Judge: Lee W. Tsao, Case: 23NWCV03942, Date: 2024-11-05 Tentative Ruling

Case Number: 23NWCV03942    Hearing Date: November 5, 2024    Dept: C

Juan Paulo Sanchez Silva vs Antonios Misafiris

Case No.: 23NWCV03942

Hearing Date: November 5, 2024 @ 10:30 a.m.

#8

Tentative Ruling

Defendant Antonious Misafiris’s Demurrer is SUSTAINED with 20 days leave to amend and without leave to amend as set forth below. 

Defendant to give notice.

Background

On December 7, 2023, Plaintiff Juan Paulo Sanchez Silva (“Plaintiff”) filed this lawsuit against Defendant Antonios Misafiris (“Defendant”) over a commercial lease agreement for the premises located at 10312 Atlantic Ave., Unit A, South Gate, CA 90280 (“Subject Premises”).  Plaintiff asserts causes of action for: (1) Wrongful Eviction; (2) Trepass; (3) Intentional Infliction of Emotional Distress; (4) Business & Profession Code § 17300; (5) Intentional Misrepresentation; (6) Intentional Interference with Use of Premises; and (7) Breach of Contract & the Covenant of Good Faith and Fair Dealing.

Defendant demurs to all causes of action on the on the ground that they do not state facts sufficient to constitute a cause of action.

No Opposition filed as of November 1, 2024.

Requests for Judicial Notice 

Defendant requests judicial notice of the following documents in Case No. 23NWUD01829, an earlier unlawful detainer action involving the same parties: 1) the Complaint, 2) Judgment, 3) Notice of Enforcement of Eviction, and 4) December 7, 2023 minute order.  The Court may take judicial notice of official legislative, executive, and judicial acts and records of any court of this state or any court of record of the United States or of any state of the United States.  (Evid. Code §§ 452(c) and (d).)  Thus, Defendant’s Requests for Judicial Notice Nos. 1-4 are GRANTED.  Though the Court may take judicial notice of the docket and filings within, the Court may not take judicial notice of the truth of their contents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) 

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).  

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, 147 Cal.App.4th at 747.) 

Discussion

First Cause of Action: Wrongful Eviction

The Complaint alleges that Plaintiff was wrongfully evicted because Defendant “never served upon the Plaintiff a 3-Day Notice to Pay or Quit.” (Complaint, p. 2.)

Defendant argues that the issue of service of the notice to pay rent or quit was litigated in the unlawful detainer action, and collateral estoppel prevents its relitigation in this lawsuit. 

The doctrine of res judicata applies when the issues decided in the prior adjudication are identical with those presented in the later action; there was a final judgment on the merits in the prior action; and the party against whom the plea is raised was a party in privity with a party in the prior adjudication. (Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Ass’n (1998) 60 Cal.App.4th 1053, 1065.) “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. Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings. Under the doctrine of res judicata, if plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action. [¶] A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action in a different legal theory or for different relief.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.)

Applicable here— the doctrine of collateral estoppel, also known as “[i]ssue preclusion, prevents relitigation of issues argued and decided in prior proceedings. The threshold requirements for issue preclusion are: (1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.” (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.)

A judgment in an unlawful detainer action has a collateral estoppel effect in a subsequent action only as to those issues litigated and determined in the prior action. The party asserting the collateral estoppel has the burden to prove from the record of the prior action that the issue was actually litigated and determined. (Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1171.)

In Case No. 23NWUD01829, following a court trial, the Court entered an unlawful detainer judgment on October 10, 2023, in favor of Antonios Misafiris against Juan Paulo Sancez Silva.  Restitution and possession of the Subject Premises was awarded to Misafiris. (RJN, Ex. 2.) On December 7, 2023, the Court denied Silva’s Motion to Set Aside/Vacate Judgment. (RJN, Ex. 4.) Silva filed this lawsuit on the same day (December 7, 2023). 

“[T]he basic elements of unlawful detainer for nonpayment of rent contained in CCP §1161(2) are: (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.”  (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.)

Plaintiff’s claim in this case – that Defendant failed to properly serve a written three-day notice – is an element of unlawful detainer which was necessarily decided in Case No. 23NWUD01829.  That case is now final.  Thus, relitigation of the issue of service of the three-day notice is barred by collateral estoppel. 

The demurrer to first cause of action is SUSTAINED without leave to amend. 

Second Cause of Action: Trespass

Trespass is an unlawful interference with possession of property. "The elements of trespass are: (1) the plaintiffs 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. (See CACI No. 2000.)" (Ralphs Grocerv Co. v. Victory Consultants. Inc. (2017) 17 Cal.App.5th 245,261-262.)

The Complaint alleges “Plaintiff was entitled to possession of the commercial rental unit located at 10312 Atlantic Ave. Unit A, South Gate, California 90280 … Defendants made an unauthorized entry on Plaintiff [sic] commercial unit in order to inspect unit, without his permission, and without property [sic] notice on multiple occasions and interfered with Plaintiff’s business … As a direct and proximate result … Plaintiff suffered monetary damages.”  (Complaint, p. 5.) 

Defendant argues, among other things, that Plaintiff does not indicate whether Defendant’s alleged entries were intentional, reckless or negligent.  The Court agrees. 

The demurrer to the second cause of action is SUSTAINED with 20 days leave to amend.

Third Cause of Action: Intentional Infliction of Emotional Distress

The elements of an IIED claim are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)  Under California law, for conduct to be “outrageous” it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (See Ess v. Eskaton Props., Inc. (2002) 97 Cal.App.4th 120, 130.)  Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)  “Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ”  (Ibid.)  “Severe emotional distress means . . . emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.”  (Fletcher v. Western Nat. Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) 

The Complaint alleges, “Defendants, and each of them, acted in an outrageous manner in his business relationship with the Plaintiff, when they tried to evict the Plaintiff out of his commercial unit on or about September 31, 2023, in contravention of California statute.” (Complaint, p. 6.) “As a direct and proximate result of illegally trying to evict the Plaintiff from his commercial unit, the Plaintiff suffered great emotional upset and distress …” (Id.)

Defendant argues this cause of action fails because Plaintiff was properly evicted in the unlawful detainer action.  The Court agrees.  Moreover, eviction from a commercial unit, without more, does not amount to outrageous conduct. 

The demurrer to the third cause of action is SUSTAINED without leave to amend. 

Fourth Cause of Action: Violation of Business and Profession Code § 17200

“Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.” (Bus. & Prof. Code, § 17203.) “Unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Id., § 17200.)

The Complaint alleges, “Defendants, and each of them, engaged in an unfair business act … when they illegally evicted the Plaintiff out of his commercial unit … without providing the Plaintiff with a 30- or 60-day notice to quit the premises.” (Complaint, p. 7.)

Defendant argues this cause of action fails because Defendant evicted Plaintiff by properly following established California law.  The Court agrees. 

The demurrer to the fourth cause of action is SUSTAINED without leave to amend.

Fifth Cause of Action: Intentional Misrepresentation

To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.”  (Manderville v. PCG&S Group (2007) 146 Cal. App. 4th 1486, 1498.)  Intentional misrepresentation is a cause of action based in deceit and, like fraud, must be specifically pled.  (Id. at 1498, fn. 4.)  That is, allegations in such an action need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically.  (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331; see also Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47.) 

Plaintiff alleges “Defendants, and each of them, made false representations to Plaintiff, that they were going to except [sic] payments for the arrears.” (Complaint, p. 7.) “The Defendants, and each of them when they made these false representations knew them to be false. The Defendants had no intention of honoring the tenancy. The Defendants, and each of them, intended to induce the Plaintiff to act in reliance upon their representations, in an effort to get him to not exercise his legal rights.  Plaintiff did, in fact, justifiably rely on the Defendants’ misrepresentations … As a direct and proximate result of having relied on the defendant’s misrepresentations and deceit, the Plaintiff was damaged …” (Id. at p. 8.)

The Court determines that this cause of action is not specifically pled.  Plaintiff fails to plead who made the misrepresentations, what was said, and when they said it. 

The demurrer to the fifth cause of action is SUSTAINED with 20 days leave to amend. 

Sixth Cause of Action: Intentional Interference with use of Commercial Premises

Plaintiff alleges, “Defendants, and each of them, tortuously and wrongfully, interfered with the plaintiff’s right to conduct business in his commercial unit he had leased, by illegally evicting the plaintiff out of his commercial unit … without first sending them with a three-day notice to pay or quit …” (Complaint, p. 8.)

This cause of action appears to be based on the same factual assertions in the first cause of action for wrongful eviction.  As discussed above, the issue of notice was necessarily decided in the unlawful detainer action; thus, relitigation of the claim is barred by collateral estoppel. 

The demurrer to the sixth cause of action is SUSTAINED without leave to amend. 

Seventh Cause of Action: Breach of Contract and the Covenant of Good Faith and Fair Dealing

The covenant of good faith and fair dealing is implied by law in every contract, and it acts “as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.) 

With respect to this cause of action, the Complaint realleges that Defendant wrongfully evicted Plaintiff from the commercial unit without a three-day notice to quit. (Complaint, p. 9.)

For the reasons discussed above, the demurrer to the seventh cause of action is SUSTAINED without leave to amend.