Judge: H. Jay Ford, III, Case: 22SMCV00116, Date: 2022-08-18 Tentative Ruling

Case Number: 22SMCV00116    Hearing Date: August 18, 2022    Dept: O

Case Name:  Harbeck, et al. v. Schwartz, et al.

SUBJECT:                (1)  DEMURRER TO FIRST AMENDED COMPLAINT (FAC)

                                    (2)  MOTION TO STRIKE PORTIONS OF FAC

MOVING PARTY:   Defendants Misti Schwartz, Courtney Schwartz and Kitti Kittiyachavalit

RESP. PARTY:         Plaintiffs Jessica Harbeck and Nicole Harbeck

TENTATIVE RULING

            Defendants Misti Schwartz, Courtney Schwartz and Kitti Kittiyachavalit’s Demurrer to the FAC is OVERRULED as to the 1^st cause of action for violation of the SMMC and SUSTAIEND WITHOUT LEAVE TO AMEND as to the 2^nd cause of action for quiet title.  Defendants’ Motion to Strike is GRANTED as to the portions of the FAC identified in ¶¶1, 2, 8, 12 and 16 of the Notice of Motion to Strike, DENIED as to the portions of the FAC identified in ¶¶3-7, 9-11, 13-15, 26 and 27 of the Notice of Motion and MOOT as to the portions of the FAC identified in ¶¶17-25 of the Notice of Motion.  Defendants to answer in 20 days. 

I.  Parties’ Stipulation

Parties stipulated that Defendants would not demur to the FAC in exchange for Plaintiffs’ dismissal with prejudice of the nuisance claim.  Plaintiffs did not file a formal dismissal with prejudice of the nuisance claim and instead omitted the nuisance claim from the FAC.  Omission of the nuisance claim against Defendants from the FAC was the equivalent of a request for dismissal of the nuisance cause of action without prejudice.  See e.g. Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal.App.3d 943, 947 (omission of defendant in amended complaint as equivalent to dismissal of defendant without prejudice).  Because Plaintiffs failed to dismiss the nuisance claim with prejudice, and are now threatening to reassert that claim, Plaintiff’s objection to Defendants’ demurrer based on the stipulation is overruled.

II.  2^nd cause of action for quiet title—SUSTAIN W/O LEAVE

            Plaintiffs voluntarily withdraw the quiet title claim.  The demurrer is therefore sustained without leave to amend as to the 2^nd cause of action for quiet title. 

III. 1^st cause of action for operation of illegal vacation rental—OVERRULED

            Plaintiffs’ 1^st cause of action for operation of illegal vacation rental is based on SMMC 6.20.030, which states that “No person shall undertake, maintain, authorize, aid, facilitate or advertise any vacation rental or any home-sharing....”  See FAC, ¶23.  A vacation rental is defined as, “Renting for a period of thirty consecutive days or less any dwelling unit, in whole or in part, for exclusive transient use.  Exclusive transient use shall mean that no eligible resident of the dwelling unit lives on site, in the dwelling unit, throughout any visitor’s stay.”  See FAC, ¶25. 

Plaintiffs allege that Schwartz Defendants do not reside in Unit A but continue to rent it from Defendant Kittiyachavalit.  See FAC, ¶9.  Plaintiffs allege that Schwartz Defendants have rented Unit A out for a period of 30 days or less.  See FAC, ¶¶13-14, 21.  Plaintiffs allege they have advertised the unit on Airbnb.com, a site that advertises short term vacation rentals.  Id. at ¶12.  Plaintiffs sufficiently allege violation of SMMC 6.20.030. Moreover, Plaintiff’s compliance with the Chapter would be an affirmative defense to Plaintiff’s claims that the vacation rental violates SMMC 6.20.030.  Defendants fail to establish that such a defense is apparent from the complaint.

Finally, Defendants argue Plaintiffs’ FAC is a sham pleading because Plaintiffs omitted the exhibits attached to the original complaint.  Under the sham pleading doctrine, “the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.”  Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.

Plaintiffs’ prior exhibits are not inconsistent with Plaintiffs’ FAC.  Exhibit 1 to the original complaint is Defendants’ alleged advertisement on Airbnb.com.  See Original Complaint, Ex. 1.  Exhibit 2 is a receipt for a 30-day rental of Unit D from 11-14-20 through 12-14-20.  Id. at Ex. 2.  Exhibit 3 is a sublease between Schwartz Defendants and nonparties Aidan Gold and Elana Dickman for the period from 10-4-20 thorugh 1-4-21.  Id. at Ex. 3.  None of these exhibits are inconsistent with Plaintiffs’ allegation that Defendants have been using Unit A as an illegal vacation rental, i.e. 30 days or less.  Exhibit 3 establishes that the unit was subleased for a period greater than 30 days from 10-4-20 throught 1-4-21, but it does not establish that Defendants never used Unit A as an illegal vacation rental.  Plaintiffs’ omission of these exhibits from the FAC is therefore not a sham amendment. 

IV.  Defendant Kitti Kittiyachavalit 

            Defendants argue that the only allegation against Defendant Kittiyachavalit is that he facilitated Schwartz Defendants violation of the SMMC. However, Plaintiffs explicitly allege that he “aided and abetted” Schwartz Defendants.  See FAC, ¶17.  Defendants do not challenge the legal sufficiency of Plaintiffs’ aiding and abetting allegations. 

V.  Motion to Strike

            Plaintiffs admit there is no requirement that they exhaust administrative remedies before filing a lawsuit for violation of SMMC §6.20.030.  The motion to strike Plaintiffs’ allegation identified in ¶1 of the Notice of Motion to Strike is GRANTED. 

            Plaintiffs’ allegation of Defendants’ residential address is irrelevant for purposes of pleading a violation of SMMC §6.20.030.  “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  CCP §431.10.  At best, Defendants’ address is an evidentiary fact immaterial to the complaint.  To survive a demurrer, “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.  The motion to strike Plaintiffs’ allegations identified in ¶¶2 and 8 of the Notice of Motion to Strike is GRANTED. 

            Defendants’ Motion to Strike is DENIED as to those portions of the FAC identified in ¶¶3-7, 9-11, 13-15 of the Notice of Motion to Strike. These allegations pertain to Defendants’ violations of SMMC and are not irrelevant or improper. 

            Defendants’ Motion to Strike is GRANTED as to those portions of the FAC identified in ¶¶12 and 16 of the Notice of Motion to Strike.  These footnotes allege evidentiary facts or opinions that are immaterial to pleading the essential elements of the 1^st cause of action. 

            Defendants’ Motion to Strike the portions of the FAC identified in ¶¶17-25 of the Notice of Motion to Strike is MOOT.  These paragraphs are part of the quiet title cause of action.  Demurrer is sustained without leave to amend as to 2^nd cause of action for quiet title. 

            Defendants’ Motion to Strike the portion of the prayer for relief identified in ¶¶26-27 of the Notice of Motion to Strike is DENIED.  The request for any available statutory penalties, damages and joint and several liability for daily damages is not improper.  Plaintiffs are merely request such damages to the extent available.