Judge: Joseph Lipner, Case: 24STCV03621, Date: 2024-08-13 Tentative Ruling
Case Number: 24STCV03621 Hearing Date: August 13, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
JENNIFER MEDINA, et al., Plaintiffs, v. LUIS CHAVEZ, Defendant. |
Case No:
24STCV03621 Hearing Date: August 13, 2024 Calendar Number: 8 |
Plaintiffs and Cross-Defendants Jennifer Medina; Jose
Salazar; Joseph Medina; Juan Medina; Luis Salazar by and through his Guardian
Ad Litem Jennifer Medina; Jose Salazar Jr. by and through his Guardian Ad Litem
Jennifer Medina; Aliyah Salazar by and through her Guardian Ad Litem Jennifer
Medina; and Ismael Salazar by and through his Guardian Ad Litem Jennifer Medina
(collectively, “Plaintiffs”) demur to the second, third, fourth, sixth,
seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth claims in the
Cross-Complaint filed by Defendant and Cross-Complainant Luis Chavez
(“Defendant”).
The Court SUSTAINS the demurrer WITH LEAVE TO AMEND with
respect to the second, third, fourth, seventh, and thirteenth claims. Defendant shall amend within 20 days.
The Court SUSTAINS the demurrer WITHOUT LEAVE TO AMEND with
respect to the sixth, eighth, ninth, tenth, eleventh, and twelfth claims. None of these claims are standalone claims
under California law, and all of them are duplicative of claims or prayers for
relief that remain or may be asserted in the cross-complaint. To the extent that there is a need to do so,
Defendant may include the allegations from these claims in the remaining claims
or prayer for relief of the Cross-Complaint.
This is a landlord-tenant case. Except where otherwise
noted, the following facts are taken from the allegations of the
Cross-Complaint, which the Court accepts as true for the purposes of the
demurrer.
Defendant owns and manages the property located at 10254
California Avenue, #A, South Gate, California 90280 (the “Property”).
Plaintiffs rented the property from Defendant pursuant to an
oral rental agreement, for monthly rent of $900.00.
Defendant alleges that Plaintiffs failed to pay rent as
agreed, resulting in total unpaid rent of $24,300.00.
Defendant alleges that Plaintiffs have allowed unauthorized
occupants to reside at the Property. Defendant alleges that this is a violation
of the rental agreement and has led to additional maintenance costs.
Plaintiffs filed this action on February 13, 2024.
Plaintiffs allege in the Complaint that the Property has contained substandard
conditions, including rodent and roach infestations, lack of heat, visible
mold, broken windows, plumbing issues, and defective flooring. The Court does
not accept these facts as true for the purposes of this demurrer.
On June 20, 2024, Defendant filed the Cross-Complaint,
raising claims for (1) breach of contract; (2) fraud; (3) negligent infliction
of emotional distress (“NIED”); (4) malicious prosecution; (5) intentional
destruction of property; (6) unauthorized occupants; (7) abuse of process; (8)
unpaid rent; (9) property damage; (10) breach of lease; (11) legal fees and
court costs; (12) eviction costs; and (13) false allegations and complaints.
Plaintiffs demurred to the Cross-Complaint on July 18, 2024.
Defendant filed an opposition. Plaintiffs did not file a reply.
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.)
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. (Ibid.;
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).
The facts
constituting the alleged fraud must be alleged factually and specifically as to
every element of fraud, as the policy of “liberal construction” of the
pleadings will not ordinarily be invoked. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 645.) The facts
constituting the alleged fraud must be alleged factually and specifically as to
every element of fraud, as the policy of “liberal construction” of the
pleadings will not ordinarily be invoked. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 645.) “[Fraud’s] particularity
requirement necessitates pleading facts which ‘show how, when, where, to whom,
and by what means the representations were tendered.’ [Citation.]” (Stansfield
v. Starkey (1990) 220 Cal.App.3d 59, 73.)
Defendant alleges that:
“21.
[Plaintiffs] made false representations to [Defendant], promising to pay the
outstanding rent and inducing [Defendant] to dismiss two unlawful detainer
actions. [….]
22.
[Plaintiffs] knew these representations were false and made them with the
intent to deceive and induce [Defendant] to rely on them.
23.
[Defendant] reasonably relied on these false representations and dismissed the
unlawful detainer actions based on [Plaintiffs’] promises to pay.”
(Cross-Complaint ¶¶ 21-23.)
Defendant
has not specifically alleged who made the representations or how, when, and
where they were made. Defendant’s fraud claim is therefore deficient.
“A promise of future conduct is actionable as fraud only if
made without a present intent to perform.” (Magpali v. Farmers Group, Inc.
(1996) 48 Cal.App.4th 471, 481.) “Moreover, something more than nonperformance
is required to prove the defendant's intent not to perform his promise. [I]f
plaintiff adduces no further evidence of fraudulent intent than proof of
nonperformance of an oral promise, [the plaintiff] will never reach a jury.” (Ibid
[citation and quotation marks omitted; cleaned up].)
Defendant has not alleged additional facts showing lack of
intent to perform. This is an additional basis to sustain the demurrer.
The Cour sustains the demurrer to this claim with leave to
amend.
“The law of negligent infliction of emotional distress in
California is typically analyzed by reference to two theories of recovery: the
‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of
emotional distress is not an independent tort, but the tort of negligence. The
traditional elements of duty, breach of duty, causation, and damages apply.
Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114
Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks
omitted.)
Defendant alleges that he suffered insomnia as a result of
Plaintiffs’ alleged failure to pay rent. This is not a proximate and
foreseeable result of failure to pay rent. A landlord in such a position has a
readily available remedy – to file an unlawful detainer action. The fact that
Defendant delayed in pursuing recovery of rent is a matter of Defendant’s own
conduct, and not Plaintiffs’.
The Cour sustains the demurrer to this claim with leave to
amend.
“A plaintiff must plead and prove three elements to
establish the tort of malicious prosecution: a lawsuit (1) was commenced by or
at the direction of the defendant and was pursued to a legal termination
favorable to the plaintiff; (2) was brought without probable cause; and (3) was
initiated with malice.” (Nunez v. Pennisi
(2015) 241 Cal.App.4th 861, 872, quotation marks omitted.)
Defendant does not allege an action that has terminated in
his favor. Although it is not entirely clear from the face of the
Cross-Complaint, it appears that this is because the action that forms the
basis of Defendant’s claim is this case, which is ongoing. In any event,
Defendant fails to allege the first element.
The Cour sustains the demurrer to this claim with leave to
amend.
“California defines a “cause of action” in accord with
Pomeroy's “primary right” theory. [Citation] A cause of action consists of (1)
a primary right possessed by the plaintiff and a corresponding primary duty
imposed upon the defendant, and (2) a delict or wrong committed by the
defendant which constitutes a breach of such primary right and duty.” (Miranda
v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658.)
The primary right and wrong at issue in this claim are
Plaintiffs’ alleged breaches of the lease. The same is true for Defendant’s
claims for unpaid rent, property damage, legal fees and court costs, and
eviction costs. These are all either forms of alleged breach, or remedies which
Defendant claims for Plaintiffs’ alleged breaches. They do not exist as
separate causes of action.
The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can
incorporate allegations from this claim into the remaining claim or prayer for
relief.
“There are two main elements of a cause of action for abuse
of process: first, an ulterior purpose, and second, a wilful act in the use of
the process not proper in the regular conduct of the proceeding. Process is action
taken pursuant to judicial authority. Merely obtaining or seeking process is
not enough; there must be subsequent abuse, by a misuse of the judicial process
for a purpose other than that which it was intended to serve. The gist of the
tort is the improper use of the process after it is issued.” (Siam v. Kizilbash (2005) 130 Cal.App.4th
1563, 1580, quotation marks, citations, ellipses, and paragraph breaks
omitted.)
“Malicious prosecution and abuse of process are distinct.
The former concerns a meritless lawsuit (and all the damage it inflicted). The
latter concerns the misuse of the tools the law affords litigants once they are
in a lawsuit (regardless of whether there was probable cause to commence that
lawsuit in the first place). Hence, abuse of process claims typically arise for
improper or excessive attachments […] or improper use of discovery[.]” (Bidna
v. Rosen (1993) 19 Cal.App.4th 27, 40 [citation omitted].)
Defendant has not alleged that Plaintiffs engaged in any
process other than filing the Complaint in this case. Defendant has therefore
failed to allege that Plaintiffs misused the tools of litigation.
The Cour sustains the demurrer to this claim with leave to
amend.
As discussed above, this claim is duplicative of Defendant’s
breach of contract claim.
The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can
incorporate allegations from this claim into the remaining claim or prayer for
relief.
As discussed above, this claim is duplicative of Defendant’s
breach of contract claim.
The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can
incorporate allegations from this claim into the remaining claim or prayer for
relief.
As discussed above, this claim is duplicative of Defendant’s
breach of contract claim.
The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate
allegations from this claim into the remaining claim or prayer for relief.
As discussed above, this claim is duplicative of Defendant’s
breach of contract claim.
The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can
incorporate allegations from this claim into the remaining claim or prayer for
relief.
As discussed above, this claim is duplicative of Defendant’s
breach of contract claim.
The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can
incorporate allegations from this claim into the remaining claim or prayer for
relief.
Plaintiffs argue that this claim is duplicative of
Defendant’s fraud claim. To the extent that that is the case, this claim fails
for the same reason as Defendant’s fraud claim.
Defendant appears to characterize this claim as a defamation
claim, although it is unclear. Defendant does not lay out specific statements
by Plaintiffs that are alleged to be defamatory.
“The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency
to injure or causes special damage. The defamatory statement must specifically
refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [quotation
marks and citation omitted].)
California law does not permit liability for communications
relating to lawsuits, except in the case of malicious prosecution. (See Civ.
Code, § 47.) The litigation privilege applies to any communication: (1) made in
judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objectives of the litigation; and (4)
that have some reasonable relevancy to the subject matter of the action. (Silberg
v. Anderson (1990) 50 Cal. 3d 205, 212.) “It is also well settled that the
absolute privilege … extends to preliminary conversations and interviews
between a prospective witness and an attorney if they are some way related to
or connected with a pending or contemplated action. (Ascherman v. Natanson
(1972) 23 Cal.App.3d 861, 865.)
Thus, it is unclear whether Defendant has stated a claim for
defamation. At a minimum, if this is a
defamation claim, Defendant must clarify that it has asserted such a claim and
plead it in a manner that is legally sufficient.
Accordingly, the Court sustains the demurrer with leave to
amend.