Judge: Joseph Lipner, Case: 22STCV38834, Date: 2023-09-21 Tentative Ruling

Case Number: 22STCV38834    Hearing Date: October 24, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Irene Terrell (Terrell) filed a demurrer to the complaint in this action on May 30, 2023. 

The Court SUSTAINS the demurrer without leave to amend.  This action accordingly will be dismissed.

Background

This action concerns Plaintiffs’ claims that the duplex residence at which they lived, located at 6810 S. Van Ness Avenue in Los Angeles, was not habitable. Defendant Irene Terrell (“Defendant”) owns the building, which is managed by her family members.

On August 31, 2022, Plaintiffs filed Nickiah Sims v. Irene Terrell, et al., case number 22STCV28503 assigned to Department 12 of the Los Angeles Superior Court (the “Earlier Action”).  The Earlier Action alleged causes of action for (1) breach of contract, (2) breach of implied warranty of habitability; (3) nuisance; (4) negligence; (5) intentional infliction of emotional distress, (6) retaliatory eviction, and (7) violation of California Civil Code Section 1942.4. In the earlier action, Terrell served and filed an Answer on January 17, 2023.

On December 14, 2022, Plaintiffs filed the current complaint against Defendants Maria Acosta, Allen Acosta, and Does 1-50, alleging causes of action for (1) private nuisance, (2) negligence, (3) breach of warranty of habitability, (4) breach of covenant of good faith and fair dealing, (5) breach of implied covenant of quiet enjoyment, (6) violation of Civil Code Section 1942.7, and (7) intentional infliction of emotional distress.

Defendant Irene Tyrell was not named in the original complaint.  However, on February 15, 2023, Plaintiffs filed an amendment to the complaint identifying Irene Tyrell as Doe No. 1.  On the same day, Plaintiffs attempted to dismiss certain claims without prejudice, but the request for dismissal was not entered. On 2/17/2023 the Court ordered dismissal pursuant to the oral request made by counsel for Plaintiff without prejudice as to” “Maria Acosta et al.” 

Because of the words “et al” in the dismissal order, it is not entirely clear whether the Court meant to dismiss only Maria Acosta and Allen Acosta or all defendants, including Tyrell.  The parties have been conducting themselves as if Maria and Allen Acosta are no longer in the case, but that the case is still pending against Tyrell.  The Court will proceed with that understanding.

On May 30, 2023, Terrell demurred to the complaint, arguing that the claims against her in the complaint were duplicative of those pending against her in the Earlier Action.  The demurrer was originally set for hearing on July 20, 2023.  On July 12, 2023, the Court on its own motion continued the hearing on the demurrer to September 21, 2023, along with a case management conference and Plaintiffs’ counsel’s motions to be relieved as counsel.  On August 21, 2023, Terrell continued her demurrer hearing to October 24, 2023, which allowed for time for an opposition by Plaintiffs between Plaintiffs’ counsel being relieved as counsel and the hearing on the demurrer.  On September 21, 2023, the Court granted Plaintiffs’ counsel’s motion to be relieved as counsel.

To date, Plaintiffs have not filed an opposition to the demurrer.  Terrell filed a notice of non-opposition on October 13, 2023.

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.) 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.)

The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions, or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

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.)         

Discussion

          Meet and Confer

California Code of Civil Procedure §§ 430.4 (a), and 435.5 (a), requires meeting and conferring “in person or by telephone” at least five days before filing a demurrer or motion to strike. Terrell’s counsel sets forth in his declaration that On March 29, 2023, Terrell’s counsel followed up with Plaintiffs’ counsel via email regarding the status of dismissing the complaint. (Newell Decl. ¶5, Ex. B.) Plaintiffs’ counsel responded on the same day via email stating that they tried to contact Plaintiffs’ other counsel regarding the prior complaint filed but they had not heard back from them in weeks. (Id. at ¶6.) Terrell’s counsel asserts that “the parties agreed to a 30-day extension for Irene Terrell’s due date for a responsive pleading to allow time to determine if the instant Complaint would be dismissed.” (Id., Ex. C.) On April 13, 2023, Terrell’s counsel followed up with Plaintiffs’ counsel via email regarding the status of a dismissal of the duplicative complaint. (Id. at ¶7, Ex. D.) Terrell has fulfilled her obligation to meet and confer.

Terrell’s Demurrer

          A demurrer may be sustained on the basis that a particular cause of action is duplicative or another.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)  Moreover, a demurrer is proper where there is another action pending between the same parties on the same cause of action.  (Civ. Proc. Code § 430.10(c).)

          While the case law about “duplicative causes of action” relates to causes of action within the same lawsuit, it applies with force here, where each of the causes of action are duplicative of the causes of action in the Earlier Action between the same parties.  There is no good reason of which the Court is aware for the current case to continue in any form.  .

          Moreover, Plaintiffs have not opposed this demurrer.  See California Rule of Court 8.54(c)(“A failure to oppose a motion may be deemed a consent to the granting of the motion”).  It is not even clear that Plaintiffs want this duplicative lawsuit to exist.  It appears to be a waste of resources for all parties, including Plaintiffs, and for the Court.

          Plaintiffs have not made any request to amend the complaint in this case, much less shown how an amendment would cure the problems in the current complaint.  Accordingly, the demurrer is granted without leave to amend.