Judge: Helen Zukin, Case: SC125247, Date: 2022-12-06 Tentative Ruling
Case Number: SC125247-01 Hearing Date: December 6, 2022 Dept: 207
Background
Plaintiff Yazmin
Ortiz (“Plaintiff”) brings this action against Defendants Rudy Eisler, Individually
and as Trustee for the Eisler Family Living Trust; Stephen Eisler, Individually
and as Trustee for the Eisler Family 2000 Living Trust; Theresa Eisler,
Individually and as Trustee for the Eisler Family 2000 Living Trust; Wendy
Eisler, Individually and as Trustee for the Eisler Family Living Trust; Eisler
Investments; West End Properties; Robert Sundeen; and Carole Sundeen (collectively
“Defendants”). Plaintiff asserts several causes of action against Defendants
stemming from her former tenancy at a residential property located at 2315 14th
Street, #9 in Santa Monica, California. Plaintiff’s operative complaint is the
First Amended Complaint (“FAC”) filed on December 4, 2017, and asserting 19
causes of action against Defendants, though the Court notes the FAC contains
two causes of action labeled as the tenth cause of action.
Plaintiff’s tenancy
and possession of the subject property was terminated pursuant to an unlawful
detainer action filed in 2015.
On March 12, 2019, Defendants filed an anti-SLAPP motion to
strike Plaintiff’s fifth, sixth, both tenth, twelfth, and sixteenth causes of
action asserted in the FAC. The Court granted the motion as to the fifth, both tenth,
twelfth, and sixteenth causes of action arose from Defendants’ filing of the
unlawful detainer action. As to the sixth cause of action, the Court granted
the motion in part, striking only the allegations in that cause of action which
related to the unlawful detainer action. Plaintiff appealed the Court’s order
granting the motion to strike. The Court of Appeal reversed the trial court’s
ruling in part as to the twelfth cause of action, finding that cause of action
contained allegations which were not subject to an anti-SLAPP motion to strike,
specifically claims that Defendants demanded rent in excess of maximums allowed
under section 1809 of the Santa Monica Charter Amendment. The Court of Appeal
otherwise affirmed the trial court’s ruling in its entirety. Plaintiff then
filed a Petition for Review with the California Supreme Court, which was
denied.
Defendants bring this demurrer to
first, second, third, fourth, sixth, seventh, eighth, ninth, eleventh,
fourteenth, fifteenth, seventeenth, and eighteenth causes of action asserted in
the FAC, arguing they are barred by res judicata, fail to state facts
sufficient to constitute a cause of action, and are uncertain. (C.C.P. §
430.10(e) and (f).) Defendants’ separately move to strike several of
Plaintiff’s claims for damages.
Request for Judicial Notice
Defendants request the Court take judicial notice of
pleadings and court records in the instant matter as well as the previous
unlawful detainer action, as well as Santa Monica’s “Rent Control Charter
Amendment.” Defendants’ request is unopposed and is GRANTED. Plaintiff requests
the Court take judicial notice of various documents including her petition for
review filed with the California Supreme Court in connection with her demurrer
of the Court’s prior ruling on Defendants’ anti-SLAPP motion, records from the
Santa Monica Rent Control office and Los Angeles County Recorder’s Office,
sections of the Santa Monica Rent Control Charter, part of her former lease for
the subject property, and part of the California Civil Code, among other documents.
Defendants object to several of Plaintiffs’ requests, arguing the documents are
irrelevant to the pending demurrer and not properly subject to judicial notice.
The Court GRANTS Plaintiff’s request as to her petition for review, records
from the Santa Monica Rent Control office and Los Angeles County Recorder’s
Office, the Santa Monica Rent Control Charter, the California Civil Code, the
3-day notice to quit from the unlawful detainer action, the complaint in the
unlawful detainer action, and records from the California Secretary of State.
Plaintiff’s request for judicial notice is otherwise DENIED.
Demurrer Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) 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 on the evidence or facts alleged.” (E-Fab, 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.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
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.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be sustained
where the pleading is so unintelligible that a defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. (Khoury v.
Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Motion to Strike Standard
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike 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.
(Id., § 436(b).) The grounds for a
motion to strike are: the pleading has irrelevant, false, or improper matter,
or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id. § 437.)
Analysis
1. Meet
& Confer
The Court finds Defendants have
satisfied their obligation under Code Civ. Proc. § 430.41(a)(3) by submitting a
declaration showing “the party who filed the pleading subject to demurrer
failed to respond to the meet and confer request of the demurring party or
otherwise failed to meet and confer in good faith.” (C.C.P. §430.41(a)(3)(B);
Tatikian Decl. at ¶¶2-8.)
2. Unlawful
Detainer Action
On May 11, 2015, a limited
partnership known as 2315 Associates filed an unlawful detainer action against
Plaintiff seeking to recover possession of a residential property located at
2315 14th Street, Santa Monica, California. The complaint was
subsequently amended twice to correct the name of the plaintiffs bringing the
action. The operative Second Amended Complaint was brought in the name of
Stephen V. Eisler and Theresa A. Eisler as trustees of the Eisler Family 2000
Living Trust and Rudy Eisler and Wendy Lou Eisler as trustees of the Eisler
Living Trust. Each of these plaintiffs in the unlawful detainer action are
Defendants in the instant action.
The unlawful detainer action came
on for trial on December 4, 2015. When the Court denied Plaintiff’s Code Civ.
Proc. § 170.1 challenge to the trial judge as well as her motion to stay the
trial, Plaintiff announced she was going to leave the courtroom to speak to the
supervising judge. The Court cautioned that if she left, the Court would strike
her Answer and the trial would occur without her. Plaintiff left anyway. The
trial judge sent a member of the Sheriff’s Department to locate Plaintiff,
which was unsuccessful. The Court then proceeded with a bench trial on the
unlawful detainer action in Plaintiff’s absence, resulting in the entry of
judgment against her on the unlawful detainer claim on December 4, 2015.
Plaintiff appealed the judgment to
the Appellate Division of the Superior Court. On November 6, 2016, issued an
opinion affirming the judgment. In reaching this result, the Appellate Division
expressly rejected Plaintiff’s contention that the unlawful detainer plaintiffs
“lacked standing because they failed to notify her of a change of ownership
under Civil Code section 1962 and failed to properly register under Santa
Monica Rent Control Charter (SMRCC) section 1803.” (Ex. H to Defendants’ RJN at
4.) The Appellate Division similarly rejected Plaintiff’s argument that the
rent for the subject property had been improperly raised in contravention of
the SMRCC, which Plaintiff alleged invalidated the three-day notice to quit on
which the unlawful detainer action was based. (Id. at 5.)
The Appellate Division also noted that although the trial
Court had cautioned Plaintiff that her Answer would be stricken if she left the
courtroom, “there are no indications in the record that the court actually did
so or that the court entered default against defendant. Instead, the court
proceeded to an uncontested trial on the merits in defendant’s absence, which
is authorized under Code of Civil Procedure section 594, subdivision (a). where
the adverse party has received notice of the trial date and failed to appear
for trial, as defendant did here. We therefore presume that the judgment was in
fact one based on the merits of plaintiffs' evidence presented at the bench
trial conducted in defendant's absence.” (Id.
at 8.) The Appellate Division determined Plaintiff “made an ‘intentional
strategic decision’ to not be present for trial.” (Id. at 9.)
Plaintiff sought review of the
Appellate Division’s opinion by way of a petition for a writ of mandate filed
with the Court of Appeal. Plaintiff’s petition was denied on January 18, 2019.
(Ex. I to Defendants’ RJN.)
3. Res
Judicata
Defendants argue Plaintiff’s
first, second, third, fourth, sixth, seventh, eighth, ninth, eleventh,
fourteenth, fifteenth, seventeenth, and eighteenth causes of action are barred
by the doctrines of res judicata and/or collateral estoppel as they concern
issues and arguments which were previously litigated in the unlawful detainer
action.
The doctrine of res judicata precludes the re-litigation of
certain matters which have been resolved in a prior proceeding under certain
circumstances. (Brinton v. Bankers Pension Services, Inc. (1999) 76
Cal.App.4th 550, 556.) “Res judicata, or claim preclusion, prevents
re-litigation of the same cause of action in a second suit between the same
parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co.
(2002) 28 Cal.4th 888, 896.) “Res judicata applies if (1) the decision in the
prior proceeding is final and on the merits; (2) the present proceeding is on
the same cause of action as the prior proceeding; and (3) the parties in the
present proceeding or parties in privity with them were parties to the prior
proceeding.” (Fed'n of Hillside
& Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202. “The
res judicata effect of an unlawful detainer proceeding is narrow, but is not nonexistent.
Generally speaking, an unlawful detainer judgment has limited res judicata force
because it typically follows a summary proceeding focused only on deciding a party's
right to immediate possession of property.” (Gombiner v. Swartz (2008) 167
Cal.App.4th 1365, 1371.) “The burden of proving that the requirements for application
of res judicata have been met is upon the party seeking to assert it as a bar or
estoppel.” (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.) Because an unlawful
detainer proceeding is summary in nature, it is uncommon for an ensuing judgment
to bar a subsequent adjudication of title for rarely has there been “full and fair”
litigation. (Ibid.)
Defendants argue the claims raised
by Plaintiff’s first, second, third, fourth, sixth, seventh, eighth, ninth,
eleventh, fourteenth, fifteenth, seventeenth, and eighteenth causes of action
were asserted by Plaintiff as affirmative defenses in the unlawful detainer
action and thus were adjudicated on their merits in that action. Plaintiff does
not dispute these claims were asserted as affirmative defenses in the prior
action, rather she argues res judicata is not a proper ground for demurrer. In
support of her argument, Plaintiff cites to Collins v. San Francisco (1952)
112 Cal.App.2d 719, King v. Mortimer (1948) 83 Cal.App.2d 153, and Alisal
Sanitary Dist. v. Kennedy (1960) 180 Cal.App.2d 69. While Plaintiff
correctly cites those cases as holding res judicata is not grounds for demurrer,
the Court notes these cases are more than 60 years old and subsequent Courts
have recognized res judicata may be properly raised by demurrer. (See, e.g., Henry
v. Clifford (1995) 32 Cal.App.4th 315, 320 [“‘If all the facts necessary to
show that an action is barred by res judicata are within the complaint or subject
to judicial notice, a trial court may properly sustain a general demurrer’”]
[quoting Frommhagen v. Board of Supervisors (1987) 197 Cal. App. 3d
1292, 1299]; Boyd v. Freeman (2017) 18 Cal.App.5th 847, 855 [holding res judicata and collateral
estoppel are properly raised as a defense on demurrer].) Indeed, the Court in Needelman
v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750 affirmed the trial
court’s sustaining of a demurrer based on res judicata stemming from a prior
unlawful detainer action. Accordingly, the Court
determines Defendants may properly assert res judicata by demurrer.
Plaintiff next argues she never
presented evidence on any of her affirmative defenses in the unlawful detainer
action and thus they could not have been adjudicated on the merits in that
action. A similar argument was raised and rejected in Needelman. In that
case, the defendants had previously brought an unlawful detainer action against
the plaintiff. The parties reached a settlement in which the plaintiff signed a
stipulated judgment in favor of defendants, and defendants agreed to let
plaintiff remain in the possession of the premises subject to certain
conditions, which, if breached, would allow defendants to file the stipulated
judgment. When plaintiff failed to abide by the conditions of the settlement,
defendants brought a noticed ex parte application for entry of judgment
pursuant to the parties’ stipulation. Plaintiff did not appear at the hearing
and the Court entered judgment in accordance with the stipulation. Plaintiff
appealed the judgment to the Appellate Division of the Superior Court, which
affirmed the trial court. Plaintiff then filed a lawsuit against defendants
asserting “causes of action for negligence,
intentional tort, wrongful eviction, conversion, unfair competition,
intentional and negligent infliction of emotional distress, breach of warranty
of habitability, violation of civil forfeiture laws, and breach of contract.” (Needelman, supra, 239
Cal.App.4th at 755.) Defendants filed a demurrer, arguing all of the causes of
action were barred by res judicata as a result of the judgment in the unlawful
detainer action. The trial court sustained defendants’ demurrer without leave
to amend and plaintiff appealed.
In affirming the trial
court’s ruling on the demurrer, the Needelman Court rejected plaintiff’s
argument “that affirmative defenses can be raised as claims for affirmative
relief in a subsequent action unless they were litigated and he never had an
opportunity to litigate the unlawful detainer action and he did not have a full
and fair hearing on the lessors' claim that he violated the stipulated
agreement.” (Id. at 759.) The Court reasoned
plaintiff’s claims were barred by res judicata because he had the opportunity
to litigate his affirmative defenses and had chosen not to:
Needelman incorrectly claims that he never
had an opportunity to litigate the unlawful detainer action. He appeared in the
unlawful detainer action when he filed his answer. [Citations.] Furthermore, he
had an opportunity to litigate his defenses to the unlawful detainer action; instead,
he decided to settle….
Under California law, a “judgment entered without
contest, by consent or stipulation, is usually as conclusive a merger or bar as
a judgment rendered after trial.” [Citations.] Accordingly, Needelman cannot now
relitigate claims within the scope of the stipulated settlement; claims that could
have been litigated in the unlawful detainer action are now barred. [Citation.]
Similarly, Needelman's claim that he had no
opportunity to oppose the lessors' evidence at the ex parte hearing is inaccurate.
He was given proper notice of the hearing but chose not to attend. Failing to participate
or attend the hearing is not the same as not having an opportunity to litigate.
“The doctrine of res judicata, whether applied as a total bar to further litigation
or as collateral estoppel, ‘rests upon the sound policy of limiting litigation by
preventing a party who has had one fair adversary hearing on an issue from
again drawing it into controversy and subjecting the other party to further expense
in its reexamination.’” [Citation.] Needelman cannot now belatedly attempt to challenge
the evidence at the ex parte hearing, which showed that he violated the stipulation.
(Id. at 759-760.)
Thus, under Needelman, the question is not whether Plaintiff actually
litigated her affirmative defenses in the unlawful detainer action, the
question is whether she had the opportunity to do so.
As set forth
above, Plaintiff does not dispute these claims were raised as affirmative
defenses in the unlawful detainer action, and the record from the unlawful
detainer action and subsequent appeal shows Plaintiff had the opportunity to
litigate those claims at the December 4, 2015, trial in the unlawful detainer
action but instead made the intentional choice to leave the courtroom rather
than do so, having been cautioned beforehand that the trial would proceed
without her if she did so. As in Needelman, Plaintiff was given proper notice
of the trial but chose not to attend. Accordingly, res judicata will bar
subsequent litigation of claims which could have been litigated by Plaintiff at
the trial, regardless of whether she actually participated in the trial or put
on evidence in support of her affirmative defenses.
Plaintiff next
argues res judicata cannot apply because some of her claims are based in part
on conduct which occurred subsequent to the entry of judgment in the unlawful
detainer action. Plaintiff does not identify any such alleged subsequent
conduct which she claims falls beyond the claims raised in the unlawful
detainer matter. The Needelman Court rejected a similar argument.
Plaintiff in Needelman argued five of the ten challenged causes of
action “were based on conduct occurring after entry of the judgment and
concludes that these claims were therefore not related to the unlawful detainer
action.” (Needelman, supra, 239 Cal.App.4th at 758.) The Court
rejected this argument, finding all of the challenged causes of action “were
based on allegations that the lessors included false statements in the
three-day notice in the underlying unlawful detainer action, that they engaged
in wrongful conduct in bringing the unlawful detainer action and in applying
for an ex parte judgment pursuant to the stipulation, and that they damaged or
did not return Needelman's personal property after forcing him to leave the
Greenwich apartment” and thus fell within the claims at issue in the unlawful
detainer action. (Id.) As in Needelman, Plaintiff has made no
showing that any of the causes of action challenged by Defendants are based on
conduct unrelated to or beyond the scope of the issues raised in the unlawful
detainer action. Accordingly, the Court rejects Plaintiff’s argument on this
point.
The Court finds the elements of
res judicata are satisfied with respect to Plaintiff’s first, second, third,
fourth, sixth, seventh, eighth, ninth, eleventh, fourteenth, fifteenth,
seventeenth, and eighteenth causes of action. As set forth above, the judgment
entered in the unlawful detainer action followed a trial on the merits, and
Plaintiff does not dispute these causes of action were raised as affirmative
defenses in the unlawful detainer action, nor does Plaintiff dispute the
parties in the instant action are the same or in privity with the parties to
the unlawful detainer action.
Plaintiff argues res judicata does
not apply because the judgment entered in the unlawful detainer action is void.
Plaintiff claims Defendants violated the Santa Monica Rent Control Charter by
failing to register with the City of Santa Monica and in improperly raising her
rent, and these violations invalidate the 3-day notice to quit which formed the
basis of the unlawful detainer action, which in turn nullifies the judgment.
However, Plaintiff raised these very claims in the unlawful detainer action
itself. Her third affirmative defense in the unlawful detainer action expressly
claims Defendants improperly demanded rent in excess of maximums set by the
City of Santa Monica and failed to properly register the subject property with
the city. (Ex. E to Defendants’ RJN at 2.) The Court thus finds Plaintiff had
the opportunity to raise this argument in the unlawful detainer action and is
barred by res judicata from raising this claim now for the same reasons discussed
above with respect to Plaintiff’s causes of action.
Accordingly, the Court SUSTAINS
Defendants’ demurrer to the Plaintiff’s first, second, third, fourth, sixth,
seventh, eighth, ninth, eleventh, fourteenth, fifteenth, seventeenth, and
eighteenth causes of action. Because these causes of action are barred by the
doctrine of res judicata, the Court sustains the demurrer without leave to
amend. As the Court has sustained the demurrer without leave to amend as to
these causes of action, the Court need not address Defendants’ remaining
arguments on demurrer and declines to do so.
4. Motion to
Strike
Defendants separate move to strike
several claims for damages from the FAC. The Court will address each in turn.
a. Attorney’s Fees
Defendants seek to strike
Plaintiff’s prayer for recovery of attorney’s fees. Defendants argue Plaintiff
is acting in pro per and thus is not entitled to recovery attorney’s fees. The
Court agrees. However, even where a claim for attorneys’ fees is unsupported by
the pleadings, courts are not required to strike such a claim before a
plaintiff has the “opportunity to determine, through discovery, whether a basis
for recovery exists.” (Camenisch v. Superior Court (1996) 44 Cal.App.4th
1689, 1699.) Further, while Plaintiff is currently proceeding as a pro per
litigant, she is not prohibited from obtaining counsel in this action at a
later date. The Court will allow Plaintiff the opportunity to obtain counsel
and conduct discovery to carry her burden of establishing a right to recover
attorneys’ fees from Defendants in this action. Accordingly, the Court declines
to strike Plaintiff’s claim for attorney’s fees at this time on the basis of
her status as a pro per litigant.
b. Punitive Damages
Defendants move to strike certain
of Plaintiff’s claims for punitive damages. The FAC seeks punitive damages in
connection with Plaintiff’s second, fourth, fifth, sixth, seventh, eighth, both
tenth, twelfth, and fourteenth causes of action. With the exception of the
twelfth cause of action, each of these causes of action were either stricken
pursuant to Defendants’ previous anti-SLAPP motion to strike or were subject to
Defendants’ demurrer which was sustained as discussed above and thus cannot
form the basis of a request for punitive damages. Defendants’ motion is thus
GRANTED as to Plaintiff’s claims for punitive damages in connection with these
claims.
Defendants’ motion is silent as to
Plaintiff’s claim for punitive damages in connection with the twelfth cause of
action. The only argument offered by Defendants relevant to the twelfth cause
of action is the claim that the FAC fails to allege actions taken by an
officer, director, or managing agent sufficient to impose punitive damages
against corporate entities Defendants Eisler Investments and West End
Properties. The Court agrees the FAC does not sufficiently allege a basis for
punitive damages against the corporate Defendants with respect to the twelfth
cause of action. Accordingly, the Court GRANTS Defendants’ motion to strike
Plaintiff’s claim for punitive damages against Defendants Eisler Investments
and West End Properties with leave to amend. As to the remaining Defendants,
their request to strike Plaintiff’s claim for punitive damages is otherwise
DENIED.
c. Injunctive
Relief
Defendants move to strike
Plaintiff’s claims for injunctive and declaratory relief, arguing the FAC fails
to set forth any basis for such relief. Plaintiff does not dispute the FAC
fails to sufficiently allege a basis for injunctive or declaratory relief,
rather Plaintiff requests leave to amend the FAC to properly seek such relief.
Accordingly, the Court GRANTS Defendants’ motion to strike this relief with
leave to amend.
d. Treble
Damages and Disgorgement
Defendants seek to strike the
claim for treble damages asserted in Plaintiffs’ third cause of action for
violation of the Unruh Civil Rights Act, as well as Plaintiff’s claim for
disgorgement in connection with the fifteenth cause of action for unlawful
business practices. As the Court has sustained Defendants’ demurrer to these
causes of action without leave to amend, they cannot support claims for treble
damages or disgorgement and Defendants’ motion to strike is GRANTED without
leave to amend as to her claims for treble damages and disgorgement.
Conclusion
Defendants’ demurrer to the
Plaintiff’s first, second, third, fourth, sixth, seventh, eighth, ninth,
eleventh, fourteenth, fifteenth, seventeenth, and eighteenth causes of action
is sustained without leave to amend. Defendants’ motion to strike Plaintiff’s
claim for punitive damages is granted in part and denied in part. The Court
grants Defendants’ motion to strike Plaintiff’s claims for punitive damages in
connection with the exception of Plaintiff’s claim for punitive damages in
connection with the twelfth cause of action. As to the twelfth cause of action,
the motion to strike is granted with 30 days leave to amend as to Defendants
Eisler Investments and West End Properties and denied as to the remaining
defendants. Defendants’ motion to strike Plaintiff’s claim for injunctive relief
is granted with 30 days leave to amend. Defendants’ motion to strike
Plaintiff’s claims for treble damages and disgorgement is granted without leave
to amend.