Judge Kerry Bensinger, Case Number: 23STCV24999, Date: 2024-04-02 Tentative Ruling

According to the complaint, Plaintiff, Bronson Avenue Properties, LLC, agreed to an Airbnb rental to Defendant, Rhonda Gibson, based on misrepresentations that Defendant would be actually occupying and residing in the rental unit. However, Defendant deposited over $26,000 for a 240-night stay with the intent of moving her son Mikhail Quarles (“Quarles”), and his family into the rental unit in Defendant’s stead. Defendant intended that this “bait and switch” would result in her son receiving a “free” rental unit where no rent would be paid beginning on the 241^st night and make eviction of Quarles and his family difficult.

On October 12, 2023, Plaintiff filed a Complaint against Defendant alleging causes of action for (1) Fraud – Intentional Misrepresentation, (2) Fraud – Concealment, (3) Promissory Fraud, (4) Negligent Misrepresentation (5) Breach of Contract, and (6) Breach of the Covenant of Good Faith and Fair Dealing.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defendant requests judicial notice of (1) The Complaint filed on September 26, 2022 in Bronson Avenue Properties, LLC., v. Mikhail Quarles and Rhonda Gibson, LASC Case No. 22STUD06108, (Request for Judicial Notice (RJN) 1); and(2) The Judgment entered on July 20, 2023 in Bronson Avenue Properties, LLC., v. Mikhail Quarles and Rhonda Gibson, LASC Case No. 22STUD06108 (RJN 2).

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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, subd. (a).)¿ Here, Defendant has not made a showing of meeting and conferring in person, by telephone, or by video conference prior to filing this demurrer. However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”¿ (Code Civ. Proc., § 430.41, subd. (a)(4).) Accordingly, the court exercises its discretion to consider Defendant’s demurrer.¿

“Res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. A predictable doctrine of res judicata benefits both the parties and the courts because it seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp.¿(2008) 168 Cal.App.4th 675, 683 (cleaned up).)¿¿¿

“A prior judgment is not¿res¿judicata¿on a subsequent action unless three¿elements¿are satisfied:¿‘(1) the issues decided in the prior adjudication are identical with those presented in the later action; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the plea is raised was a party or in privity with a party to the prior adjudication. [Citation.]” (Id. at pp. 685-86.)¿ “To prevent piecemeal litigation, the doctrine of res judicata also applies to bar a second suit arising out of the same factual situation involving matters which were relevant and within the same scope of the first action, which thus could have been raised in the first suit. [Citation.]” (Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1257-58.)

Defendant’s argument is not well-taken. Here, the prior litigation Bronson Avenue Properties, LLC., v. Mikhail Quarles and Rhonda Gibson, LASC Case No. 22STUD06108 (the “Prior Litigation”) did not involve identical issues and did not conclude a final judgment against Defendant. (See RJN 1 and 2.) The Prior Litigation was an unlawful detainer action that concluded in a stipulated judgment in favor of Quarles against Plaintiff. Defendant was a party of the Prior Litigation but a judgment was not entered against her.

Moreover, “[g[iven the narrow scope of issues that may be litigated in a summary unlawful detainer proceeding, “claim preclusion” effect from an unlawful detainer judgment is relatively uncommon. [See Vella v. Hudgins, supra, 20 C3d at 257, 142 CR at 417; Struiksma v. Ocwen Loan Servicing, LLC (2021) 66 CA5th 546, 554-555, 280 CR3d 881, 886-887; Gombiner v. Swartz (2008) 167 CA4th 1365, 1371, 85 CR3d 83, 89].” (Weil & Brown, Cal. Prac. Guide Landlord-Tenant (The Rutter Group 2023) ¶ 9.410.) Some of those issues which may be subject to claim preclusion include (1) successive actions for back-due rent (Lekse v. Municipal Court (1982) 138 Cal.App.3d 188, 194); (2) civil rights claim premised on retaliatory eviction (Lovely v. Laliberte (1st Cir. 1974) 498 F.2d 1261); (3) wrongful eviction (Needelman v. DeWolf Realty Co. Inc. (2015) 239 Cal.App.4th 750, 753-756). (See Weil & Brown, Cal. Prac. Guide Landlord-Tenant (The Rutter Group 2023) ¶¶ 9.411, 9:412, 9:412.1, 9:412.2.) Plaintiff could not have raised these fraud and breach of contract claims in the Prior Litigation. Indeed, “[w] hen, after commencement of a UD, possession ceases to be an issue, the landlord may amend the complaint to seek damages not cognizable in an unlawful detainer (Civ.C. § 1952.3—suit becomes a nonsummary general civil action; see ¶ 7:448 ff.). Absent such amendment, the commencement of an unlawful detainer does not affect the landlord's right to bring a separate action for contractual damages not recoverable in the UD (but no damages shall be recovered in the subsequent action for any detriment for which a claim for damages was made and determined on the merits in the previous action). [Civ.C. § 1952(b); see Hong Sang Market, Inc. v. Peng (2018) 20 CA5th 474, 497, 229 CR3d 99, 116—UD judgment awarding back-due rent did not preclude landlord from seeking additional back-due rent in civil action].” (Weil & Brown, Cal. Prac. Guide Landlord-Tenant (The Rutter Group 2023) ¶ 9.416.1.) Plaintiff’s Complaint is not barred by res judicata. Defendant’s demurrer lacks merit.

Defendant is ordered to file and serve her Answer to the Complaint within 10 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Defendant is self-represented. On March 18, 2024, Defendant filed a Notice of Limited Scope Representation stating attorney William K. Bgdoian will represent Defendant at the hearing for this demurrer.