Judge: Mark H. Epstein, Case: 24SMCV04999, Date: 2025-01-08 Tentative Ruling

Case Number: 24SMCV04999    Hearing Date: January 8, 2025    Dept: I

This is an odd case.  Defendant has filed a demurrer and also an SMS (which is not on today’s calendar).  Plaintiffs elected to amend the complaint rather than oppose the demurrer.  That is fine, as far as it goes, but the defense notes that one cannot amend to avoid an SMS.  A plaintiff opposing an SMS must oppose it based on the operative complaint at the time. 

The gist of the complaint is that plaintiff, John Dean, moved into a unit in 1988.  He later married Ruth Dean and lived there with his wife for a number of years until they separated.  He later had a stroke and his former wife stepped in to help.  In 2022, they re-initiated their relationship.  At some point, they tendered the rent but defendant allegedly refused to accept it, telling Ruth that she needed to fill out a new tenant form.  She did so, but the rent was refused anyway.  When John (the court uses first names because of the common last name; no disrespect is intended) asked why, plaintiffs allege that the landlord could not explain it.  Plaintiffs told the landlord that they were in a domestic partnership and gave the landlord a copy of the paperwork, but purportedly it did not matter.  Plaintiffs allege that they have been trying to pay the rent, but that the landlord has not accepted the rent.  On June 6, 2023, the landlord wrote a letter saying that Ruth would not be approved as a tenant.  On July 2, 2023, John and Ruth remarried.  They allege that when they told the landlord, the landlord did not care.  John claims that at one point he tripped and had to go to a rehab facility.  He intends to return.  But on January 11, 2024, plaintiffs got a letter threatening eviction and eventually the landlord filed a UD case.  Plaintiffs successfully obtained summary judgment and the UD case is now on appeal.  Plaintiffs filed the instant suit, claiming that the landlord’s actions violated the Santa Monica Municipal Code section 4.56, which bars a landlord from harassing a tenant.  According to plaintiffs, by taking the actions just described, including filing the UD action, when the landlord knew that there was no basis therefor, the landlord harassed plaintiffs.  The landlord demurs and brings an SMS.  Before the court today is the demurrer.

The basis for the demurrer is the litigation privilege.  Civil Code section 47 provides that one has a privilege with regard to litigation conduct.  That includes filing a complaint and all of the papers associated with the case.  The only civil exception to that rule is a suit for malicious prosecution (or maybe abuse of process).  But this is not that.  First, plaintiffs are not suing for malicious prosecution.  Second, plaintiffs cannot sue for malicious prosecution, at least not until and unless the judgment is affirmed on appeal.  Plaintiffs may argue that the Santa Monica ordinance is another exception to the litigation privilege, but that has not been briefed. 

However, because plaintiffs believed that they could amend (and because defendant’s meet and confer email was sent to a spam folder), they never opposed the demurrer.  The court agrees with the defense that plaintiffs cannot amend.  The court had thought about holding the demurrer to be moot but allowing the SMS to go forward, but that does not work because there can only be one operative pleading at a time.  Accordingly, the court believes that the better thing to do is to continue the demurrer to February 11, 2025, the date of the SMS, or perhaps to a later date and move the SMS.  That way, the demurrer and the SMS can be heard together, but plaintiffs will need to justify their case based on the original pleading.  The court can, under some circumstances, allow an amendment to defeat an SMS, but generally it is not done and the question whether this is such a case is better addressed then.

The matter is therefore CONTINUED to February 11, 2025.