Judge Lynette Gridiron Winston, Case Number: 23PSCV02568, Date: 2023-12-11 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV02568, Date: 2023-12-11 Tentative Ruling

1. Defendant John Stewart Company’s Demurrer to Plaintiff’s Complaint; and

2. Defendant John Stewart Company’s Motion to Strike Plaintiff’s Complaint

The Court SUSTAINS the Demurrer to the First, Second and Third Causes of Action of the Complaint with leave to amend.

Plaintiff is ordered to file and serve an amended pleading and provide proof of service of same within twenty calendar days of the Court’s order.

On August 24, 2023, plaintiff Veda Scott (Plaintiff) filed this action against defendant John Stewart Company (Defendant), alleging causes of action for “elderly abuse fraudulent charges,” “dirty conditions in senior living that they manage,” and “stress and duress, retaliation three day notice.”

On November 9, 2023, Defendant filed a demurrer and motion to strike to the Complaint. No opposition has been filed.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

A demurrer and motion to strike generally must be served at least 16 court days before the hearing on those motions. (Code Civ. Proc., § 1005, subd. (b).) That deadline is extended by five days if they are served by mail. (Id.) The hearing date for the demurrer and motion to strike is December 11, 2023. Under Code of Civil Procedure section 1005, subdivision (b), sixteen court days would create a filing and service deadline of November 15, 2023. (Code Civ. Proc., § 1005, subd. (b).) Service by mail changes the deadline to November 10, 2023. (Id.)

Defendant did not timely file the demurrer or motion to strike with the Court. Defendant served the demurrer and motion to strike on Plaintiff by mail on November 9, 2023, (see Proofs of Service attached to Demurrer and Motion to Strike),[1] but did not file those motions with the Court until November 16, 2023. Nevertheless, Plaintiff has not opposed the motion and did not raise any objections on this issue, so the argument is waived. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10; see also Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 ["[T]he appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.") Regardless, the Court admonishes Defendant to comply with the timing requirements of the Code of Civil Procedure going forward.

However, the Court also notes that the notice states that the hearing will take place in Department 6, at 111 N. Hill Street, Los Angeles, CA. This matter is set for hearing in Department 6, at 1427 West Covina Parkway, West Covina, CA. Thus, notice was not properly given. The Court will address this issue at the hearing depending on whether or not Plaintiff appears. Notwithstanding the incorrect address, Plaintiff did not file any opposition to the demurrer or motion to strike and Plaintiff filed this action and was given notice upon filing that the case was assigned for all purposes to Department 6 in West Covina.

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendant’s efforts to meet and confer to be sufficient. (Cain Decl., ¶ 3.)

To state a cause of action for financial elder abuse, the plaintiff must allege facts demonstrating the defendant has taken, secreted, appropriated, or retained “real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both. A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith. Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative. (Welf. & Inst. Code, § 15610.30.)” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174.) Elder abuse claims must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Defendant demurs to Plaintiff’s first cause of action for elder abuse on the grounds that the Complaint fails to allege facts that state a cause of action and is uncertain. Defendant contends the facts as alleged in the Complaint do not warrant a cause of action for financial elder abuse, as it contains no evidence that Defendant took or retained any property belonging to Plaintiff. The Court agrees.

The extent of Plaintiff’s allegations are essentially that Defendant installed solar panels on the roof of the “Senior Complex” and later billed Plaintiff for it in the amount of $325.00. (Compl., ¶ 3.) The Complaint does not allege that she owns the property where the solar panels were installed. The Court also notes that the Complaint does not allege Plaintiff’s age to demonstrate that she is an elder for purposes of an elder abuse claim. (See Welf. & Inst. Code § 15610.27.) The remaining allegations are unclear as to what Plaintiff means or as to how such allegations are relevant to Plaintiff’s claim for elder abuse. Therefore, the Complaint fails to plead facts with the requisite particularity to state a cause of action for elder abuse. (See Carter, supra, 198 Cal.App.4th at pp. 406-407.)

Accordingly, the Court SUSTAINS the demurrer to the First Cause of Action with leave to amend.

To state a cause of action for breach of the implied warranty of habitability, the plaintiff must allege facts demonstrating, “the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.” (Peviani v. Arbors at California Oaks Prop. Owner, LLC (2021) 62 Cal.App.5th 874, 891.)

Defendant demurs to the Second Cause of Action for “dirty conditions” on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. Defendant contends there is no cause of action for “dirty conditions.” Defendant further contends that to the extent Plaintiff is attempting to allege breach of the implied warranty of habitability, this cause of action fails because the Complaint fails to allege that she advised Defendant of the allegedly dirty living conditions and that Defendant had an opportunity to cure it. Defendant also contends that the Complaint does not allege facts showing that the dirty living conditions are so material that they affect the premises’ habitability. The Court agrees.

Defendant correctly asserts that there is no such cause of action known as “dirty conditions.” However, the label of the cause of action is irrelevant; what matters is whether the facts alleged state a cause of action. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1371.) The Court reads Plaintiff’s allegations as a cause of action for breach of the implied warranty of habitability. Nevertheless, Defendant is also correct that the Complaint fails to allege facts describing the uninhabitable living conditions, that Plaintiff gave Defendant notice of any alleged dirty living conditions and whether such dirty living conditions were material defects. (See Compl., ¶ 4; Peviani, supra, 62 Cal.App.5th at p. 891.)

Based on the foregoing, the Court SUSTAINS the demurrer as to the Second Cause of Action with leave to amend.

Civil Code Section 1942.5, subdivision (c) creates a cause of action against a landlord who “bring[s] an action to recover possession … for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law.” Subdivision (f) of the statute states, “Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following: (1) The actual damages sustained by the lessee. (2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.” The landlord can defend against an action for retaliatory eviction by showing that it acted for “any lawful cause” (§ 1942.5, subd. (d)) or “in good faith” (id., subd. (e)).

In addition to a statutory cause of action for retaliatory eviction, a common law cause of action exists as well. (Banuelos, supra, 219 Cal.App.4th at p. 328.) To state a common law cause of action for retaliatory eviction, a plaintiff must allege facts demonstrating that the landlord’s conduct caused the tenant to involuntarily vacate the property. (Id.)

Defendant demurs to the Third Cause of Action for harassment and retaliation on the grounds that it fails to state a cause of action and is uncertain. Defendant contends it is unable to respond to the allegations of the Complaint because they are incomprehensible. Defendant contends it is unclear whether Plaintiff’s claim for retaliation is the statutory version or the common law version, and notes that it is unclear whether Plaintiff has alleged that she has been involuntarily evicted from the premises. The Court agrees.

Again, as noted above, the label of the cause of action does not matter here; it is the allegations that matter. (Alfaro, supra, 171 Cal.App.4th at p. 1371.) Accordingly, the Court reads the Complaint as purporting to allege a cause of action for retaliatory eviction. Nevertheless, the Court agrees with Defendant that the allegations for this cause of action are difficult to comprehend. The majority of the allegations in the Complaint are presented in a rambling fashion and do not appear to have any bearing on a claim for retaliation. (Compl., ¶¶ 5-7; see Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73 [demurrer for uncertainty upheld where complaint attempted to state numerous causes of action in a “very loose and rambling manner without any attempt at separately stating them.” )

The Court notes that paragraph 8 of the Complaint contains some allegations that potentially relate to a claim for retaliatory eviction. Plaintiff appears to allege that Defendant retaliated against her by attempting to evict her for previously filing a small claims case against Defendant and for requesting Defendant replace the carpet. (Compl., ¶ 8.) But, as Defendant noted, the Complaint does not appear to allege that Plaintiff involuntarily vacated the premises due to Defendant’s conduct, which is a necessary allegation for common law retaliation. (Banuelos, supra, 219 Cal.App.4^th at p. 328.) Also, the Complaint is unclear whether Plaintiff is claiming statutory retaliation or common law retaliation. Plaintiff must allege more facts to clarify which kind of retaliation claim Plaintiff seeks.

Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action for retaliation with leave to amend.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

Per Code of Civil Procedure section 435.5, subdivision (a), Defendants were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendant’s efforts to meet and confer to be sufficient. (Cain Decl., ¶ 3.)

Given the Court sustaining the demurrer to the Complaint with leave to amend as set forth above, the Court the Court DENIES Defendants’ motion to strike as moot.

The Court SUSTAINS the Demurrer to the First, Second and Third Causes of Action of the Complaint with leave to amend.

Plaintiff is ordered to file and serve an amended pleading and provide proof of service of same within twenty calendar days of the Court’s order.

[1] The Court also notes that the proof of service attached to the demurrer only indicates that the notice of demurrer and demurrer were served on Plaintiff; it does not list the memorandum of points and authorities or the declaration of Jinny A. Cain. (See Proof of Service attached to Demurrer.) The Court infers this was a typo considering that the notice, demurrer, memorandum, and declaration are all one document and the proof of service attached to the motion to strike lists all of the documents served for the motion to strike. (See Proof of Service attached to the Motion to Strike.)