Judge Gail Killefer, Case Number: 23STCV01372, Date: 2024-01-09 Tentative Ruling

TENTATIVE: Defendant’s Demurrer is sustained with 10 days leave to amend. Defendant’s Motion to Strike is granted with 10 days leave to amend. The court sets a Non-Appearance OSC Re: Amended Complaint for January 26, 2024, at 8:30 a.m., and continues the Case Management Conference to March 28, 2024, at 8:30 a.m. Defendant to give notice.

On January 23, 2023, Elizabeth Opiyo (the “Plaintiff”) in pro per, filed a Complaint against New Venture, Inc. (the “Defendant”). This case arises from a landlord tenant dispute involving four properties located in Los Angeles, California.

The operative First Amended Complaint (“FAC”), filed June 20, 2023, alleges eleven causes of action: (1) Breach of Contract, (2) Trespass, (3) Fraud, (4) Deceit, (5) Rescission, (6) Lock Out, (7) Invasion of Privacy, (8) Battery, (9) Security Deposit, (10) Conversion, and (11) Wrongful Eviction.

On September 20, 2023, Defendant filed a Demurrer with Motion to Strike. No opposition or reply has been submitted. The matter is now before the court.

Discussion

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.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Defendant demurrers to Plaintiff’s FAC on the grounds that the causes of action fail to state sufficient facts to constitute any cause of action and are uncertain. (CCP § 4230.10(e), (f).)

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.) Furthermore, “the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452. at 458-59 citing CCP § 430.10(g).) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Id. at p. 459 [internal citations omitted].)

In the first cause of action, Plaintiff alleges that Defendant leased real property at four locations, 1823, 1823 ½, 1821, 1821 2/2 S. New England St., Los Angeles (the “Premises”) to Plaintiff as a residence. (FAC at Attachment 1.) Although the FAC states a copy of the written lease for $23,700 per month for 12 months, set to expire on July 14, 2023, is attached, there is no attachment. The FAC alleges that Defendant breached the lease by revoking authorization for short-term rentals and home-sharing, not correcting problems with the bathroom shower glass doors, and refusing to participate in COVID relief fund distribution, whereby Plaintiff could recover money sought in small claims action, causing Plaintiff to suffer $750,000.00 in damages. (FAC at Attachment 1.) Plaintiff also states that despite being in pro per, Plaintiff is entitled to attorney’s fees. (Ibid.)

The court agrees that without a copy of the contract or without the terms of the contract provision that were violated being set out verbatim in the body of the complaint, Plaintiff only plead conclusory allegations insufficient to put Defendant on notice as to what provision of the lease were violated. “If the action is based on alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.”¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 308.) Alternatively, “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)¿¿“[A]ll essential elements of a breach of contract cause of action[] must be pleaded with specificity.”¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.) The FAC also fails to state how the fact that the “[s]hower glass door in 5 bathrooms were off-track” and that the “ guest shower had makeshift curtain” violated certain provisions of the Lease and material breached. (FAC at Attachment 1.) Moreover, Plaintiff fails to explain how the revocation of the short-term rentals and home-sharing resulted in $750,000 in damages. (Ibid.)

Accordingly, the demurrer to the first cause of action is sustained with leave to amend.

“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 Complaint alleges that Defendant and agents committed a trespass on May 19, 2023, by unlawfully entering the Premises, removing Plaintiff’s belongings, and changing the locks. (FAC at Attachment 1.)

The court finds that Plaintiff fails to allege they had ownership and control of the Premises at the time the trespass occurred. Plaintiff also fails to allege facts as to how Plaintiff knew that the person who trespassed was an agent of Defendant.

Therefore, the demurrer to the second cause of action is sustained with leave to amend.

“The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage.’”

(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [citations omitted].) To plead a cause of action for fraud, Plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Charnay v. Cobert (2006) 145 Cal. App.4th 170, 184.) In Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, the California Supreme Court addressed the requirement that “fraud must be pled specifically; general and conclusory allegations do not suffice.”

The FAC alleges that due to the landlord-tenant relationship, Defendant owed Plaintiff a duty to inform Plaintiff of all material defective conditions of the premises, but at the time of signing the lease, on or about July 15, 2022, no disclosures occurred. (FAC at Attachment 2.) This led to Plaintiff renting the premises and pay top dollar, forgoing better alternative rentals. (Ibid.) Had the information not been concealed, Plaintiff would not have rented the Premises. (Ibid.) Information withheld from Plaintiff includes the fact that Defendant told Plaintiff the premises were authorized to have short-term rentals for home sharing, inducing Plaintiff to lease two more units. (Ibid.) But short-term rentals were not permitted, and this meant Plaintiff lost business due to being unable to use the premises for professional services such as Airbnb rentals and Booking.com. These misrepresentations were done by Defendant’s agent in person, by phone, and by electronic transmission and induced Plaintiff to rent the premises. (Ibid.)

Plaintiff fails to state with specificity what material defective conditions existed on the Premises and when Plaintiff discovered said conditions. The court also agrees that the FAC fails to state who the Defendant’s agent was and how and when they told Plaintiff that the lease permitted short-term rentals. Moreover, the FAC fails to state how Plaintiff knew the agent had the authority to speak on behalf of Defendant. Plaintiff also fails to state facts to show that Defendant knew that at the time the representation about the short-term rental being permitted was made, Defendant knew the representation was false,

Therefore, the demurrer to the third and fourth causes of action is sustained with leave to amend.

The grounds for rescission and for how parties may rescind a contract are governed by statute. (See generally, Civ. Code § 1689.) “A rescission is enforced by a civil action for relief based on rescission (Civ. Code, § 1692) or by asserting rescission as a defense. [Citation.]” (Southern Ins. Co. v. Workers' Comp. Appeals Bd. (2017) 11 Cal.App.5th 961, 963–964.)

The FAC alleges that due to the Defendant’s misrepresentations about the Premises being able to be used for home sharing, the contract is subject to rescission. (FAC at Attachment 3.) The court agrees that because Plaintiff’s fraud causes of action are insufficiently pled and the fifth cause of action relies on the allegations, Plaintiff has failed to show she is entitled to rescission.

(a) 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 residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.

(b) In addition, 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, except when done pursuant to the procedure set forth in Chapter 5 (commencing with Section 1980) of Title 5 of Part 4 of Division 3.

(2) An amount not to exceed one hundred dollars ($100) for each day or part thereof the landlord remains in violation of this section. In determining the amount of such award, the court shall consider proof of such matters as justice may require; however, in no event shall less than two hundred fifty dollars ($250) be awarded for each separate cause of action. Subsequent or repeated violations, which are not committed contemporaneously with the initial violation, shall be treated as separate causes of action and shall be subject to a separate award of damages.

The FAC alleges on May 19, 2023, Defendant unlawfully entered Plaintiff’s residence, removed Plaintiff’s belongings, and changed the lock, thus Defendant violating Civil Code § 789.3. (FAC at Attachment 3.)

The court agrees that Plaintiff failed to allege the fact that Defendant “acted with the intent to terminate the occupancy” when Plaintiff’s personal property was removed, and the locks changed. The court disagrees with the proposition that Plaintiff must allege that Defendant terminated utility services to allege a violation of Civ. Code § 789.3 to have occurred.

“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39–40.)

The FAC alleges that Plaintiff has a reasonable expectation of privacy as to the interior of the rental unit and the financial and legal tenancy details. (FAC at Attachment 3.) The FAC alleges that on May 19, 2023, Defendant invaded Plaintiff’s privacy by unlawfully entering Plaintiff’s residence and handling her personal belongings, physically removing Plaintiff’s guests and subtenant from the residence, and putting up security cameras. (Ibid.)

The court agrees that the FAC fails to allege facts that establish a legally protected privacy interest in the interior of the rental unit or that Defendant’s alleged conduct constituted a serious invasion of that interest. Plaintiff fails to oppose the Demurrer or cite any case law to support the proposition that when Defendant’s agent entered the residence to remove her belongings, guests, and subtenants, this consisted of a serious invasion of a protected privacy interest.

Therefore, the demurrer to the seventh cause of action is sustained with leave to amend.

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

The FAC alleges that on May 19, 2023, Defendant intentionally made harmful or offensive physical contact with Plaintiff, without Plaintiff’s consent, causing Plaintiff injury and harm in the sum of $750,000.00 (Fac at Attachment 4.) Specifically, Defendant intentionally pushed the door into Plaintiff’s face when Plaintiff tried to remove her belongings and Defendant pushed her body. (Ibid.)

The Defendant is an entity that can only act through its agents. (See Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1392.) Therefore, Defendant may only be held vicariously liable for its agent’s torts. The eighth cause of action makes no mention of an agent or the fact that the Defendant can be held vicariously liable.

Therefore, the demurrer to the eighth cause of action is sustained with leave to amend.

Civil Code § 1950.5(g)(1) states in the relevant part, “[n]o later than 21 calendar days after the tenant has vacated the premises . . . the landlord . . . shall return any remaining portion of the security to the tenant.”

The FAC alleges that Plaintiff furnished a $47,400.00 security deposit and Defendant failed to timely refund the full deposit and in bad faith made deductions to the security deposit. (FAC at Attachment 5.) Defendant asserts that Plaintiff failed to state when Plaintiff vacated the premises, making it impossible to determine the relevant 21-day deadline for the return of the security deposit. The court also agrees that Plaintiff fails to state that they were entitled to any portion of the deposit, specifically that Plaintiff left the premises in as clean as condition as when Plaintiff took position or that Plaintiff did not default in payment of rent upon vacating the premises.

Accordingly, the demurrer to the ninth cause of action is sustained with leave to amend.

To plead a cause of action for conversion, one must allege: (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp.(2007) 148 Cal.App.4th 97, 119.)

The FAC alleges that on May 19, 2023, Defendant abused access to the premises and stole that property. (FAC at Attachment 6.) Plaintiff requested the return of the property and timely paid the daily rent value of the unit stored on the Premises, but Defendant failed and refused to return the property. (Ibid.) “Defendant interfered with the possession of Plaintiff’s belongings for 8 days, which included a mattress, cutlery, linens, towels, wall-hangings, dresser, bikes, trash cans, basketball hoop, and boxes of personal private papers and belongings.” (Ibid.)

Defendant argues that because Plaintiff regained possession of her items, there was no “disposition of the property.” However, the court disagrees with the said proposition and Defendant fails to cite any case law to support the proposition that when the property is returned, the tort of conversion is excused. However, the court agrees that Plaintiff failed to state who allegedly interfered with Plaintiff’s possession of her personal property, as Defendant is an entity that can only act through its agents.

Therefore, the demurrer to the tenth cause of action is sustained with leave to amend.

‘[A] landowner cannot interfere with his tenant's possession or enjoyment by allowing others to enter upon the land. [Citation.]’ [Citation.] A residential tenant has a ‘right to recover damages for deprivation of peaceful possession occasioned by a succession of [a landlord's] wrongful acts’ that result in constructive eviction. [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 307.) “ ‘A constructive eviction occurs when the acts or omissions . . . of a landlord, or any disturbance or interference with the tenant's possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or which has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.’ ” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 925–926.)

The FAC alleges that Plaintiff had peaceful possession of the premises until May 19, 2023, when Defendant wrongfully evicted Plaintiff and caused Plaintiff damages of $750,000.00. (FAC at Attachment 7.) 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.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) “It is settled law that a pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) Conclusory allegations, without facts to support them, are ambiguous and uncertain. (Ibid.)

The court finds that Plaintiff’s eleventh cause of action is conclusory and devoid of facts to support a cause of action for wrongful eviction. Therefore, the demurrer to the eleventh cause of action is sustained with leave to amend.

· Pg. 2, Paragraph 9: “As to punitive damages, the culpable acts were so extreme, outrageous, despicable, and reprehensible that decent citizens should not have to tolerate it.”

· Pg. 2, Paragraph 10(C): “Attorney’s Fees [Mix v. Tumanjan] (2) According to proof”

· Pg. 3: “The agreement includes and (sic) attorney fees provision and Plaintiff is entitled to an award of such actual attorney fees as are incurred under Mix v. Tumanjan, notwithstanding being in pro per.”

· Pg. 3: “Plaintiff is entitled to punitive damages due to fraudulent, malicious and oppressive nature of Defendant’s trespass.”

· Pg. 4: “Plaintiff is entitled to punitive damages against Defendant due to the fraudulent nature of that conduct.”

· Pg. 5: “Plaintiff is entitled to punitive damages based upon the malicious nature of the lockout to deny Plaintiff Due Process.”

· Pg. 6: “Plaintiff is entitled to punitive damages due to the malicious nature of the invasion, particularly over Plaintiff’s objection to Defendants misconduct and the inherent wrongfulness of that invasion, intended to harm Plaintiff.”

· Pg. 6: “Plaintiff is entitled to punitive damages due to the malicious nature of the battery, and the intent to cause harm.”

· Pg. 8: “As the Defendant stole the property out of malice, Plaintiff is also entitled to punitive damages.”

· Pg. 9: “Plaintiff is entitled to punitive damages due to the fraudulent and malicious conduct described above, and that: Defendant illegally ousted Plaintiff by means of force, foregoing the judicial process and instead doing an illegal lockout despite being informed of Plaintiffs intent of non-abandonment.”

The court agrees that because the demurrer to Plaintiff’s FAC was sustained, Plaintiff fails to show she is entitled to punitive damages. When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b).) Moreover, the FAC is silent as to who was the Defendant’s agent and whether they were an officer, director, or managing agent of the Defendant.

Secondly, Plaintiff is representing herself and is not entitled to attorney’s fees. (See Troupe v. Katz (1995) 11 Cal.4th 274; Musaelian v. Adams (2009) 45 Cal.4th 512, 517;

Leiper v. Gallegos (2021) 69 Cal.App.5th 284, 297 [“a prevailing pro se party is entitled to seek costs excluding attorney fees under Code of Civil Procedure sections 1032 and 1033.5”].)

Defendant’s Demurrer is sustained with leave to amend. Defendant’s Motion to Strike is granted with leave to amend.

[1] Defense counsel attests that he sent a meet and confer letter to Plaintiff, but no response has been received. (Carpenter Decl. ¶¶ 2, 4, Ex. A.) “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.