Judge Holly J. Fujie, Case 20STCV45298 2022-08-19 Tentative Ruling

MOVING PARTY: Defendants Parkview on the Park, LP (“Parkview”), EAH Community Housing, Inc. (“EAH”), and Susanna Serobyan (“Serobyan”) (collectively, “Moving Defendants”)

The Court has considered the moving, opposition, and reply papers. After Moving Defendants filed their reply brief (the “Reply”), Plaintiff filed a response to the reply. The Court finds that this filing constitutes a surreply which is not expressly authorized under California Code of Civil Procedure (“CCP”) or California Rules of Court (“CRC”). (See CCP § 1005; CRC, r. 3.113(d).) The Court exercises its discretion and declines to consider Plaintiff’s surreply. (See Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 703.)

This action arises out of a landlord/tenant relationship. The currently operative first amended complaint (the “FAC”) alleges: (1) assault; (2) personal injury; (3) negligence; (4) fraud; (5) tampering with evidence; (6) destroying evidence; (7) discrimination; (8) conflicts of interest; (9) breach of contract; (10) property damage; (11) severe emotional distress; and (12) harassment.

Moving Defendants filed a demurrer to the FAC (the “Demurrer”) on the grounds that the FAC: (1) is uncertain, ambiguous and unintelligible; and (2) fails to state facts sufficient to constitute causes of action against Moving Defendants.

A substantial portion of Plaintiff’s opposition (the “Opposition”) is directed at Moving Defendants’ Request for Judicial Notice (“RJN”) and the facts set forth in the Declaration of Nicole Fassonaki (“Fassonaki Decl.”) regarding Moving Defendant’s meet and confer efforts, both of which Plaintiff contends are indicative of Moving Defendants’ bad faith. Before addressing the substantive arguments raised by the Demurrer, the Court will address Plaintiff’s concerns about the RJN and Fassonaki Declaration.

In determining the sufficiency of a complaint against demurrer a court will consider matters that may be judicially noticed. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) A court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, records of: (1) any court of this state; or (2) any court of record of the United States or of any state of the United States, and facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452 subds. (c), (d), (h).)

Moving Defendants ask that the Court take judicial notice of: (1) Plaintiff’s original complaint (the “Complaint”); and (2) the currently operative FAC. The Court disagrees with Plaintiff’s contentions in the Opposition that Moving Defendants’ RJN constitutes fraud or casts into doubt which iteration of Plaintiff’s pleadings the Demurrer challenges. The Demurrer and RJN are both dated March 28, 2022, which corresponds with the date of their filing. The Demurrer and accompanying papers clearly indicate that the FAC is the pleading being challenged. The Exhibits in the RJN are official court records and the dates written on the documents reflect the date of their original filing. Moving Defendants’ access to the original Complaint is not indicative of an intent to defraud Plaintiff. It is irrelevant whether Moving Defendants were served with the original Complaint, as the pleading is a public document in the Court’s record. The Complaint and FAC are both court records as defined by Evidence Code section 452, subdivision (d). The Court therefore GRANTS Moving Defendants’ RJN.

Before filing a demurrer, the demurring party must meet and confer with the party who filed the challenged pleading in person or by telephone to determine if the demurring party's objections can be resolved by agreement. (CCP § 430.41, subd. (a).) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (CCP § 430.41, subd. (a)(1).) The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. (Id.) The parties shall meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41, subd. (a)(2).) The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) the means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer; or (B) that 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. (CCP § 430.41, subd. (a)(3)(A)-(B).) 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; Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355.)

On March 23, 2022, Moving Defendants’ counsel spoke with Plaintiff on the phone about the identified deficiencies in the FAC. (Fassonaki Decl. ¶ 5.) Plaintiff did not agree to amend the FAC at the time Fassonaki spoke to her. (Id.)

As provided in the Fassonaki Declaration, Moving Defendants engaged in meet and confer efforts with Plaintiffs at least five days before they filed the Demurrer. Plaintiff contends that the Fassonaki Declaration misrepresents the meet and confer efforts in furtherance of Moving Defendants’ ongoing efforts to commit fraud against her because Plaintiff indicated to them that she would file an amended pleading after they filed the Demurrer so that she could frame any amendments in reference to Moving Defendants’ arguments regarding the sufficiency of the allegations in the FAC. Plaintiff also suggests she was waiting for additional clarification regarding the proper format for pleadings and court filings.

First, Plaintiff’s Opposition fails to set forth evidence to substantiate these arguments, as she did not file a declaration in support of the Opposition. In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)[1] Regardless, the information presented in the Opposition is not inconsistent with what was stated in the Fassonaki Declaration, as both provide that Plaintiff did not agree to amend the FAC prior to the filing of the Demurrer. The Court finds that the meet and confer requirement has been met.

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 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. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822

A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint. (CCP § 430.40, subd. (a).) Service of the FAC on Moving Defendants was effectuated on February 25, 2022. They therefore had 30 days after this date to file the Demurrer. (See CCP § 430.40, subd. (a).) March 27, 2022 was 30 days after February 25, 2022. Since March 27, 2022 was a Sunday, the deadline for Moving Defendants to file the Demurrer was March 28, 2022. (See CCP § 13.) The Demurrer was therefore timely. Nor, as Plaintiff suggests, was default entered against Moving Defendants. Plaintiff’s requests to enter Moving Defendants’ defaults were denied, in part, because they had responded to the FAC by filing the Demurrer.

The FAC is 94 pages long. The first seven pages are handwritten on unlined paper. The remainder of the FAC, which is unpaginated, appears to consist of various documents submitted as exhibits to the FAC. From what the Court can tell, the first four pages of the handwritten body of the FAC consist of descriptions of these documents. The documents, however, are not labeled and there are no tabs or dividers that allow a reader to readily differentiate where one exhibit ends and another begins.

From what the Court can surmise from the facts pleaded in the handwritten portion of the FAC, the FAC alleges that Plaintiff’s tenancy with Moving Defendants began on April 13, 2018. (FAC p. 1.) At some point during the tenancy, Plaintiff’s groceries were stolen and Moving Defendants failed to adequately respond to Plaintiff’s complaints about the theft. At some point, Moving Defendants improperly increased Plaintiff’s rent. Serobyan, who is the manager of Parkview and EAH, assaulted Plaintiff and on November 13, 2020, Plaintiff spoke with police officers about this incident. (See FAC p. 4:1-5.) Plaintiff also experienced habitability issues during her tenancy. (See FAC 4:28.)

Although demurrers for uncertainty are disfavored, the Court finds that the FAC was properly challenged on this ground. First, it is unclear which causes of action are alleged against which Defendant. Second, the organization of the FAC and its extensive reliance on exhibits the descriptions of which are not always clear, severely impacts Moving Defendants’ ability to adequately respond to the allegations. This issue is exacerbated because the attached documents are not labeled or differentiated. In contrast to the sprawling exhibits, the handwritten allegations are densely compacted into seven unlined pages, single-spaced. The lack of spacing negatively affects the legibility of the FAC.

Furthermore, the FAC alleges causes of action which are not recognized as independent causes of action, including the personal injury, tampering with evidence, destroying evidence, conflicts of interest, severe emotional distress, and property damage causes of action. The Court further notes that harassment and discrimination claims are statutory causes of action and the FAC does not allege a statutory basis for the claims.

The Court finds that the FAC is uncertain to a degree that prevents Moving Defendants from meaningfully assessing or responding to the claims alleged against them. The Court therefore SUSTAINS the Demurrer with 20 days leave to amend.

While not requiring it, the Court suggests that an amended pleading filed by Plaintiff be typed and otherwise formatted in conformity with CRC, rules 2.100-2.119. If Plaintiff is unable to file a typed pleading, the Court highly recommends that any handwritten documents be written on lined paper, be double spaced, and comply with the above CRC rules to the extent possible. The Court notes, however, that if the other major problems with the pleading of valid claims noted above are not corrected in the Second Amended Complaint and demurrers thereto are sustained, the Court will consider sustaining without leave to amend those claims that do not appear to be correctable so as to state a valid cause of action.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] Likewise, the Court has not considered points concerning the meet and confer efforts raised in Moving Defendants’ reply brief (the “Reply”) that are unsupported by the Fassonaki Declaration filed with the Demurrer.