Judge Gail Killefer, Case 22STCV23378 2023-03-09 Tentative Ruling

MOVING PARTIES: Defendants, Joel S. Moorvitch, Victoria Moorvitch, 1646 South Holt LLC

TENTATIVE: Defendants’ demurrer is sustained. Plaintiff is only granted leave to amend as to the seventh, eighth, and ninth causes of action. Defendants are to give notice.

This landlord/tenant action arises out of a lease by Brad Axelrod (“Plaintiff”) of real property located at 1646-1646 ½ South Holt Avenue, Los Angeles, California (the “Property”). Plaintiff alleges the lease was for an illegal dwelling. Plaintiff alleges he was induced by Defendants into executing a lease agreement for the Property on July 9, 2015. Plaintiff further alleges Defendants violated the Los Angeles Rent Stabilization Ordinance (“RSO’), continued to collect rents from Plaintiff, refused to pay Plaintiff relocation fees under the RSO, failed to accommodate his disabilities, and caused him emotional distress as a result.

Plaintiff’s Complaint alleges nine causes of action: (1) violation of LAMC §§ 151.05(A) and 151.10(A); (2) violation of LAMC § 151.09(G); (3) failure to engage in good faith interactive process in violation of FEHA; (4) violation of Los Angeles County Code Title 8, division 3, chapter 8.52, §§ 130 and 170; (5) violation of LAMC Chapter IV, Article 5.3, § 45.35; (6) violation of Civil Code § 1927, breach of implied covenant of quiet enjoyment; (7) violation of Business & Professions Code §§ 17200, et seq.; (8) negligent infliction of emotional distress; and (9) intentional infliction of emotional distress.

On November 22, 2022, Defendants’ demurrer was sustained without leave as to the fourth cause of action, and Plaintiff was granted leave to amend the first, second, seventh, eighth, and ninth causes of action.

On December 22, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges nine causes of action: (1) violation of LAMC §§ 151.05(A) and 151.10(A); (2) violation of LAMC § 151.09(G); (3) failure to engage in good faith interactive process in violation of FEHA; (4) violation of Civil Code § 1940.2; (5) violation of LAMC Chapter IV, Article 5.3, § 45.35; (6) violation of Civil Code § 1927, breach of implied covenant of quiet enjoyment; (7) violation of Business & Professions Code §§ 17200, et seq.; (8) negligent infliction of emotional distress; and (9) intentional infliction of emotional distress.

Defendants now demur to first, second, third, fourth, seventh, eighth, and ninth causes of action of the FAC. Plaintiff opposes the motion.

Defendants request that the court take judicial notice of the following in support of their demurrer:

1. Plaintiff’s California State Bar status as a licensed attorney (Exhibit 1);

2. Plaintiff’s status as a licensed real estate broker by the California Department of Real Estate (Exhibit 2);

3. That on May 11, 2010, the City of Los Angeles issued a Certificate of Occupancy with APN 4303-030-010 stating as follows: “CONVERT ONE STORY TYPE V 22’ X23.3’ GARAGE TO HABITABLE SPACE AND ADD 20.2’ X18’ CARPORT TO CONNECT TWO SINGLE FAMILY DWELLINGS CREATING A DUPLEX.”, (Exhibit 3);

4. That the Worklog Section of the of the Los Angeles for APN 4303030010 Los Angeles Housing Department contains an entry dated August 15, 2018 for Case # 678660 stating as follows: “Research concluded that the garage was a permitted conversion.” “There are no other violations.” “This case is being closed.” (Exhibit 4);

5. That the Worklog Section of the of the Los Angeles for APN 4303030010 Los Angeles Housing Department contains an entry dated September 1, 2021 for Case # 791695 that states as follows: “… Complainant alleges that he's living in a garage, per C of O 01014-30001- 04407 - Convert 1 story 22x23 Garage to habitable space, add 20x18 carport to connect two SFD, creating a duplex.” (Exhibit 4);

6. That the Worklog Section of the of the Los Angeles for APN 4303030010 Los Angeles Housing Department contains an entry dated October 1, 2021 for Case # 791695 that states as follows: “01014-10000-04407 - Permit Finaled 5/4/2010. GARAGE AREA OF 475 S.F. CONVERTED TO HABITABLE AREA ON 1ST FLOOR OF REAR DWELLING UNIT. INTERIOR REMODEL TO COMPLY WITH TYPE V SHEET. CONNECTION OF CARPORT BETWEEN BLDGS CONVERTS TWO UNITS INTO DUPLEX. CONSTRUCT A NEW DETACHED 20' X 18' CARPORT PER CITY STANDARD DETAILS.” (Exhibit 4);

7. The following language from the RSO Determination made by the Regulatory Compliance & Code Bureau of the HCIDLA: 1 SFD (1646) IS subject to RSO effective 1995 based on pre-1978 construction coupled with addition of second detached SFD (1646 1/2), which is NOT subject to RSO based on post-1978 construction. /// Original SFD (1646) constructed under Permit No. 1926LA23176 issued 8/11/1926. Garage converted to SFD (1646 1/2) under Permit No. 1985LA24788 issued 11/15/1985. Note: Plot plan reflects a new 1 one car garage was added. (Exhibit 5);

8. The following language from the September 18, 2014 Letter from the Regulatory Compliance & Code Bureau of the Los Angeles Housing & Community Investment Department (HCIDLA): "Ordinance 160791 which amended L.A.M.C. Section 151.02, on the definition of rental units, provides that buildings constructed before the issuance of certificates of occupancy are not exempt from the Rent Stabilization Ordinance. Please note that it is the date of construction of the structure containing the dwelling unit(s) which is relevant to the determination of whether or not it is subject to the RSO. Our research, including a review of available public records, indicates that this property contains multiple dwellings, one of which was constructed prior to October 1, 1978. The single family dwelling was constructed under permit 1926LA23176 issued 8/11/1926. Therefore, the single family dwelling is subject to all of the provisions of the RSO. However, the detached single family dwelling which was constructed under permit 1985LA24788 issued on 11/15/1985 is not subject to the RSO." (Exhibit 6).

Defendants’ request is granted. However, the court does not grant judicial notice of the reasoning or analysis of any documents, but only notices that such documents have been produced at their specific time and date. The court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Defendants again demur to the first cause of action for violations of the RSO on the ground that Plaintiff’s dwelling was issued a Certificate of Occupancy after October 1, 1978, such that the RSO does not apply. (Demurrer, 5; LAMC § 151.02; Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4^th 659, 766.) The second cause of action is premised on the failure to pay relocation fees. Defendants again also demur to the second cause of action on the ground that relocation fees are due only when the landlord seeks to repossess the premises (LAMC § 151.09A(11)), and as the RSO again does not apply. (Dem., 5-6.) Defendants’ RJN No. 7-8 specifically show the Property, specifically Plaintiff’s dwelling, was issued a certificate of occupancy on November 15, 1985.

In opposition, Plaintiff again contends that Defendants did not “acquire the legally required C of O for Axelrod’s dwelling unit, thus the unit is illegal.” (Opposition, 5.) Plaintiff again points to an alleged determination by the HCIDLA that the “Property can only be lawfully used as a two-dwelling-unit complex.” (Id.) Plaintiff further contends that the HCIDLA’s inspector allegedly incorrectly concluded Plaintiff’s dwelling was in the same unit as the remainder of one of the units on the Property, which are separated as a result of a “permanently locked door.” (Opp., 6-7.) Plaintiff further contends the RSO applies again because the dwelling was not given a certificate of occupancy. (Opp., 7-8.)

In reply, Defendants again correctly point to judicially noticed exhibits to contend a Certificate of Occupancy for the converted garage Plaintiff occupies in was issued in 2010. (Reply, 2.) Defendants also point to an “RSO Determination” made by the City of Los Angeles, which concludes the garage dwelling does not fall under the RSO. (Reply, 2-3; RJN Nos. 3, 7-8.)

The court again finds Plaintiff’s first and second causes of action to be insufficiently pled as the Complaint fails to explain how the garage dwelling of the Property which Plaintiff inhabited falls under the authority of the RSO, while only having received a Certificate of Occupancy in 2010.

For these reasons, Defendants’ demurrer to the first and second causes of action is sustained without leave to amend.

Government Code § 12940(n) requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) Generally, “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.]” (Ibid.) To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." (Scotch v. Art Institute of California (2009) 173 Cal. App. 4th 986,1018-1019.)

“[t]he FAC does not allege Plaintiff ever requested a reasonable accommodation for such a disability, the nature of such request, what reasonable accommodation could have been made, or how plaintiff was harmed by the alleged failure to engage in the interactive process. In fact, the only ‘accommodation’ the FAC references is plaintiff's request for safety bars before a surgery [see FAC, 30], which does not relate at all to his alleged mental disability.” (Dem., 6-7.)

Defendants further correctly point out this claim “relates to the interactive process in the employment context.” (Dem., 6, n.6.)

In opposition, Plaintiff only contends that the original Complaint and the operative FAC include identical claims for the third cause of action, and Defendants’ failure to demur to the third cause of action to the Complaint now forecloses their opportunity to demur to the third cause of action here. (Opp., 11.)

In reply, Defendants correctly explain that the “FAC adds numerous allegations about plaintiff’s alleged anxiety and depression... allegations incorporated into the third cause of action for failure to engage in the interactive process.” (Reply, 3-4.) The court agrees.

The court therefore finds the third cause of action to be insufficiently pled as the FAC fails to identify what request was made, what accommodations were possible, and what damages Plaintiff sustained as a result of Defendants’ alleged failure. Further, the FAC fails to explain how a FEHA claim in the employment context applies here, to a housing dispute between the parties.

For these reasons, Defendants’ demurrer to the third cause of action is sustained.

Defendants contend the fourth cause of action of the FAC is insufficiently pled as it “exceeds the scope of the Court’s order sustaining Demurrer.” (Dem., 7-8.) Defendants correctly contend this court sustained “defendants’ demurrer without leave to amend as to plaintiff’s fourth cause of action for violation of the County Code. Plaintiff had no permission to add a completely new claim for violation of the Civil Code, which is outside the scope of the Court’s order.” (Id.; citing Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023; Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

The court agrees. This court’s prior order sustained Defendants’ demurrer to the fourth cause of action without leave to amend, and only granted leave to amend for the first, second, seventh, eighth, and ninth causes of action of the Complaint. This court did not grant Plaintiff leave to amend his Complaint entirely. As such, Plaintiff’s amendment exceeds the scope of this court’s prior ruling.

For these reasons, Defendants’ demurrer to the fourth cause of action is sustained without leave to amend.

D. Seventh Cause of Action: Violation of Business and Professions Code § 17200

Business & Professions Code § 17200 (“UCL”) prohibits “unfair competition,” which is defined to include “any unlawful, unfair or fraudulent business act or practice” and “unfair, deceptive, untrue or misleading advertising” and any act prohibited by Business & Professions Code § 17500. That section prohibits false or misleading statements in connection with the disposal of property or performance of services. A cause of action under the UCL must be stated with “reasonable particularity.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261.)

The UCL prohibits: (1) unlawful conduct; (2) unfair business acts or practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or misleading advertising; and (5) any act prohibited under sections 17500-77.5.¿ UCL actions based on “unlawful” conduct may be based on violations of other statutes.¿ (See¿Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)

Defendants again contend that the seventh cause of action is insufficiently pled as it is based on the first and second causes of action. (Demurrer, 8.)

The court finds the seventh cause of action insufficiently pled. Specifically, the court has already again found the RSO does not apply to the Property, and Plaintiff’s seventh cause of action is derivative of the RSO violation claims. Thus, the Complaint is devoid of allegations regarding the application of the RSO and any unlawful or unfair business practices. Thus, the Complaint’s allegations are insufficient.

For these reasons, Defendants’ demurrer to the seventh cause of action is sustained.

Negligent infliction of emotional distress (“NIED”) is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) As with any cause of action for negligence, the traditional elements of duty, breach of duty, causation and damages apply. (Ess v. Eskaton Props. (2002) 97 Cal.App.4th 120, 126.)

Defendants again contend that the eighth cause of action is insufficiently pled as it fails to include allegations of fact regarding any “serious emotional distress” Plaintiff suffered. (Demurrer, 8-9.) Defendants contend allegations of emotional distress only include conclusory contentions which should not be taken as true for the purposes of this demurrer. (Id.)

“Paragraph 90 conclusorily [sic] explains that ‘[e]motional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary reasonable person would be unable to cope with it,’ and asserts that ‘[d]efendants have exacerbated plaintiff's pre-existing anxiety and depression,’ but offers no facts explaining how.” (Id.)

In opposition, Plaintiff again contends the court should not transform into a trier of fact for the purposes of this demurrer inquiry, and requests leave to amend if the court finds the cause of action to be insufficiently pled. (Opp., 13.)

In reply, Defendants correctly explain the FAC “pleads no facts supporting a claim plaintiff has suffered serious emotional distress” and “plaintiff... cannot direct the Court to any such facts in the FAC.” (Reply, 4-5.) The court agrees.

As discussed above, the court finds the eighth cause of action insufficiently pled as Plaintiff again alleges no facts regarding the serious emotional distress he has suffered.

For these reasons, Defendants’ demurrer to the eighth cause of action is sustained.

The elements of a claim for intentional infliction of emotional distress (“IIED”) are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (Christensen).)

Under California law, for conduct to be “outrageous” it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Ess v. Eskaton Props., Inc. (2002) 97 Cal.App.4th 120, 130.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

Defendants again contend the ninth cause of action is insufficiently pled as it fails to include sufficient facts regarding the serious emotional distress Plaintiff has suffered. (Dem., 9-10.)

“93. Axelrod suffered severe emotional distress because of Defendants’ conduct.

95. Defendants’ conduct was a substantial factor in causing Axelrod’s severe emotional distress. In fact, Defendants have exacerbated Axelrod’s pre-existing anxiety and depression by: (i) removing of his kitchen facilities; (ii) refusing to remediate the raw sewage back-up in his Illegal Dwelling; (iii) constant surveillance; and (iv) other acts intended to force Axelrod to vacate the Illegal Dwelling. Axelrod now has no choice except to take Cymbalta to treat his emotional distress. Further, Axelrod’s post heart attack physical health has been seriously jeopardized due to his 40-pound weight gain resulting from the loss of the kitchen facilities forcing him to eat take out and restaurant food.” (FAC, ¶¶93-95.)

As this court has already found the NIED claim again to be insufficiently pled, the court also finds the ninth cause of action insufficiently pled. Plaintiff’s opposition fails to point to any factual allegations made in the FAC regarding the severe emotional distress Plaintiff allegedly suffered. (Opp., 13-14.) As such, Plaintiff has again failed to allege sufficient facts to state a claim for IIED.

For these reasons, Defendants’ demurrer to the ninth cause of action is sustained.

Defendants’ demurrer is sustained. Plaintiff is only granted leave to amend as to the seventh, eighth, and ninth causes of action. Defendants are to give notice.

[1] Defendants submit the declaration of Gary Ganchrow (“Ganchrow”) to demonstrate compliance with statutory meet and confer requirements. Ganchrow attests that on January 23, 2023, he met and conferred with Plaintiff’s counsel by telephone regarding the arguments raised in the demurrer. (Ganchrow Decl. ¶ 2.) They were unable to reach a resolution. (Id.) The Ganchrow Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.