Judge: Kevin C. Brazile, Case: 23STCV06398, Date: 2023-10-24 Tentative Ruling

Case Number: 23STCV06398    Hearing Date: March 13, 2024    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Hearing Date:                         Wednesday, March 13, 2024

Case Name:                            Manuel Gomez, Jr. v. MFROST, Inc.

Case No.:                                23STCV06398

Motion:                                  Demurrer with Motion to Strike

Moving Party:                         Plaintiff/X-Defendant Manuel Gomez, Jr.

Responding Party:                  Defendant/X-Complainant Ray Frost

Notice:                                    OK

Ruling:                                    Plaintiff/X-Defendant Gomez’s demurrer to Defendant/X-Complainant Ray Frost’s Cross-Complaint is overruled.  Gomez’s motion to strike is granted as to the attorney’s fees request and denied as to the emotional distress and punitive damages claim.

                                                Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

BACKGROUND

            Plaintiff was employed by Defendants at Madeline Garden, a restaurant in Pasadena, CA.  Plaintiff alleges Defendants failed to pay him minimum wage and required him to live at Defendants Michelle and Ray Frost’s front house in order to effectively perform his duties at Madeline Gardens.  Plaintiff alleges the front house was under construction, not up to Code, lacked a Certificate of Occupancy and was overall, uninhabitable.  Plaintiff alleges Defendants required him to perform repairs on the front house as well.  Plaintiff alleges Defendants also began deducting $1800 in rent from his wages. 

            Plaintiff alleges he suffered a severe injury due to the uninhabitable condition of Defendants’ front house.  Plaintiff alleges he nearly lost his hand and can no longer use his hand. 

            Plaintiff alleges Defendants also fraudulently used his personal information without his consent or authorization to obtain COVID 19 benefits, stimulus relief and food stamps. 

            On March 22, 2023, Plaintiff filed a complaint against Defendants MFROST, Inc. d/b/a Madeline Garden, Michelle Chen Frost d/b/a Madeline Garden and Ray Frost d/b/a Madeline Garden.  Plaintiff alleges (1) unpaid overtime; (2) unpaid minimum wages; (3) non-compliant wage statements; (4) wages not timely paid during and upon separate of employment; (5) illegal tip collection; (6) unpaid meal period premiums; (7) unpaid rest period premiums; (8) violation of Business & Professions Code §17200, et seq.; (9) failure to provide employment records in violation of Labor Code §§1198.5 and 432.7; (10) wrongful eviction; (11) conversion; (12) uninhabitable conditions; (13) negligence; and (14) premises liability. 

            On October 20, 2023, Defendant Ray Frost filed a cross-complaint against Plaintiff Gomez.  Defendant Ray Frost alleges (1) conversion; (2) private nuisance; and (3) trespass. 

            On February 8, 2024, Defendant Michelle Chen filed her operative First Amended Cross-Complaint (FAXC).  Defendant Michelle Chen alleges (1) conversion; (2) private nuisance; (3) trespass; (4) assault; and (5) intentional infliction of emotional distress.

            On February 26, 2024, Gomez filed the instant demurrer and motion to strike portions of Ray Frost’s cross-complaint.  On February 29, 2024, Ray Frost filed oppositions to the demurrer and motion to strike his cross-complaint. On March 4, 2024, Gomez filed replies to Ray Frost’s oppositions to his demurrer and motion to strike. 

DISCUSSION

Applicable Law

            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, the defects must be apparent on the face of the pleading or via proper judicial notice.  (CCP §§430.30, 430.70; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  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 court assumes the truth of the complaint’s properly pleaded or implied factual allegations.  (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)  A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.”  (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

Application to Facts

            Parties’ Position

            Gomez argues Ray’s conversion cause of action fails, because Ray admits in his complaint that he illegally locked Gomez out of his residence.  Gomez argues Ray cannot demonstrate that he had a right to possession of the property or that Gomez committed any type of wrongful act to constitute conversion.  Gomez argues he still had a right to possession of the property.  Gomez argues there are also no facts alleged that would qualify as conversion or property that is capable of conversion.

            Gomez argues the private nuisance claim fails to identify the purported nuisance, whether it is continuing and/or permanent and/or when the alleged nuisance took place.  Gomez argues the allegations imply the nuisance is no longer ongoing and therefore cannot serve the basis of a private nuisance action.

            Gomez argues the trespass claim fails for the same reason as the conversion claim.  Gomez argues Ray cannot establish that he had an interest in the exclusive possession of the property.  Gomez argues he was illegally evicted without process and by changing of the locks.  Gomez argues he still had the right of possession of that property.

            Gomez argues Ray’s request for attorney’s fees should be stricken, because there is no contract between the parties that provides for attorney’s fees.  Gomez argues Ray also fails to identify any contract or statute that provides for recovery of attorneys’ fees. 

            Gomez argues the request for emotional distress damages should be stricken.  Gomez argues none of the causes of action provide for recovery of emotional distress damages.

            Gomez argues there is also no basis for punitive damages alleged.  Gomez argues the cross-complaint merely alleges that Plaintiff refused to vacate the front house upon demand, that Defendants changed the locks of the property, but Plaintiff continued to try to use his key to access the property where he lived for years.  Gomez argues these allegations do not support a claim of punitive damages against him. 

            In opposition, Ray argues the conversion claim is sufficiently stated based on Gomez’s refusal to return Ray’s key to him, Gomez’s refusal to leave to property when asked and Gomez’s inviting an unauthorized person to live with him at the property.  Ray argues Gomez also stole his personal property and made unauthorized alterations to the property.

            Ray argues the nuisance claim is sufficiently pleaded.  Ray argues Gomez’s alleged tenant status does not preclude him from suing Gomez for nuisance.  Ray argues the location of the nuisance is clearly identified, as is the nature of the nuisance. 

            Ray argues trespass is sufficiently alleged.  Ray argues he alleges Gomez entered onto the subject property without his permission, stayed there and invited unauthorized persons to stay there, stored unwanted items on the property, refused to remove them when asked and refused to leave when told to leave.

            Ray argues the motion to strike should also be denied.  While Ray concedes that he is not entitled to attorney’s fees, he maintains he is entitled to seek emotional distress damages based on the nuisance claim.  Ray argues Gomez’s conduct was outrageous and would reasonably cause emotional distress.  Ray argues Gomez’s conduct was also malicious and oppressive, such that punitive damages are properly awarded. 

            Ray asks that the court grant leave to amend if it chooses to sustain demurrer or grant the motion to strike. 

            In reply, Gomez reiterates Ray’s admission that he unlawfully locked Gomez out of his apartment without legal process.  Gomez argues this admission is fatal to all of Ray’s claims.  Gomez argues the nuisance claim fails because the nuisance is not described or alleged.  Gomez argues the alleged nuisance activity is not ongoing and therefore cannot form the basis of a nuisance claim.  Gomez argues the trespass claim fails on its face, because Gomez was illegally evicted from his property.  Gomez argues he still had the right to possession when he allegedly trespassed.   

            Gomez argues the attorney’s fees request must be stricken, as Ray concedes he is not entitled to them.  Gomez argues there is no basis for punitive damages or emotional distress damages based on the cross-complaint allegations.

            Conversion

            “Conversion is the wrongful exercise of dominion over the property of another.  The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.  It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 441, 451-452.)

            Gomez argues the cross-complaint establishes a complete defense to the conversion action based on Ray’s admission that he changed the locks to the subject property where Gomez was living.  Gomez argues Ray’s use of self-help eviction negates Ray’s allegations of conversion. 

            Ray’s conversion claim is based on Gomez’s wrongful exercise of dominion and possession of certain items of personal property, not real property.  (Cross-Complaint, ¶48.)  Ray identifies these items of personal property as house tools, residence keys and various personal property located at 510 N. Huntington Ave., Monterey Park, CA 91754.  (Id.)  Ray’s conversion claim is not based on “conversion” of the real property located at 510 N. Huntington Ave., Monterey Park, CA 91754. 

            Gomez’s demurrer to the conversion claim is overruled. 

            Nuisance

            “Given ‘the broad definition of nuisance,’ the independent viability of a nuisance cause of action ‘depends on the facts of each case.”  (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.)  “Anything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property” is a nuisance.  (CC §3479; Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358–359.) 

            “A nuisance may be either a negligent or an intentional tort.”  (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.)  The essential elements of private nuisance are:

            1. Plaintiff owned/leased/occupied/controlled the property;

            2. Defendant created a condition that (1) was harmful to health; (2) was indecent or offensive to the senses; (3) was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; or (4) unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;

            3.  That this condition interfered with Plaintiff's use or enjoyment of his or her land;

            4.  Plaintiff did not consent to the condition;

            5.  That an ordinary person would be reasonably annoyed or disturbed by Defendant's conduct;

            6. That Plaintiff was harmed;

            7. That Defendant's conduct was a substantial factor in causing Plaintiff's harm; and

            8. That the seriousness of the harm outweighs the public benefit of [name of defendant]'s conduct.  (CACI No. 2021; CC §3479; San Diego Gas & Electric Co. v. Supr. Ct. (1996) 13 Cal.4th 893.

            Nuisance is based on “[a]nything which is…an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…is a nuisance.”  (CC §3479.)  A private nuisance exists where the interference or obstruction is of the use of private land owned by the plaintiff.  (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.)  “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.  An interference need not directly damage the land or prevent its use to constitute a nuisance; private plaintiffs have successfully maintained nuisance actions against airports for interferences caused by noise, smoke and vibrations from flights over their homes and against a sewage treatment plant for interference caused by noxious odors.”  (Id. (“[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury”).) 

            “An action for private nuisance is designed to redress a substantial and unreasonable invasion of one's interest in the free use and enjoyment of one's property.  The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless  conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable. On the other hand, the invasion may be intentional but reasonable; or it may be entirely accidental and not fall within any of the categories mentioned above.  Determination whether something, not deemed a nuisance per se, is a nuisance in fact in a particular instance, is a question for the trier of fact.”  (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230–1231.)

            Ray alleges the nature of the nuisance maintained by Gomez at the subject property included the following:  installation of large audio systems, storage of dangerous firearms and dozens of cases of ammunition at the residence, destruction of floor panels and walls to install surveillance cameras, covering up the residence’s windows with black film and repainting the interior walls of the residence, threats of violence directed at other participants in the rehab program and Ray’s family.  (Cross-Complaint, ¶¶22-26.)  Ray alleges that he owns the subject property and allowed Gomez to live at the subject property as a part of a substance abuse rehabilitation program.  (Id. at ¶16.)  Ray alleges he did not consent to the creation of the conditions and that a reasonable person would be annoyed or disturbed by the nuisance.  (Id. at ¶¶58-59.)  Ray sufficiently alleges the elements of nuisance.  Gomez fails to cite any authority holding that a nuisance must be ongoing in order for a plaintiff to sue for damages arising from a private nuisance.

            Trespass

            “Trespass is an unlawful interference with possession of property.  The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.”  (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.) 

            Ray alleges that Gomez entered the subject property and exceeded Ray’s permission for entry by engaging in the conduct alleged at ¶¶20-38.  (FAC, ¶¶20-38.)  Ray states a claim for trespass. 

            Gomez argues Ray’s self-help eviction is a total defense to any alleged trespass, because he had a legal right to be on the premises.  However, Gomez ignores Ray’s allegation that Gomez only had permission to live there alone, not with his girlfriend, and Ray never gave him permission to alter the premises in the way he did or to store weapons and ammunition there.  Gomez also ignores the allegation that Ray revoked Gomez’s permission to live there, and Gomez ignored Ray’s revocation and request that he leave.  Gomez fails to cite any authority holding that Ray’s self-help eviction is a complete defense to Ray’s claim for trespass damages. 

            Moreover, it is unclear what legal relationship or rights Gomez had to the subject property.  Was Gomez a tenant, a licensee or a guest?  These issues are not clear from the complaint.  A demurrer cannot be sustained on grounds that the complaint may be barred by an affirmative defense.  (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325 (“If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer”); CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635 (“demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred.”)  Demurrer can only be sustained based on a defense if the cause of action is clearly and affirmatively barred based on the face of the complaint.  (CrossTalk Productions, Inc., supra, 65 Cal.App.4th at 635.)  Gomez fails to satisfy this high standard. 

            Gomez’s demurrer to the trespass cause of action is overruled. 

            Motion to Strike

            Gomez’s motion to strike attorney’s fees from the cross-complaint is granted.  Ray concedes he has no basis to request attorney’s fees.

            Ray has successfully alleged claims for conversion, nuisance and trespass.  Ray has alleged facts that would rise to the level of malice and oppression based on Gomez’s alleged intentional alteration and destruction of the subject property, his refusal to vacate the premises despite Ray’s request that he do so, his intentional conversion of personal property and his alleged threats of physical violence and arson.  (Cross-complaint, ¶¶20-38.)  As such, the punitive damages claim is sufficiently pleaded, as is Ray’s claim for emotional distress damages. 

            Gomez’s motion to strike the emotional distress and punitive damages claims are denied. 

CONCLUSION

            Plaintiff/X-Defendant Gomez’s demurrer to Defendant/X-Complainant Ray Frost’s Cross-Complaint is overruled.  Gomez’s motion to strike is granted as to the attorney’s fees request and denied as to the emotional distress and punitive damages claim.  Gomez to answer in 20 days.

            X-Defendant Gomez to give notice.