Judge: Keri G. Katz, Case: 37-2022-00034034-CU-BT-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2022-00034034-CU-BT-CTL RAY VS CONSERVICE LLC [EFILE] CAUSAL DOCUMENT/DATE FILED:

Defendant Conservice, LLC's demurrer to Plaintiffs' Second Amended Complaint is OVERRULED as to the Equitable Accounting cause of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the Violation of CC § 1954.209 cause of action.

Conservice raises the procedural issue of Plaintiffs adding Plaintiffs Clifford Weber and Chris Polestra in the Second Amended Complaint. The court finds the leave to amend allowed by this court following Conservice's demurrer to Plaintiffs' First Amended Complaint sufficient to allow Plaintiffs leave to add additional individuals as Plaintiffs.

Equitable Accounting Conservice's demurrer is OVERRULED.

Sass v. Cohen (2020) 10 Cal.5th 861 explains, [a]n action for an accounting has two elements: (1) 'that a relationship exists between the plaintiff and defendant that requires an accounting' and (2) 'that some balance is due the plaintiff that can only be ascertained by an accounting.' (Teselle, supra, 173 Cal.App.4th at p. 179, 92 Cal.Rptr.3d 696; see also 5 Witkin, Cal. Procedure, supra, Pleading, § 820.) The action carries with it an inherent limitation; an accounting action 'is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.' (Teselle, at p. 179, 92 Cal.Rptr.3d 696; see also St. James Church of Christ Holiness v. Superior Court of Los Angeles County (1955) 135 Cal.App.2d 352, 359, 287 P.2d 387.) Sass, 10 Cal.5th at 869.

Conservice first argues that Plaintiffs' pursuit of this cause of action improperly shifts the burden of proof.

However, as Sass explains, [a]n action for an accounting has been characterized as 'a means of discovery.' (Teselle, supra, 173 Cal.App.4th at p. 180, 92 Cal.Rptr.3d 696 ['the purpose of the accounting is, in part, to discover what, if any, sums are owed to the plaintiff, and an accounting may be used as a discovery device'].) This characterization is consistent with the idea that a plaintiff seeking an accounting cannot 'allege[ ] the right to recover a sum certain' because he or she lacks the information necessary to determine the Calendar No.: Event ID:  TENTATIVE RULINGS

3014307  4 CASE NUMBER: CASE TITLE:  RAY VS CONSERVICE LLC [EFILE]  37-2022-00034034-CU-BT-CTL precise amount that may be due. (Id. at p. 179, 92 Cal.Rptr.3d 696.) The plaintiff's lack of knowledge drives the need for discovery; and the fact that the gap can be filled via discovery implies the information is within the control of the defendant. In other words, the defendant in an accounting action possesses information unknown to the plaintiff that is relevant for the computation of money owed.

Sass, 10 Cal.5th at 869. As such, the discovery aspect of an accounting cause of action does not improperly shift the burden of proof.

As on the Conservice's previous demurrer, Conservice again argues that the Second Amended Complaint fails to allege the existence of the requisite relationship 'between the plaintiff and defendant that requires an accounting.' Sass, 10 Cal.5th at 869. Plaintiffs also again rely on McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784. As set forth in this court's ruling on Conservice's demurrer to the First Amended Complaint, the analysis in McClain allowing for an accounting cause of action is based on the express terms of the lease requiring the landlord to provide the plaintiff 'with a reasonably detailed statement of the expenses.' McClain, 159 Cal.App.4th at 808. The court finds the allegations of the SAC that certain Plaintiffs' leases contain the term: 'more detailed descriptions of billing methods, calculations and allocation formulas will be provided upon request' [SAC ¶ 34, 36] sufficient to state a cause of action for an accounting under the analysis of McClain.

The court is not persuaded by any of Conservice's other arguments against application of the analysis in McClain. Allegations that 'CONSERVICE provided more detailed calculations purportedly evidencing how the amounts were calculated . . . . ' [SAC ¶ 51] ignores the next phrase of the allegation '. . .

however still refused to provide the underlying master-metered or property-wide bills . . . .' [SAC ¶ 51].

The court finds the analysis in McClain sufficient to support an accounting cause of action under the allegations of the SAC. That McClain involved a commercial lease and shared common area expenses does not require a different analysis. As pled, Plaintiffs are all tenants with leases and are all subject to the cost-sharing provisions in their respective leases [SAC ¶¶ 33-36]. The court finds such allegations sufficiently analogous to allow for application of the analysis of McClain in this case.

Nor is the court persuaded by the other arguments Conservice raises. The authority Conservice relies on, Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, allows for an accounting cause of action when the information provided by the defendant is insufficient to calculate the amount due such as is alleged in this case. That Plaintiffs allege other causes of action seeking similar relief does not preclude an accounting cause of action because Plaintiffs are allowed to plead in the alternative. See, Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1403. Conservice relies on ¶74 of the SAC as an allegation of a sum that can be made certain. However, ¶ 74 alleges, in full: 'The amount owed by CONSERVICE to the Plaintiffs and Plaintiff classes is unknown and cannot be ascertained without an accounting.' Such allegations do not defeat an accounting cause of action. Any class certification issues are more appropriately raised in the context of Plaintiffs' motion for class certification.

Violation of Civil Code § 1954.209 Conservice's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs concede Conservice's demurrer as to Plaintiffs Michael Ray and Britni Georgiana.

As to the remaining Plaintiffs, Conservice also argues that there is no private right of action to enforce CC § 1954.209 [Information to be maintained and made available at tenant's request]. Pursuant to this section: The landlord shall maintain and make available in writing, at the tenant's written or electronic request, within seven days after the request, the following: (a) The date the submeter was last inspected, tested, and verified, and the date by which it shall be Calendar No.: Event ID:  TENTATIVE RULINGS

3014307  4 CASE NUMBER: CASE TITLE:  RAY VS CONSERVICE LLC [EFILE]  37-2022-00034034-CU-BT-CTL reinspected, tested, and verified under law, if available. If this information is not available, the landlord shall disclose that the information is not available.

(b) The data used to calculate the tenant's bill, as follows: (1) The most recent water bill for the property's master water meter showing the recurring fixed charge for water service billed to the property by the water purveyor, and the usage charges for the property, including any tiered amounts.

(2) Any other bills for water service, as defined in subdivision (h) of Section 1954.202, for the property.

(3) The number of dwelling units in the property used in the last billing period to calculate the tenant's water service charges.

(4) If not shown on the bill for the property, the per unit charges for volumetric water usage, including any tiered amounts.

(5) The formula used to calculate the charge for the tenant's volumetric water usage.

(c) The location of the submeter.

Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360 sets forth the applicable private cause of action analysis.

'A violation of a state statute does not necessarily give rise to a private cause of action. [Citation.] Instead, whether a party has a right to sue depends on whether the Legislature has 'manifested an intent to create such a private cause of action' under the statute. [Citations.] Such legislative intent, if any, is revealed through the language of the statute and its legislative history.' (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596, 113 Cal.Rptr.3d 498, 236 P.3d 346 (Lu); see Noe, supra, 237 Cal.App.4th at p. 336, 187 Cal.Rptr.3d 836.) ' '[W]e consider the statute's language first, as it is the best indicator of whether a private right to sue exists.' [Citation.] 'A statute may contain ' 'clear, understandable, unmistakable terms,' ' which strongly and directly indicate that the Legislature intended to create a private cause of action. [Citation.] For instance, the statute may expressly state that a person has or is liable [sic] for a cause of action for a particular violation. [Citations.] Or, more commonly, a statute may refer to a remedy or means of enforcing its substantive provisions, i.e., by way of an action.

(Noe, at p. 336; see Lu, at p. 597.) If the statute does not include explicit language regarding a private right of action, but contains provisions that create some ambiguity, courts may look to legislative history 'for greater insight.' (Lu, at p. 598; see Noe, at p. 336.

' 'It is well settled that there is a private right of action to enforce a statute 'only if the statutory language or legislative history affirmatively indicates such an intent. [Citations.] That intent need not necessarily be expressed explicitly, but if not it must be strongly implied.' ' ' (Noe, supra, 237 Cal.App.4th at p. 337, 187 Cal.Rptr.3d 836; see Lu, supra, 50 Cal.4th at p. 601, fn. 6, 113 Cal.Rptr.3d 498, 236 P.3d 346 [courts will not find a private right of action unless the Legislature has 'clearly manifest[ed] an intent to create a private cause of action under a statute']; Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1131-1132, 138 Cal.Rptr.3d 130 ['[i]t is well settled that there is a private right of action to enforce a statute 'only if the statutory language or legislative history affirmatively indicates such an intent' '].) ' ' Julian, 11 Cal.App.5th at 378–379.

As in Julian, the language of CC § 1954.209 does not include ' ' 'clear, understandable, unmistakable terms' ' ' that 'strongly and directly indicate that the Legislature intended to create a private cause of action' for the violations alleged in the SAC. Julian, 11 Cal.App.5th at 379. Conservice argues that the legislative history does not contain any indication that the legislature intended to create a private cause Calendar No.: Event ID:  TENTATIVE RULINGS

3014307  4 CASE NUMBER: CASE TITLE:  RAY VS CONSERVICE LLC [EFILE]  37-2022-00034034-CU-BT-CTL of action for violation of CC § 1954.209. Plaintiffs offer no argument or evidence to the contrary.

Instead, relying on Seviour-Iloff v. LaPaille (2022) 80 Cal.App.5th 427 and also Mabry v. Superior Court (2010) 185 Cal.App.4th 208, Plaintiffs argue there is an implied private right of action under CC § 1954.209. The court finds both Seviour-Iloff and Mabry distinguishable. Both cases rely on other sections of the applicable code allowing for a private right of action to influence the analysis of whether a private right of action is implied in the statute at issue. In Seviour-Iloff the court relied on Labor Code § 1194(a) to hold that Labor Code § 558.1 allows for a private right of action. In Mabry, the court relied on CC § 2924g as the 'enforcement mechanism' of CC § 2923.5. Plaintiffs fail to demonstrate that similar circumstances are at issue with respect to CC § 1954.209. The court is not persuaded by Plaintiffs' reliance on the analyses in Seviour-Iloff and Mabry. Neither the analyses in these cases, nor the statutory language Plaintiffs rely on, supports a finding that the legislature intended a private right of action under CC § 1954.209.

Although Plaintiffs seek leave to amend, Plaintiffs fail to proffer any facts to cure this pleading deficiency.

Therefore, the court finds Plaintiffs fail to demonstrate a reasonable probability the complaint can be amended to plead a basis for liability against Conservice under this cause of action. Accordingly, Defendant Conservice, LLC's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1143 citing Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917. See also, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Ruinello v. Murray (1951) 36 Cal.2d 687, 690. In light of this ruling, the court does not reach the 'community of interest' issue Conservice raises in reply.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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