TENTATIVE RULING

Plaintiff/Cross-Defendant Roberta A. Magid, Trustee of the Roberta A. Magid Living Trust’s Demurrer is SUSTAINED with thirty (30) days leave to amend as to the first, second, and sixth causes of action, OVERRULED as to the fifth cause of action, and SUSTAINED without leave to amend as to the seventh and eighth causes of action.

Defendant/Cross-Complainant Rafael M. Gamon may amend his cross-complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Plaintiff/Cross-Defendant Roberta A. Magid, Trustee of the Roberta A. Magid Living Trust, to give notice. 

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Defendant/Cross-Complainant Rafael M. Gamon (“Defendant”) must state “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

In the first cause of action, Defendant refers to a contract between him and Plaintiff/Cross-Defendant Roberta A. Magid, Trustee of the Roberta A. Magid Living Trust (“Plaintiff”), which is attached as Exhibit B to the cross-complaint. (Cross-Compl. ¶ 25, Ex. B.) The exhibit includes certain redactions, and Defendant appears to have omitted some portions of the agreement given page two starts at paragraph 18, which is important given that Defendant has pled that he has performed all conditions of the agreement, and Plaintiff breached the agreement in certain ways. (Cross-Compl. ¶¶ 26-28.)

Notably, if a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Put simply, Defendant has failed to provide all terms of the written agreement with this claim by his omission of the entire agreement. Thus, Plaintiff’s demurrer to the first cause of action is SUSTAINED with thirty (30) days leave to amend.

Second Cause of Action: Violation of Business and Profession [sic] Code § 17200

To set forth a claim for a violation of Business and Professions Code section 17200, Defendant must establish Plaintiff was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

Defendant alleges that Plaintiff engaged in unlawful, unfair, and fraudulent business practices, and he refers to Plaintiff’s purported unlawful conduct in violation of Civil Code sections 1941 and 1942.4, demanding rent for uninhabitable conditions, retaliating against Defendant, and misrepresenting the condition of the property. (Cross-Compl. ¶¶ 32-35.) Defendant alleges that he suffered harm and lost money or property, but he does not provide any specific allegations to this fact. (Cross-Compl. ¶ 36.) It follows that there is no clear “injury in fact” suffered by Defendant as a result of Plaintiff’s purported general unlawful conduct. (See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 [“injury in fact is ‘an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’”].) Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED with thirty (30) days leave to amend on this basis. Upon amending the cross-complaint, Defendant shall clarify the nature of the harm he suffered as a result of Plaintiff’s purported unlawful business acts.

Fifth Cause of Action: Implied Warranty of Habitability

To establish a breach of the implied warranty of habitability, Defendant must establish (1) “the existence of a material defective condition affecting the premises’ habitability,” (2) “notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,” (3) “the landlord was given a reasonable time to correct the deficiency, and” (4) “resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

In the fifth cause of action, Defendant alleges that Plaintiff failed to maintain the property in a habitable condition, and he complained about leaks, water damage, asbestos, mold, flooring concerns, faulty heating, low water pressure, and general lack of maintenance. (Cross-Compl. ¶¶ 59-60.) Plaintiff contends that Defendant has not pled a specific materially defective condition affecting habitability, but the Court finds these allegations to be sufficient for the purposes of demurrer. Whether these conditions rise to the level of material defective conditions is a question for the trier of fact. Thus, Defendant’s demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action: Harassment: Violation of Civil Code §12120

Defendant alleges that Plaintiff engaged in acts of harassment by making false claims of bounced rent checks, delaying maintenance requests, locking Defendant out of the building, verbally abusing Defendant, attempting to evict Defendant, and falsely accusing Defendant of laundry burglary. (Cross-Compl. ¶ 72.) Defendant cites Civil Code section 12120 as the basis for this claim, but there is no such statute. In his opposition, Defendant clarifies that he relies on Civil Code section 1942.5, which states that a landlord may not retaliate against a tenant because of the tenant’s exercise of rights under that chapter of the Civil Code or because the tenant’s complaint to an appropriate agency as to tenantability. First, the claim cites the wrong statute; second, the specific nature of Defendant’s exercise of rights under the Code are unclear, and there are no allegations that Defendant complained to an appropriate agency, as he alleges only that he complained to Plaintiff. For these reasons, Defendant’s demurrer to the sixth cause of action is SUSTAINED with thirty (30) days leave to amend.

Seventh Cause of Action: Breach of Implied Covenant of Quiet Enjoyment

The elements of a claim for breach of the covenant of quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which “substantially interfere[s] with a tenant[’]s right to use and enjoy the premises for the purposes contemplated by the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)

Notably, Defendant does not allege that he has vacated the unit or been evicted in any way, and it would appear that Defendant remains in possession of the unit. (See Cross-Compl. ¶ 14.) There is no tort claim available based on the breach of the covenant of quiet enjoyment when the tenant remains in possession of the premises. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 901.) “[When the landlord has breached the implied covenant of quiet enjoyment, but the tenant remains in possession of the premises, the tenant’s remedy is to sue for breach of contract damages.” (Id. at p. 902, quotation marks omitted.) In his opposition, Defendant appears to concede that he has not vacated the unit. Thus, there is no claim for breach of the covenant of quiet enjoyment, and Defendant’s demurrer to the seventh cause of action is, therefore, SUSTAINED without leave to amend.

Eighth Cause of Action: Unjust Enrichment

“The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769, quotation marks and citations omitted.)

Notably, “[u]njust enrichment is not a cause of action”; it is simply “a restitution claim.” (Hill v. Roll International Corp. (2011) 195 Cal.App.4th 1295, 1307; see also Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [“there is no cause of action in California for unjust enrichment”].) Defendant does not allege anything different in this claim that is not pled in his other causes of action. Accordingly, Defendant’s demurrer to the eighth cause of action is SUSTAINED without leave to amend.