Judge: H. Jay Ford, III, Case: 24SMCV05465, Date: 2025-04-24 Tentative Ruling

Case Number: 24SMCV05465    Hearing Date: April 24, 2025    Dept: O

 Case Name:  Butakmani et al., v. 8300 De Longpre Villa, et al.

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendants 8300 De Longpre Vila B. LP and Cirrus Asset Management, Inc.

RESP. PARTY:         Plaintiffs Younes Butakmani and Phillip Ponesky  

TENTATIVE RULING

            Defendants 8300 De Longpre Vila B. LP and Cirrus Asset Management, Inc. Demurrer to all causes of action against Plaintiff Phillip Ponesky in the Complaint is OVERRULED. Defendants Demurrer as to the 6^th–8^th causes of action against all Plaintiffs in the Complaint is OVERRULED.

            Defendants’ Motion to Strike is DENIED. Punitive damages may be awarded for invasion of privacy claims and “in an action by a residential tenant based on the landlord's interference with peaceful possession.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) Plaintiffs successfully plead both invasion of privacy and interference with peaceful possession in the Complaint and thus the Court will not strike punitive damages at this time.

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

“Code of Civil Procedure section 452 provides: “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.” This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238, quoting CCP § 452.)

On a demurer “the allegations of the complaint must be read in the light most favorable to the plaintiff.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1557.)

I.                Demurrer to all causes of action for Plaintiff Phillip Ponesky only due to lack of standing —OVERRULED

Defendants 8300 De Longpre Vila B. LP and Cirrus Asset Management, Inc. (collectively “Defendants”) demur to all causes of action as to Plaintiff Philip Ponesky (“Ponesky”) only, for lack of standing to sue related to the conditions of the subject property because the complaint does not allege Ponesky is an intended third-party beneficiary of the lease, nor a party to the lease attached to the complaint. (Demurrer, pp. 6–8.) Defendants cite to Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022 to support their argument, however Spinks discusses a motion for summary judgment regarding an issue of whether a party was intended to be a third-party beneficiary on a lease agreement, and not a demurrer where all allegations in the Complaint must be accepted as true. Addtionally, Spinks does not stand for the proposition that the only method for standing to sue as a tenant is to be an intended third party beneficiary or an actual party to the lease agreement.  

Other methods to allege tenancy include  that a landlord has consented to occupancy and has accepted rent from the alleged tenant. (See Getz v. City of West Hollywood (1991) 233 Cal.App.3d 625, 629 [“A tenancy may be created without a formal agreement, by consent and acceptance of rent.”].)

The Complaint alleges Ponesky “became an occupant” of 8300 De Longpre Ave., West Hollywood, California 90069 (the “Property”) in 4-18-18, and has resided with Plaintiff Younes Butakmani (“Butakmani,” collectively the “Plaintiffs”) at the Property for fifteen years (Compl., ¶¶ 4, 11–13). The Complaint alleges Plaintiffs sought to assert their rights as tenants in administrative hearings before the City of West Hollywood, where the Defendants filed an appeal challenging issues related to the adequacy of repairs, but did not include any challenge to Ponesky’s standing as a tenant. (Compl., ¶¶ 14, 19.) The Complaint further alleges that Defendant gave Plaintiffs keys to another unit in the Property, were obliged to pay Plaintiffs for relocation assistance and that they asked “Plaintiff[s] [sic]” to pay rent while repairs were ongoing. (Complaint ¶20). [the complaint states , Defendants asked the Plaintiff to continue to pay full rent during the time of relocation, despite not having the use of the leased property,” which appears to be a typo since all other allegations state “Plaintiffs” and plaintiffs did not specify which Plaintiff, if the use of the word was intended to be singular]

The alleged facts read as a whole state the existence of an implied oral agreement between Ponesky and Defendants as a tenant in the Property. Additionally, the allegations show that Defendants consented to Ponesky’s tenancy in the Property by not challenging Ponesky’s tenancy in the appeal, and through Defendants alleged relocation actions. Thus, the Complaint adequately states Ponesky’s standing as a tenant in the Property.

Defendants’ demurrer to all causes of action as to Ponesky only for lack of standing is OVERRULED.

II.             Demurrer to the 6^th cause of action for violation of civ. Code § 1942.5

“The retaliatory eviction doctrine is founded on the premise that “(a) landlord may normally evict a tenant for any reason or for no reason at all, but he may not evict for an improper reason ....” (Barela v. Superior Court (1981) 30 Cal.3d 244, 249.)

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

. . . .

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

In each instance, the 180-day period shall run from the latest applicable date referred to in paragraphs (1) to (5), inclusive.

(Civ. Code, § 1942.5, subd. (a).)

However, Cal. Civ. Code., § 1942.5(d) states the following:

(d) Notwithstanding subdivision (a), it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor's conduct was, in fact, retaliatory.

(Civ. Code, § 1942.5, subd. (d).)

Defendants argue that Plaintiffs violation of Civ. Code 1942.5 fails because Plaintiffs plead they failed to pay rent on or around 9-29-23, and Defendants waited the appropriate statutory time before filing a notice to quit on 12-6-23. (Compl., ¶¶ 20, 51.)

However, Defendants fail to address the application of section 1942.5(d), only referencing subdivision (a) in their arguments, and also arguments related to subdivision (a) cannot be resolved at the pleading stage. It is the Plaintiffs burden to show Defendant’s retaliatory motive, but this evidentiary burden cannot be resolved at this stage based on the allegations in the compliant.

Additionally, whether or not the Plaintiffs were obligated to pay rent during the relevant time periods is a matter of fact and cannot be resolved at this time. (See Green v. Superior Court (1974) 10 Cal.3d 616, 634 [“the tenant's duty to pay rent is “mutually dependent” upon the landlord's fulfillment of his implied warranty of habitability”],)

Plaintiffs have successfully plead a claim for retaliatory eviction under Civ. Code., § 1942.5 and thus Defendants’ Demurrer to the 6^th cause of action is OVERRULED.

III.           Demurrer to the 7^th cause of action for invasion of privacy and 8^th cause of action for Conversion due to Plaintiffs consent—OVERRULED

"The common law tort of invasion of privacy by intrusion has two elements: (1) intrusion into a private place, conversation, or matter, (2) in a manner highly offensive to a reasonable person." (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1163.)

“Conversion is the wrongful exercise of dominion over the property of another.  The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.  It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 441, 451-452.)

Defendants argue that the 7^th (invasion of privacy) and 8^th (conversion) causes of action fail because Plaintiffs allege that Plaintiffs gave consent for Defendants to hire contractors to enter Plaintiffs’ apartment and perform repairs, and further that Plaintiffs do not allege that Defendants ratified or approved of any video recording performed by third-party contractors. (Demurrer, pp. 9­–10; see Compl., ¶¶ 14, 20, 23, 56.)

Defendants do not provide any authority to support their argument that Plaintiffs must plead Defendants ratified the conduct of the alleged worker who videotaped the Plaintiffs. Furthermore, the Complaint does not allege that Plaintiffs consented to Defendants’ “unlicensed contractors unlawfully removing and destroying all of Plaintiffs’ flooring, the kitchen, bathrooms, fixtures, and other personal belongings in the unit,” nor “removing and demolishing all of Plaintiffs’ flooring, kitchen, bathrooms, fixtures, and other personal belongings in the unit,” nor the “video recording the Plaintiffs while in their home.” (See Compl., ¶¶ 55, 56, 60, 61.)

Additionally, whether Plaintiffs’ consented to Defendants entering their home for repair work cannot be resolved at this stage, as these are factual finding arguments. Overall, Plaintiffs do no expressly plead consent to the alleged removal and destruction of Plaintiffs personal property, and thus Defendants’ argument fails

Defendants Demurrer to the 7^th and 8^th causes of action are OVERRULED.