Judge: Gregory Keosian, Case: 23STCV02613, Date: 2023-10-17 Tentative Ruling

Case Number: 23STCV02613    Hearing Date: October 17, 2023    Dept: 61

Defendants Steaven Jones Development Company and Glencoe Avenue Associates LLC’s Demurrer and Motion to Strike Portions of the Complaint is SUSTAINED as to the second cause of action for breach of contract alleged against Steaven Jones Development Company, and is otherwise OVERRULED and DENIED.

I.                   DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants Steaven Jones Development Company and Glencoe Avenue Associates LLC (Defendants) demurrer to the first cause of action under the Consumer Legal Remedies Act (CLRA) for failure to comply with the Act’s notice provisions and on the grounds that the Act does not apply to residential leases. (Demurrer at p. 5.) Defendants also argue that the Complaint does not attach the contract upon which the claim for breach of contract is based. (Demurrer at pp. 7–9.)

“The CLRA declares unlawful a variety of “unfair methods of competition and unfair or deceptive acts or practices” used in the sale or lease of goods or services to a consumer.” (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1556.) The Act defines “goods” to mean the following:

tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not they are severable from the real property.

(Civ. Code § 1761, subd. (a).) Services, meanwhile are defined as “work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.” (Civ. Code § 1761, subd. (b).)

Defendants argue that a residential lease is neither a tangible chattel nor a service, but an interest in real property not subject to the CLRA. (Demurrer at p. 5.)

While Defendants are correct that a residential lease is not a “tangible chattel,” and is construed only with difficulty as a “service” under the CLRA, Plaintiff persuasively argues in opposition that residential landlords may be liable under the CLRA for unfair or deceptive practices in the delivery of goods or services that they undertake pursuant to a lease — such as internet services. (Opposition at p. 3.) Even if delivery of the rented premises is itself not a service, Defendants may be liable under the CLRA for promising to provide free internet services, and then reneging on the deal after the tenant moves in, as the Complaint alleges here. (Complaint ¶¶ 26, 28.)

The CLRA also requires a plaintiff to “[n]otify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770,” and to demand that the violations be cured. (Civ. Code § 1782, subd. (a)(1), (2).) The notice must be in writing and sent by certified or registered mail, return receipt requested. (Civ. Code § 1782, subd. (a).) Here, although Defendants argue that the Complaint does not allege notice (Demurrer at p. 5), the Complaint in fact alleges written notice under Civil Code § 1782. (Complaint ¶¶ 44–45.) Accordingly, the demurrer to the first cause of action is OVERRULED.

Defendants next argue that the second cause of action fails to attach the rental contract at issue, which would reveal that Defendants are not parties to the contract. (Demurrer at pp. 7–9; Exh. 1 [lease agreement].)

Defendants’ arguments as to the omission of the contract are unpersuasive. Generally, a plaintiff pleading breach of contract must either attach a copy to the complaint, state its terms verbatim, or plead its legal effect. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401–02.) Plaintiff here alleges the legal effect of the contract by describing the relevant terms that Defendants are alleged to have breached. (Complaint ¶¶ 18–29, 50.)

However, Defendants’ arguments as to being parties to the contract is partly correct. Although the contract attached to Defendants’ demurrer[1] unambiguously lists Defendant Glencoe Avenue Associates, LLC as the signing landlord, it lists Defendant Steaven Jones Development Company only as the broker and property manager, and explicitly excludes the company as a party to the contract. (Demurrer Exh. 1, §§ 41, 45, 50.) Although the Complaint includes alter ego allegations as to Steaven Jones, these allegations consist of the conclusory attestation that Steaven Jones controls Glencoe Avenue Associates, and it would be inequitable to recognize their corporate separateness. (Complaint ¶ 10.) There are no allegations of the facts or factors that would justify coming to these conclusions. (See Misik v. D'Arco (2011) 197 Cal.App.4th 1065, 1073 [describing factors encompassing a unity of interest for alter ego purposes].)

The demurrer is therefore SUSTAINED as to the second cause of action for breach of contract against Steaven Jones Development Company, and is otherwise OVERRULED.

II.                MOTION TO STRIKE

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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike Plaintiff’s prayer for attorney fees on the grounds that self-represented litigants, such as Plaintiff, may not recover fees for their self-representation. (See Trope v. Katz (1995) 11 Cal.4^th 274, 292.) However, although pro per parties cannot seek attorney fees for work performed on their own behalf, Plaintiff need not proceed throughout this case without representation, and may be entitled to attorney fees if representation is obtained and such fees are actually incurred. The court cannot conclude at this juncture that such fees will not be incurred.

The motion to strike is therefore DENIED.