Judge Margaret L. Oldendorf, Case Number: 22BBCV00019, Date: 2023-09-11 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22BBCV00019, Date: 2023-09-11 Tentative Ruling

This litigation concerns a commercial lease. Plaintiffs Diamond Dream Production, Inc., and Simin Hashemizadeh (Tenants) leased commercial property from Defendants Raffi Paichuk and Silva Baghdasarian (Landlords). The lease was for five years. In December 2019, near the end of the term, there were discussions between Hashemizadeh and Landlords which resulted in the parties agreeing to renew for a second five-year term.

Shortly after renewal of the lease the Covid-pandemic hit. In the main action, Tenants allege that in April 2020 and April 2021they wrote to Defendants about the need for rent relief under protections afforded to tenants in Los Angeles County. They allege that despite this, they discovered in January 2022 that Landlords had wrongfully changed the locks and taken back possession of the premises, upon which they had expensive personal property. Tenants also allege that they would not have signed a new five-year lease but for Landlords’ assurance that they would cooperate in Tenant’s efforts for a zoning permit, which Landlord then failed to provide.

In their cross-complaint, Landlords allege that during the lease renewal conversation, Tenants said they would use the property for a lawful purpose, when in fact they used it for an illegal one. The cross-complaint alleges that Tenants ripped out flooring and walls and used the property to grow illicit substances, causing mold damage. Landlords sued for property damage, breach of contract, and fraud. In a prior order a demurrer to the “property damage” cause of action was sustained; and a demurrer to the fraud claim was overruled. Landlords filed a First Amended Cross-Complaint on May 22, 2023.

The First Amended Cross-Complaint (FAXC) alleges a claim for negligence, which Tenants now demur. While perhaps mislabeled, the pleading contains facts sufficient to constitute a cause of action for waste. The demurrer is therefore overruled.

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247. Pleadings are to be broadly construed (Code Civ. Proc. §452) and demurrers are to be overruled where the facts are sufficient to state any cause of action. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.

The FAXC concerns a commercial lease of real property located at 5535 Cahuenga Blvd. in North Hollywood. Attached as an exhibit to the pleading is the original lease (dated March 25, 2015) for a five-year term ending March 31, 2020, and lease extension with new five-year term, dated December 20, 2019.

The form pleading alleges claims for Negligence, Breach of Contract, and Fraud. At issue is the negligence cause of action. Landlords allege that Tenants owed a duty to occupy the property with ordinary care and to use it as a reasonable person would. It is alleged that Tenants ripped out flooring material, ripped out walls, removed and disposed of fixtures, and used the interior of the commercial property to grow illicit substances, causing mold growth. Landlords allege that Tenants caused damage to the real property in an amount to be proven at trial. Landlords further allege that Tenants’ conduct was retaliatory, malicious, and intentional.

Prior to filing a demurrer, the demurring party must meet and confer in person or by telephone. A declaration attesting that this occurred must accompany the demurrer. Code Civ. Proc. §430.31(a). The Declaration of Sherri Shafizadeh states that she wrote an email to Cross-Defendants’ counsel, Adam Apollo, requesting his availability for a telephone call. That email is attached as Exhibit A. Shafizadeh avers that Apollo did not respond.

Attached to Landlords’ opposition brief is a copy of Apollo’s email response to Shafizadeh’s email. It contains his response to Shafizadeh’s legal arguments but does not indicate that he made himself available for a telephone call. In other words, neither side made much effort to have a telephone call. However, it was moving party’s burden to make that happen or to say that the other party refused. The Shafizadeh Declaration falls short in this regard.

Failure to comply with the meet and confer requirement is not a sufficient basis for overruling a demurrer, however. Code Civ. Proc. §430.41(a)(4). To the extent Tenants’ counsel failed to sufficiently meet and confer prior to filing the demurrer, this alone does not provide a basis for the ruling.

It appears that counsel prefer to communicate by email but do not have a sufficiently professional relationship to converse in person or by telephone. The Court admonishes both attorneys to work on this problem.[1]

Also concerning, the opposition brief opens by stating that Landlords were not served with the demurrer and only found it by chance. It would have been helpful for Mr. Apollo to offer a declaration on this issue. The Court notes that the demurrer was served via email. Unless Mr. Apollo has requested that he be served electronically and provided an electronic address for service, then the demurrer was not validly served. Code Civ. Proc. §1010.6(b)(4); California Rules of Court, rule 8.78. The Tenants’ reply memorandum (labeled an “Objection”) does not directly confirm whether the parties have agreed to electronic service. Nevertheless, the Court will proceed to consider the demurrer on its merits, as well as the opposition and reply.

Tenants raise one procedural argument and two substantive arguments in their demurrer to the FAXC. Procedurally, Tenants urge that the amended pleading goes beyond what the Court permitted when it sustained the last demurrer with leave to amend. The Court disagrees. Tenants are correct that a pleading may only be amended as authorized following a demurrer ruling. Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”]. In their original Cross-Complaint, Landlords alleged a claim labeled “Property Damage.” In the FAXC, this cause of action is now labeled “Negligence,” but it is based on essentially the same facts. Landlords have not impermissibly added a cause of action without leave of court.

Substantively, Landlords argue the facts alleged are insufficient to state a cause of action. Specifically, they argue that no facts are alleged that would show a duty owed by Hashemizadeh, or any breach of duty. Landlords urge that Hashemizadeh was merely the guarantor on the lease. This argument is not well-taken in light of the admission in Tenants’ operative First Amended Complaint that as a result of Hashemizadeh signing as guarantor, the relationship between Plaintiffs and Defendants was as tenant and landlord. FAC at ¶8. Tenants further argue that there are no facts alleging any conduct on the part of Hashemizadeh amounting to a breach of duty. But the FAXC alleges joint conduct on the part of Cross-Defendants. This allegation must be accepted as true for purposes of demurrer.

Landlords also argue that the negligence cause of action is duplicative of the breach of contract claim, and therefore superfluous. That may be true if the lease contains terms governing Tenants’ obligations towards the real property. Landlords do not point out any such terms in their demurrer.

What is alleged in the negligence cause of action is intentional, even malicious, conduct. Such conduct may or may not constitute negligence. But, that is not a valid basis for sustaining a demurrer.

“Where the demurrer is based on the pleading not stating ‘facts sufficient to constitute a cause of action, the rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.’ [Citation.] In other words, ‘plaintiff need only plead facts showing that he may be entitled to some relief [citation].’ [Citation.]” New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714. A demurrer may be sustained only where a pleading fails to state a cause of action “under any possible legal theory.” Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998. “Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.” Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.

Negligence may or may not be the proper theory here; but the facts alleged in the FAXC indicate that Landlords may be entitled to some relief. A more viable legal theory may be waste. See for example Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183. To the extent the cause of action is mislabeled, the label must be ignored. The demurrer is overruled.

The demurrer by Cross-Defendants to the negligence cause of action in the First Amended Cross-Complaint is overruled.

Cross-Defendants are granted 10 days to answer. Cross-Complainants are ordered to provide notice of this ruling.

[1] The Court recommends that counsel review the Guidelines For Civility In Litigation, which are attached as Appendix 3.A. to the Los Angeles Superior Court Rules (Civil Division).