Judge: Katherine Chilton, Case: 22STLC06731, Date: 2023-03-01 Tentative Ruling
Case Number: 22STLC06731 Hearing Date: March 1, 2023 Dept: 25
PROCEEDINGS: DEMURRER
MOVING PARTY: Defendants Coldwell Banker
Residential Brokerage Company dba Coldwell Banker Realty (erroneously sued as “Coldwell
Banker Realty”) and Philip Boroda
RESP. PARTY: Plaintiff Karla Moore, in propria persona
DEMURRER
(CCP §§ 430.10)
TENTATIVE RULING:
The Demurrer filed by Defendants Coldwell
Banker Residential Brokerage Company and Philip Boroda is SUSTAINED with 20
days leave to amend.
SERVICE:
[ X ] Proof of Service Timely Filed
(CRC, rule 3.1300) OK
[ X ] Correct Address (CCP §§ 1013,
1013a) OK
[ X ] 16/21 Court Days Lapsed (CCP §§
12c, 1005(b)) OK
OPPOSITION: Filed
on December 16, 2022. [ ]
Late [ ] None
REPLY: Filed
on January 10, 2023. [ ]
Late [ ] None
ANALYSIS:
I.
Background
On October 11, 2022, Plaintiff Karla
Moore (“Plaintiff”), in propria persona, filed an action against Coldwell
Banker Realty (“Coldwell”) and Philip Boroda (“Boroda”), (collectively,
“Defendants”), for illegal lockout/eviction.
On December 12, 2022, Defendants Coldwell
Banker Residential Brokerage Company dba Coldwell Banker Realty (erroneously
sued herein as Coldwell Banker Realty) and Boroda filed the instant Demurrer
(“Demurrer”) and Request for Judicial Notice (“RJN”). On December 16, 2022, Plaintiff filed an Opposition
to the Demurrer (“Opposition”). On
January 10, 2023, Defendants filed a Reply to the Opposition (“Reply”) and a
second Request for Judicial Notice. On
January 17, 2023, Plaintiff filed a “Declaration.”
On January 19, 2023, the Court
noted deficiencies in the Notice of Motion and service of the moving papers and
continued the hearing on the Motion to March 1, 2023. (1-19-23 Minute Order.)
On January 30, 2023, Defendants
filed Evidentiary Objections and Further Declaration of Jose Mendoza in Support
of Demurrer.
II.
Request for Judicial Notice
On December 12, 2022, Defendants
requested that the Court take judicial notice of the following documents:
1)
Exhibit A - The Trustee’s Deed Upon Sale
recorded on July 15, 2022, with the Los Angeles County Recorder’s Office,
transferring title to the real property located at 1604 Sunset Plaza Drive, Los
Angeles, California (the “Property”) to Preferred Bank after a Trustee’s Sale
(i.e., foreclosure);
2)
Exhibit B - Grant Trust recorded on December 6,
2022, with the Los Angeles County Recorder’s Office transferring title to the
Property from Preferred Bank to Reggie Judah, an unmarried man.
On January 10, 2023, Defendants requested
that the Court take judicial notice of the following documents:
1)
Exhibit C - California Department of Real Estate
license for Michelle S.L. Lim, expired in 2015—7 years prior to the date of the
Agreement;
2)
Exhibit D - California Department of Real Estate
license for Michelle Lim, surrendered in 2000—22 years prior to the date of the
Agreement.
Defendant’s
Request for Judicial Notice as to Exhibits A and B is GRANTED, pursuant to
Evidence Code §§ 452 and 453. Defendant’s Request for Judicial Notice as to
Exhibits C and D is DENIED.
III.
Legal Standard
A demurrer is a pleading that may
be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers
and special demurrers. (See McKenney
v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)
General demurrers can be used to
attack pleadings for failure to state facts sufficient to constitute a cause of
action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney,
167 Cal.App.4th at 77.) Such
demurrers can be used only to challenge defects that appear on the face of the
pleading or from matters outside the pleading that are judicially noticeable;
evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70;
Blank
v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) For the
purpose of testing the sufficiency of the cause of action, the Court admits “all material
facts properly pleaded” and “matters which may be judicially noticed,” but does
not consider contentions, deductions, or conclusions of fact or law.
[Citation].” (Blank, 39 Cal.3d at
318.) It gives these facts “a reasonable
interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading
stage, a plaintiff need only allege ultimate facts sufficient to apprise the
defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal.
App. 3d 714, 721.) The face of the
complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189
Cal.App.3d 91, 94.) "If facts
appearing in the exhibits contradict those alleged, the facts in the exhibits
take precedence." (Holland v.
Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)
Special demurrers can be used to
attack the pleadings on grounds that the pleading is uncertain, ambiguous, and
unintelligible, or in a contract case, for failure to allege whether a contract
is oral or written. (Code Civ. Proc., §
430.10(f).) However, special demurrers
are not allowed in limited jurisdiction civil actions and any grounds for
special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)
Moreover, Code of Civil Procedure
§ 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring
party shall meet and confer in person or by telephone with the party who filed
the pleading that is subject to demurrer for the purpose of determining whether
an agreement can be reached that would resolve the objections to be raised in
the demurrer.” (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least
five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and
serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)
When a demurrer
is sustained, the Court determines whether there is a reasonable possibility
that the defect can be cured by amendment.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set
of facts upon which his cause of action is based,” the court should give the
plaintiff an opportunity to amend his complaint, since plaintiff should not “be
deprived of his right to maintain his action on the ground that his pleadings
were defective for lack of particulars.”
(Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to
amend on at least the first try, unless there is absolutely no possibility of
overcoming the issue. (See Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of
leave to amend constitutes an abuse of discretion unless the complaint shows on
its face it is incapable of amendment.
[Citation.] Liberality in
permitting amendment is the rule, if a fair opportunity to correct any defect
has not been given.").)
IV.
Discussion
A.
Meet and Confer Requirements
On November 23, 2022, Counsel
Jose A. Mendoza, on behalf of Defendants, sent an email to Plaintiff at the
address listed on the Complaint to set up a convenient time to meet and
confer. (Mendoza Decl. ¶ 2, Ex. A.) Mendoza did not receive a response and on
December 1, 2022, around 10:39 a.m., called Plaintiff at the phone number
listed on the Complaint. (Ibid.
at ¶ 3.) Plaintiff did not answer the
phone, so Mendoza left a message. (Ibid.) As of the date of the instant Demurrer,
Plaintiff has not responded to Mendoza’s call or email. (Ibid.)
The Court finds that Defendants
have satisfied the meet and confer requirement.
B.
Demurrer
a.
Plaintiff’s Allegations
Plaintiff makes the following
allegations in the Complaint for illegal lockout/eviction:
On the date of, the 2nd, of October. I, Karla
Moore, a tenant (Rent to own) was illegally locked out/“self-help” evicted at
4:22 pm from property “1604 Sunset Plaza drive Los Angeles, CA 90069.
I was called a [n-word] and not allowed in that
neighborhood from Coldwell Banker Realty and Philip Boroda and its (Coldwell
Banker Realty) representing agents. All of my belongings were damaged, stolen
and the locks were changed. As of currently upon checking the “LADWP” website,
my utilities account 1797687071 is still on and in my name, I have not
petitioned that as of now, 10/11/2022.
My belongings and alternate lodging fee(s) are currently as
of 10/11/2022, $17,420.00 and continuing. I am requesting a reimbursement,
justice and most certainly “injunction” against the Bank (Coldwell Banker
Realty) and its representatives from illegally evicting me once more your honor.
I have had severe emotional distress, asthma attack(s),
anxiety attack(s), eating too little, low energy, constant headaches,
unexplained aches and pains and severe fear due to their conduct towards me as
a protected class (a Black woman).
For the aforementioned reason(s) I request to remain in my
property, your honor. Thank you.
(Compl. pp. 1-2.)
b.
Defendants’ Demurrer
Defendants demur to the cause of
action for unlawful eviction on the grounds that 1) the Complaint “does not
state sufficient facts to state a cause of action against Defendants” and 2) it
“is uncertain in that it cannot be ascertained what facts give rise to the
purported cause of action.” (Demurrer p.
3.) Defendants request that the Court
sustain the Demurrer without leave to amend, dismiss the action, and award
Defendants costs and other relief the Court may deem proper. (Ibid.)
The Court notes special
demurrers on grounds that the pleading is uncertain are not allowed in limited
jurisdiction civil actions. (Code Civ. Proc.,
§ 92(c).)
Defendants argue
that “Plaintiff cannot establish a claim for unlawful eviction since she was
never a lawful tenant or occupant at the Property.” (Demurrer p. 5.) The Property was foreclosed and vacant on or
about July 15, 2022. (Ibid.; RJN
– Ex. A.) Around December 6, 2022,
escrow closed on the Property with a third-party purchaser for $2,295,000. (Ibid., RJN – Ex. B.)
Defendants argue
that Plaintiff has not alleged any facts regarding a lease contract, including
the parties, date or place of creation, or any of its terms. (Ibid. at p. 6.) Plaintiff has not provided any proof of
payments showing that a landlord-tenant relationship existed between Plaintiff
and Defendants. (Ibid. at pp.
6-7.)
Defendants also introduce
additional facts that are not pleaded or judicially noticeable. (See, e.g,.ibid. at pp. 4, 7.) The Court disregards these additional facts.
c.
Plaintiff’s Opposition to Demurrer
Plaintiff opposes the Demurrer, stating that “[t]he
complaint is clear, concise and specifically establishes allegations.” (Oppos. p. 3.) Plaintiff argues matters that are not
included in the Complaint and, accordingly, are not considered here. For example, Plaintiff has submitted a Rental
Agreement, which was not attached to the Complaint, nor were the terms pleaded
in the Complaint.
d.
Defendants’ Reply to Demurrer
In their Reply to Plaintiff’s Opposition, Defendants argue
that “Plaintiff’s Opposition still fails to establish a claim for unlawful
eviction since she was never a lawful tenant or occupant at the Property.” (Reply p. 2.)
Defendants object to the Rent to Own Agreement submitted by
Plaintiff along with the Opposition, arguing that the “typewritten signature of
Coldwell Banker Realty” is not valid and fails to state who had the authority
to sign the agreement on behalf of Defendant Coldwell. (Ibid. at p. 2.)
Again, additional arguments are not considered here as they
rely on documents that were not attached to the Complaint and not judicially
noticed.
e.
Analysis
On January 19, 2023, the Court
noted the following deficiencies in the Demurrer. (1-19-23 Minute Order.) First, the Notice of Demurrer contained the
wrong address for the courthouse where the hearing on the Demurrer will take
place and did not comply with California Rules of Court, rule 3.1110(b). (Ibid.) Second, the moving papers were improperly served on
self-represented Plaintiff via electronic transmission without her express
consent, in violation of Code of Civil
Procedure § 1010.6. (Ibid.) For these reasons, the Court continued the
hearing on the Demurrer and ordered Defendants to correct these
deficiencies. (Ibid.)
On January 30, 2023, Defendants filed a Declaration
addressing the Court’s January 19, 2023, Order.
First, Defendants object to Plaintiff’s additional declaration filed on
January 17, 2023. (1-30-23 Mendoza Decl.
¶ 2.) On January 17, 2023, Plaintiff filed an additional
declaration, in which she alleges that Defendants have made threats against her
and as a result, she requests to make a telephonic appearance. (1-17-23 Declaration p. 2.) Plaintiff also submits additional
evidence. However, the evidence is not authenticated
and not judicially noticed and is therefore not considered. Moreover, sur-replies are not authorized.
Defendants also state that they have amended the Notice of
Demurrer and re-served it to Plaintiff via email and U.S. mail to the physical
address listed on Plaintiff’s pleadings.
(1-30-23 Mendoza Decl. ¶ 3.)
Defendants add that Plaintiff was initially served via email because she
does not reside at the physical address listed on the pleadings, which is the
address of the Property at issue in this case.
(Ibid.) Defendants ask
that Plaintiff provide a correct physical address where subsequent documents
may be served throughout the litigation.
(Ibid.)
The Court finds that Defendants have corrected the
deficiencies noted in the Court’s January 19, 2023, Order. The Court now assesses the merits of
Defendants’ Demurrer.
Plaintiff’s Complaint is for a cause of action for “illegal
lockout/eviction;” however, Plaintiff does not cite to any statute or legal
authority for this cause of action.
Thus, the Court cannot discern on what basis Plaintiff has brought her
lawsuit.
The Court
also finds that, Plaintiff has not alleged sufficient facts to demonstrate the
existence of a lease agreement. “The standard elements of a claim for breach of
contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. [Citation.]’ [Citation.]’” (Wall Street Network, Ltd. v. New York
Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The Complaint does not set forth any factual
allegations about the lease agreement and its terms. Although Plaintiff has attached a copy of an alleged
lease agreement to her Opposition to the Demurrer, the exhibit is not
authenticated and cannot be admitted into evidence.
Accordingly, the Court finds that
the Complaint fails to state sufficient facts for a cause of action for
“illegal lockout/eviction.” The Court
SUSTAINS Defendant’s Demurrer.
C.
Leave to Amend
The Court finds
that there is a reasonable possibility that Plaintiff may cure the defect by
amending the Complaint.
Accordingly,
Defendants’ Demurrer is SUSTAINED with 20 days leave to amend.
V.
Conclusion & Order
For the foregoing reasons,
The Demurrer filed by Defendants
Coldwell Banker Residential Brokerage Company and Philip Boroda is SUSTAINED
with 20 days leave to amend.
Moving party is
ordered to give notice.