Judge: Joel L. Lofton, Case: 23AHCV01210, Date: 2023-11-01 Tentative Ruling

Case Number: 23AHCV01210    Hearing Date: November 1, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      November 1, 2023                                          TRIAL DATE: No date set.

CASE:                         GILBERT ORTEGON v. ROGER CAPITAL MANAGEMENT; RYAN MARTINETZ.

CASE NO.:                 23AHCV01210

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendants Rogerson Capital and Ryan Martinentz (“Defendants”)

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed July 19, 2023

RELIEF REQUESTED

             Defendants demurrer to Plaintiff’s entire complaint.

BACKGROUND

             This case arises out of Plaintiff Gilbert Ortegon’s (“Plaintiff”) claim that Defendants improperly terminated his rental of a storage unit located at 421 S. Raymond Avenue in Pasadena. Plaintiff filed this complaint alleging nine causes of action for (1) wrongful eviction, (2) unfair business practice, (3) breach of implied covenant of good faith and fair dealing, (4) physical, psychological, and financial abuse of a disabled elder person, (5) unfair fraudulent business practice, (6) intentional infliction of emotional distress, (7) declaratory relief, and (8) injunctive relief.

TENTATIVE RULING

            Defendants’ demurrer to Plaintiff’s complaint is SUSTAINED with leave to amend.

            Defendants’ motion to strike is DENIED as moot.

LEGAL STANDARD

Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty 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.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  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, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)   

DISCUSSION

            Defendants demurrer to each cause of action listed in the caption of Plaintiff’s complaint. Plaintiff’s complaint alleges one set of facts that purportedly establishes the basis for each cause of action. Plaintiff alleges that he rented storage units on January 2, 2021, and June 4, 2021. Plaintiff alleges that he paid his bills on time, but Defendants terminated the agreement on April 26, 2023.

            As a preliminary note, California Rules of Court, Rule 2.112 requires that each cause of action separate state its number, nature, the parties asserting it, and the party to whom it is directed to. Plaintiff’s complaint does not comply with California Rules of Court Rule 2.112.

            Civil Code section 1940.2 prohibits landlords from taking certain actions to influence a tenant to vacate a dwelling. Civil Code section 1940, subdivision (c), defines “dwelling unit”. Here, Plaintiff does not allege that the storage unit was a dwelling unit or that Defendants acted to remove him from a dwelling unit. There is no basis for Plaintiff’s first cause of action for wrongful eviction. Defendants’ demurrer to Plaintiff’s first cause of action is sustained.

            “ ‘By proscribing “any unlawful” business practice, “[Business and Professions Code] section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices” that the [UCL] makes independently actionable.’ [Citation.] ‘An unlawful business practice under [Business and Professions Code] section 17200 is “ ‘an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. [Citation.]’ ” ’ ” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1361.) Here, Plaintiff only alleges that he called Defendants’ corporate office and told them that their actions were unfair, abusive, fraudulent, and unjustified. Plaintiff fails to allege facts sufficient to allege a cause of action for unfair business practice. Further, Plaintiff’s fifth cause of action for “unfair fraudulent business practices” also fails. Defendants’ demurrer to Plaintiff’s second and fifth causes of action is sustained.

            Plaintiff’s third cause of action is for a breach of the covenant of good faith and fair dealing. “Under California law, every contract includes an implied covenant of good faith and fair dealing.” (Prager University v. Google LLC (2022) 85 Cal.App.5th 1022, 1039.) The covenant “exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.) Plaintiff does not allege that Defendants breached the contract or frustrated his rights to receive the benefits of the agreement. Defendants’ demurrer to Plaintiff’s third cause of action is sustained.

            Plaintiff’s claim for elder abuse also fails. “The Elder Abuse Act's heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with ‘recklessness, oppression, fraud, or malice.’ ” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.) “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (“Carter”.) “In order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789.) Here, Plaintiff alleges no facts to allege a claim that he was the victim of elder abuse. Defendants’ demurrer to Plaintiff’s fourth cause of action for elder abuse is sustained.

            “ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” ’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) Plaintiff’s complaint does not allege any of the elements to state a claim for intentional infliction of emotional distress. Defendants’ demurrer to Plaintiff’s sixth cause of action is sustained.

            Plaintiff’s seventh and eighth causes of action fail. “To qualify for declaratory relief under section 1060, plaintiffs were required to show their action (as refined on appeal) presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.’ ” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.) “A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the ‘interim harm’ to that party if an injunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if the ... injunction is issued.’ [citation.]” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183.) Here, Plaintiff does not state the basis for declaratory or injunctive relief. Defendants’ demurrer to Plaintiff’s seventh and eighth causes of action is sustained.

CONCLUSION

Defendants’ demurrer to Plaintiff’s complaint is SUSTAINED with leave 20 days to amend.

            Defendants’ motion to strike is DENIED as moot.

            Moving Party to provide notice.

Dated:   November 1, 2023                                         ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court