Judge Mark E. Windham, Case Number: 23STLC02319, Date: 2023-09-14 Tentative Ruling

Judge: Mark E. Windham, Case: 23STLC02319, Date: 2023-09-14 Tentative Ruling

Case Number: 23STLC02319 Hearing Date: February 26, 2024 Dept: 26

Wade v. LA Housing Solutions, LLC, et al.

JUDGMENT ON THE PLEADINGS

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendants LA Housing Solutions, LLC, Peerless Apartments, LLC, and Marc A. Schneider’s Motion for Judgment on the Pleadings is DENIED. DEFENDANTS ARE TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Gizella Wade (“Plaintiff”) filed the instant action for habitability violations, nuisance, negligence, and breach of contract against Defendants LA Housing Solutions, LLC, Peerless Apartments, LLC, and Marc A. Schneider (“Defendants”) on April 10, 2023. Defendants filed a Demurrer to, and Motion to Strike Portions of, the Complaint on May 15, 2023. The Demurrer was sustained with leave to amend on September 14, 2023 and the Motion to Strike was placed off calendar. (Minute Order, 09/14/23.)

Plaintiff filed the First Amended Complaint on October 2, 2023, alleging a single cause of action for bad faith retention of security deposit in violation of Civil Code section 1950.5. Defendants filed the instant Motion for Judgment on the Pleadings on January 25, 2024. Plaintiff filed an untimely opposition on February 20, 2024; the filing deadline was February 9, 2024. (Code Civ. Proc., § 1005, subd. (b).) Nor is the opposition accompanied by a proof of service demonstrating that it was served on Defendants, as required by the notice statute. (Ibid.) Accordingly, the Court will not consider the opposition papers.

Discussion

The First Amended Complaint alleges that Plaintiff was a tenant of 231 North La Peer Drive #106, Beverly Hills California (“the Premises”) pursuant to a lease agreement with Defendant LA Housing Solutions, LLC. (FAC, ¶7.) The monthly rental rate was $3,598.00 for a period of one year, with the term to begin on August 11, 2022. (Ibid.) Plaintiff provided the sum of $6,396.00 as a security deposit. (Id. at ¶8.) Pursuant to an agreement for early termination of the lease, Plaintiff vacated the Premises on November 3, 2022. (Id. at ¶9.) Although more than nine months have passed since Plaintiff vacated the Premises, the First Amended Complaint alleges that “Defendants have failed and refused, and continues to fail and refuse, to provide Plaintiff with an itemized statement detailing a lawful basis for Defendant’s retention of said sums of Plaintiff’s security deposit, and the amount of any security received and the disposition of the security, and has also failed and refused, to return the said sums of the security deposit given to them by the Plaintiff despite several demands to Defendants.” (Id. at ¶11.) This failure by Defendants violates Civil Code section 1950.5(l). (Id. at ¶¶10, 12.) As a result of the violation, Plaintiff has suffered actual damages in the amount of $5,515.80. (Id. at ¶13.)

The Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 438. (Motion, Tatikian Decl., ¶¶2-4 and Exhs. 1-2.) In support of the Motion, Defendants request that the Court take judicial notice of the following documents: (1) the Mutual Release agreement, executed on October 24, 2022; (2) Email correspondence from Plaintiff to Defendant Schneider on December 6, 2022 advising that she received her security deposit; and (3) Plaintiff’s verified responses to Form Interrogatories, Set One. The Court takes judicial notice of the documents pursuant to Cal. Evidence Code section 452, subdivisions (g) and (h). (See Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 573 [holding that “The existence and contents of a written agreement may be the proper subject of judicial notice if there is no factual dispute that the document is genuine and accurate.”].)

Defendants move for judgment on the pleadings on the grounds that the parties executed a Mutual Release and Lease Termination Agreement (“the Release Agreement”) pursuant to which Plaintiff agreed to release Defendants from any and all obligations arising from the lease and tenancy. Under the Release Agreement Plaintiff “agree[d] to release Beverly Hills Apartments LLC, LA Housing Solutions LLC, and all related entities and owners, from any and all obligations arising from the lease and tenancy following her move-out on October 31, 2022.” (Motion, RJN, Exh. A.) The Release also states that “the undersigned” is subject to a waiver of rights under Civil Code section 1542, which protects the releasing party against the release of claims they do not know or suspect to exist at the time of signing. (Ibid; Civ. Code, § 1542.)

Defendants first argue that the Release Agreement covers all the claims in this action because it includes a broad general release of “any claims arising out of, based upon, or relating to, any and all claims arising from the parties’ landlord tenant dispute, which alleged liability is disputed and denied.” (Motion, RJN, Exh. A.) The Release Agreement also includes a waiver of rights under Civil Code section 1542, barring claims of which the parties were unaware at the time the Release Agreement was executed. (Ibid.) However, the Release Agreement expressly excludes claims brought pursuant to Civil Code section 1950.5 from its terms. (Ibid.) As the First Amended Complaint is brought solely under Civil Code section 1950.5, Defendants have not shown from the face of the First Amended Complaint and the request for judicial notice that they are subject to the Release Agreement and the waiver of rights.

Next, Defendants point out that Plaintiff’s email communication dated December 6, 2022 and verified responses to Form Interrogatories, Set One, to argue that Plaintiff admits receipt of the security deposit on December 2, 2022. (Motion, RJN, Exh. B and Exh. C, pp. 4-5.) These documents, however, also fail to show that the claim under Civil Code section 1950.5 is barred. Plaintiff’s email states that she received the deposit on December 2, 2022. (Id. at Exh. B.) This was not within 21 days of the alleged date Plaintiff vacated the apartment, November 3, 2022. (FAC, ¶9.) The email also does not indicate that Plaintiff received an itemized statement detailing a lawful basis for Defendant’s retention of said sums of Plaintiff’s security deposit, and the amount of any security received and the disposition of the security, which are also alleged violations of Civil Code section 1950.5, subdivision (1). Indeed, Plaintiff’s interrogatory responses expressly reiterate these violations. (Id. at Exh. C, p. 4, Response 17.1.)

Therefore, Defendants have not demonstrated the existence of judicially noticeable facts that contradict the allegations in the First Amended Complaint or otherwise bar Plaintiff from alleging a claim under Civil Code section 1950.5.

Conclusion

Court clerk to give notice.