Judge Mark E. Windham, Case Number: 23STLC06329, Date: 2024-03-07 Tentative Ruling

Judge: Mark E. Windham, Case: 23STLC06329, Date: 2024-03-07 Tentative Ruling

Case Number: 23STLC06329 Hearing Date: March 7, 2024 Dept: 26

Gibson v. Edina Fitness, LLC, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendants Edina Fitness, LLC and Linda Cuyar’s Demurrer to the First Amended Complaint is OVERRULED AS TO DEFENDANT EDINA FITNESS, LLC FOR THE FIRST CAUSE OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO DEFENDANT LINDA CUYAR FOR THE FIRST CAUSE OF ACTION. THE DEMURRER IS ALSO SUSTAINED WITHOUT LEAVE TO AMEND AS TO BOTH DEFENDANTS FOR THE SECOND AND THIRD CAUSES OF ACTION.

ANALYSIS:

Plaintiff Walter Gibson (“Plaintiff”), in pro per, filed the instant action for breach of contract, negligence, and infliction of emotional distress against Defendants Edina Fitness, LLC (“Defendant EF”) and Linda Cuyar (“Defendant Cuyar”) on October 3, 2023. Plaintiff filed the First Amended Complaint on December 6, 2023. Defendants filed the instant demurrer to the First Amended Complaint on February 7, 2024. Plaintiff filed an opposition on February 26, 2024 and Defendant replied on February 29, 2024.

Discussion

Defendants demur to the First Amended Complaint for failure to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) The Demurrer is accompanied by a meet and confer declaration that complies with Code of Civil Procedure section 430.41. (Demurrer, Truong Decl., ¶¶3-4 and Exh. A.)

The First Amended Complaint alleges the parties settled an unlawful detainer action brought by Defendant EF against Plaintiff on July 7, 2023 pursuant to a Stipulation and Judgment. (FAC, ¶¶8-9.) The parties stipulated that (1) any personal property left behind after Plaintiff vacated the premises would have zero value and could be disposed of; (2) Plaintiff would not destroy or damage property beyond ordinary wear and tear; (3) no further motions for extension or delay in enforce of the judgment would be granted; (4) the record would be sealed on condition that Plaintiff vacated the premises by July 19, 2023. (Id. at ¶10) Plaintiff vacated the premises on July 18, 2023 and put in an application to lease an apartment at The Palm Apartment, located at 15120 Victory Boulevard, Van Nuys, California. (Id. at ¶11.) Plaintiff was interviewed by the apartment manager, Elizabeth [last name unknown] who thereafter indicated that everything with the application was fine but she needed to contact Plaintiff’s prior landlord, Defendant Cuyar. (Id. at ¶12.) On August 14, 2023, Elizabeth [last name unknown] called Defendant Cuyar, who informed her that Plaintiff had suffered an eviction. (Id. at ¶13.) Defendant Cuyar knew that Plaintiff had timely vacated the premises and that the eviction was to be sealed. (Id. at ¶14.) Defendant Cuyar knowingly informed Elizabeth [last name unknown] of the eviction, knowing it would prevent Plaintiff from obtaining an apartment, and Plaintiff was so prevented. (Id. at ¶¶14-15.) The same thing happened when Plaintiff filed an application for an apartment of E&G Management in October 2023. (Id. at ¶¶16-21.)

Defendants also request that the Court take judicial notice of (1) the Unlawful Detainer Stipulation and Judgment filed on July 7, 2023, in the case entitled Edina Fitness, LLC v. Walter Gibson identified by Los Angeles Superior Court Case No. 23VEUD00498; and (2) the search results conducted on the Los Angeles Superior Court website at https://www.lacourt.org/casesummary/ui/ on February 6, 2024, for Case No. 23VEUD0049. The request is granted with respect to the existence of these documents but not as to the truth of their contents, as explained by the Court of Appeals:

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid.Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. (Post v. Prati (1979) 90 Cal.App.3d 626, 633, 153 Cal.Rptr. 511.) Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9, 84 Cal.Rptr.2d 843, 976 P.2d 214.) StorMedia stated: “In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [228 Cal.Rptr. 878].)” (Ibid.)

Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at page 374, 228 Cal.Rptr. 878 stated: “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook–Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038 [96 Cal.Rptr. 338].) On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) ‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605 [176 Cal.Rptr. 824].)” Joslin, supra, at page 375, 228 Cal.Rptr. 878 stated further, “ ‘judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.’ (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 [219 Cal.Rptr. 661].)”

. . .

For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer. (StorMedia, Inc. v. Superior Court, supra, 20 Cal.4th at p. 457, fn. 9, 84 Cal.Rptr.2d 843, 976 P.2d 214; Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 374, 228 Cal.Rptr. 878.) In short, a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.

(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113–115 [emphasis added].)

1st Cause of Action for Breach of Contract

The first cause of action for breach of contract alleges that Defendants breached the settlement agreement by informing other property managers of his eviction. (FAC, ¶25.) In support of the demurrer, Defendants first argue that Plaintiff has not attached a copy of the agreement or alleged its terms verbatim. Neither is required, however, as a contract may be alleged by its legal effect. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) Plaintiff has sufficiently alleged the terms of the agreement and the parties’ obligations. (See FAC, ¶10.) Defendants also demur on the grounds that there is no provision of the settlement agreement that barred Defendant Cuyar from telling other property managers about Plaintiff’s eviction. In opposition, Plaintiff argues that the provision sealing the unlawful detainer record barred Defendants from publicly disclosing the eviction, as alleged in the First Amended Complaint. The Court finds Plaintiff’s allegation of the sealed record sufficiently states a basis for barring Defendants from disclosing the eviction, for purposes of ruling on the demurrer. As explained above, on demurrer, the Court cannot take judicial notice of the meaning ascribed by Defendants to the sealing provision in the settlement agreement.

However, the Court does find that the First Amended Complaint does not allege a basis for liability against Defendant Cuyar in her individual capacity. (See Civ. Code, § 2338 [“a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.”].) No facts are alleged in the First Amended Complaint to show that Defendant Cuyar was acting in her individual capacity with respect to entering the agreement or communicating with the other property managers. Therefore, the demurrer to the first cause of action is overruled as to Defendant EF and sustained as to Defendant Cuyar.

2nd Cause of Action for Negligence

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Koepke v. Loo (1993) 18 Cal. App. 4th 1444, 1448-1449.) The duty cannot arise from a contractual obligation; it must arise from an independent tort obligation. (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) Plaintiff does not allege, nor argue, what independent tort duty gives rise to Defendants’ obligation not to disclose the eviction. Defendants also argue that the negligence cause of action is barred by the economic loss rule, which bars claims in negligence for purely economic losses. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.) Accordingly, the demurrer to the second cause of action is also sustained.

3rd Cause of Action for Intentional Infliction of Emotional Distress

The third cause of action for intentional infliction of emotional distress requires facts alleging (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 suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) The behavior must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. (Trerice v. Blue Cross of Cal. (1989) 209 Cal. App. 3d 878, 883.) The First Amended Complaint does not allege extreme and outrageous conduct by Defendants. Defendant Cuyar’s disclosure of Plaintiff’s eviction, while allegedly in contravention of the terms of the settlement agreement, does not rise to the level of atrocious conduct. Therefore, the demurrer to the third cause of action is also sustained.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment, however, the burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Regarding the causes of action for which the demurrer was sustained, Plaintiff’’ oppositions provide no information demonstrating additional facts can be alleged to amend those claims. Therefore, leave to amend is denied.

Conclusion

Moving party to give notice.