and (4) breach of contract.

On July 10, 2023, Defendants filed a demurrer. Plaintiff filed opposing papers on October 13, 2023. Defendants filed a reply on October 18, 2023.

Discussion

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

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 complainant to show the Court that a pleading can be amended successfully. (Id.)

Defendants demur to the FAC on the grounds that Plaintiff did not seek to leave to amend and that the FAC fails to state a cause of action.

Defendants assert that the parties stipulated that Plaintiff would dismiss all but two causes of action from the original complaint and that Plaintiff, without leave of court, added two new causes of action. A plaintiff may not amend the complaint to add a new cause of action without having obtained permission from the court to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

Here, the parties' Stipulation and Order stated that Plaintiff would dismiss all claims in the complaint apart from Plaintiff’s property damage claims. All but three causes of action in the FAC relate to Plaintiff’s alleged property damage, including damages to residential real property and vandalism.

The court finds that Plaintiff’s amendments are valid as to the second, third, and fourth causes of action because the claims are within the scope of the parties’ stipulation. However, as Plaintiff’s first cause of action for negligence seeks damages not related to property damage, the demurrer to the first cause of action is sustained without leave to amend. (See Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456 [permitting dismissal of claim that was added without leave of court].)

On reply, Defendants also raised the point that Plaintiff’s negligence claim is time-barred as the FAC gives June 19, 2016, as the latest possible date for the negligence claim. As the Complaint was filed on June 17, 2019, more than three years past the two-year statute of limitations outlined in CCP § 335.1, the court agrees that the first cause of action is time barred.

“[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property ‘not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.’ (Citation.)” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350.) In an action for trespass to chattels, plaintiffs may recover “only the actual damages suffered by reason of the impairment of the property or the loss of its use.” (Zaslow v. Kroener (1946) 29 Cal.2d 541.)

Defendants demur to the second cause of action on the basis that the FAC mentions “cabinets, doors, windows,” which are considered fixtures, not chattel. (Civ. Code, § 660.) The second cause of action also states that “photos and all other items that can be proven at the time of trial” were personal property that Defendants intentionally damaged. (FAC ¶¶ 42, 43.) Therefore, trespass to chattel, in the form of photographs, is alleged.

Defendants also assert that Defendant Patricia Rodriguez had possession of the property at the time that the trespass to chattels occurred. The FAC alleges that the unlawful detainer action was filed on April 21, 2016, and on May 19, 2016, Defendant Patricia Rodriguez and her daughter signed a Stipulation and Order in which they agreed to move out by midnight on June 18, 2016. (FAC ¶¶ 18, 24.) On June 19, 2016, Plaintiff was informed by an eyewitness that Defendants were on the Property. (FAC ¶ 26.)

It is unclear when the Property was damaged. Plaintiff asserts the damage occurred “shortly after” Patricia Rodriguez was to move out, suggesting that Defendants had possession of the property when the alleged trespass to chattels occurred. (FAC ¶ 29.) The fact that Defendants may have had the right to possess the Property does not mean that they had ownership of the alleged photographs, such that there was no trespass. The FAC sufficiently alleges that the ownership of the photographs at all times remained with Plaintiff. (FAC ¶ 42.)

“The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

The court finds the demurrer to the third case of action to be meritless as the FAC states that the parties agreed by stipulation that Defendants would leave the property by midnight on June 18, 2016, and Plaintiff received several phone calls and text messages that Defendants remained on the property on June 19, 2016. (FAC ¶¶ 25, 26.) Defendants fail to cite any case law to show that they retained possession of the property on June 19, 2016, such that the willful trespass cause of action fails.

Moreover, given the extent of the damage alleged, the court does not consider the trespass to be sufficiently de minimis that it deprives the court of jurisdiction. (See Civ. Code, § 3533 [“The law disregards trifles.”].)

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.)

The FAC alleges that on May 18, 2016, Defendant Patricia Rodriguez entered into an unlawful detainer stipulation and judgment with Plaintiff, and that Defendant Patricia Rodriguez breached the stipulation by failing to leave the subject property in broom clean condition at the time she agreed to move out. (FAC ¶¶ 57-59, Ex. A.)

Defendants demur to the fourth cause of action on the basis that Plaintiff has not sued all signatories of the contract. However, Defendants fail to show that all signatories were required to be named as Defendants when only Defendant Rodriguez is alleged to have breached the stipulation.

For the first time on reply, Defendants assert that the unlawful detainer stipulation and judgment specifies the consequences of the failure to vacate the property in a timely manner: that the file is unsealed, and judgment is entered for the amount of back rent. (Reply at p. 3:14-16.) First, the court notes that points raised for the first time in the reply are not considered. (See Moran v. Endres (2006) 135 Cal.App.4th 952, 956.) Secondly, Defendants did not request that this court take judicial notice of the stipulation in the unlawful detainer action. In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Defendants’ demurrer to the first cause of action is sustained without leave to amend and overruled as to the second, third, and fourth causes of action.

[1] Defendants failed to submit a meet and confer declaration showing compliance with CCP § 430.41, the meet and confer requirement. “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP, § 430.41(a)(4).) As the failure to meet and confer does not constitute grounds to overrule a demurrer, the court continues on the merits.