Judge: Joseph Lipner, Case: 22STCV20991, Date: 2023-10-19 Tentative Ruling

Case Number: 22STCV20991    Hearing Date: January 16, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiffs Jaime Scherer and Scott Potter (collectively, “Plaintiffs”) demur to Defendant Zaki Mansour’s amended answer (the “Answer”) to Plaintiffs’ first amended complaint (the “FAC”).

The Court OVERRULES Plaintiffs’ demurrer.

Background

This action concerns a residential lease.  Under the lease, Plaintiffs were tenants of the property owned by Defendants located at 5429 Virginia Avenue, Apartment 308, Los Angeles, California 90029 (the “Property”).

Plaintiffs filed this action on June 27, 2022. The operative complaint is not the FAC, which raises claims for (1) violation of California Civil Code section 1942.4; (2) tortious breach of the warranty of habitability; (3) private nuisance; (4) violation of Business and Professions Code, sections 17200, et seq.; (5) negligence; (6) breach of covenant of quiet enjoyment; (7) intentional influence to vacate; (8) intentional infliction of emotional distress; (9) fraud and deceit; (10) violation of the California Fair Employment and Housing Act (“FEHA”); (11) violation of City of Los Angeles Tenant Anti-Harassment Ordinance; (12) negligence per se; (13) violation of the Unruh Civil Rights Act; (14) violation of the Bane Act, Civil Code section 52.1; (15) violation of Los Angeles County Retaliatory Eviction and Anti-Harassment Ordinance; (16) termination of estate under Civil Code, section 789.3; (17) conversion of private property; (18) violation of City of Los Angeles Civil and Human Rights Ordinance; (19) violation of California Welfare and Institutions Code, sections 15600, et seq.; (20) violation of Los Angeles Municipal Code sections 151.00, et seq.; (21) violation of California Vehicle Code, section 22658; and (22) invasion of privacy.

On February 21, 2023, the Court sustained Mansour’s demurrer to the ninth, thirteenth, causes of action, as well as the eighteenth and nineteenth as to Potter only.

Mansour filed an initial answer to the FAC on March 2023, 2023.

On October 19, 2023, the Court sustained Plaintiffs’ demurrer with leave to amend as to Mansour’s fifth, twelfth, sixteenth, nineteenth, twentieth, and twenty-third affirmative defenses. The Court overruled Plaintiffs’ demurrer as to Mansour’s fourth, sixth, and twenty-second affirmative defenses.

Mansour filed the operative amended Answer (“Amended Answer”) to the FAC on November 8, 2023.

Plaintiffs demurred to the Amended Answer on November 16, 2023. Mansour did not file an opposition.

Legal Standard

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.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) 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.)

A demurrer to an answer may be brought on one of three grounds: (1) the answer does not include facts sufficient to constitute a defense; (2) uncertainty; and (3) the facts, as pleaded, are insufficient to determine whether an alleged contract in the answer is written or oral. Code Civ. Proc., § 430.20. 

Defenses should be relevant to a plaintiff’s legal claims and averred carefully, and with as much detail as the facts constituting the corresponding causes of action in the complaint.  FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 (FPI Development). They should not be proffered in the form of “terse legal conclusions.” (Ibid.)

Discussion

Mansour has corrected the deficiencies identified in the Court’s order on the previous demurrer by adding factual allegations to the affirmative defenses in the Answer. Mansour has pled sufficient ultimate facts to support the affirmative defenses at the pleading stage.

Plaintiffs’ demurrer fails to specifically identify any affirmative defenses that are deficient. Plaintiffs appear to be mistakenly arguing against the affirmative defenses in the separate answer filed by defendant Luzelba Lozano Mansour (“Luzelba”)– a different party – rather than the Amended Answer of Zaki Mansour which is at issue here. 

For example:

·       Plaintiff argues that the second affirmative defense alleges that third parties are responsible for Plaintiffs’ damages.  But the second affirmative defense in Mansour’s Amended Answer does not contain such an allegation.  Rather, the second affirmative defense in Mansour’s Amended Answer is Failure to State Sufficient Facts.  It may be that Plaintiff is referring to  Luzelba’s second affirmative defense (third-party responsibility), but that is not the answer at issue in the current demurrer. 

·       Plaintiff argues that there is a problem with the twelfth affirmative defense allegation of setoff.  Mansour’s Amended Answer, however, alleges privilege, not setoff.  By contrast, Luzelba Lozano Mansour’s twelfth affirmative defense alleges setoff.

The Court is not obligated to comb through the Amended Answer to rationalize Plaintiff’s arguments. 

The Court overrules the demurrer.