Judge: Maurice A. Leiter, Case: 24STCV16158, Date: 2024-09-19 Tentative Ruling

Case Number: 24STCV16158    Hearing Date: September 19, 2024    Dept: 54

Hearing Date: September 19, 2024

Department 54, Judge Maurice Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendants Robert J. Barbera, Barbera Family Limited Partnership, Barbera Management, Inc., and Barbera Enterprises, LLC

Responding Party: Plaintiffs Joaquim Teixeira and Sahar Moheize

T/R:     DEFENDANTS’ DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

DEFENDANTS TO NOTICE

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition and reply.

BACKGROUND

On June 27, 2024, Plaintiffs Joaquim Teixeira and Sahar Moheize sued Defendants Robert J. Barbera, Barbera Family Limited Partnership, Barbera Management, Inc., and Barbera Enterprises, LLC, asserting causes of action for (1) breach of Civil Code § 1950.5; (2) breach of the warranty of quiet enjoyment; (3) constructive eviction; (4) conversion; (5) trespass to chattel; (6) fraud; (7) UCL violations; (8) breach of the covenant of good faith and fair dealing; (9) intentional misrepresentation; (10) intentional infliction of emotional distress; (11) negligence; (12) negligent infliction of emotional distress; (13) breach of contract; (14) declaratory relief; and (15) injunctive relief.

Plaintiffs, former tenants of a unit owned by Defendants, allege the tenants in the neighboring unit shot at Plaintiffs through their shared wall. Plaintiffs allege they immediately vacated the unit, living in hotels and with friends for two months. Plaintiffs allege that Defendants wrongfully withheld their security deposit, deducting various “fees” for maintenance that was either not needed or not caused by Plaintiffs.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Fourth and Fifth Causes of Action for Conversion and Trespass to Chattels

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “[T]respass to chattels ‘lies where an intentional interference with the possession of personal property has proximately caused injury.’” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350-51 (quoting Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566).)

Defendants assert the fourth and fifth causes of action fail because real property cannot be converted and because the lease allows for deduction of expenses from the security deposit to return the unit to the same condition as when Plaintiffs moved into the unit. As stated, Plaintiffs allege Defendants wrongfully deducted expenses for repairs of conditions that were present at the time Plaintiffs moved in. This is sufficient to allege conversion of Plaintiffs’ security deposit.

The demurrer to the fourth and fifth causes of action is OVERRULED.

C. Sixth and Ninth Causes of Action for Fraud and Intentional Misrepresentation

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

Defendants demur to the sixth and ninth causes of action on the ground Plaintiffs have failed to allege fraud with the requisite specificity. Plaintiffs allege Defendants represented that an illegal $300.00 “maintenance fee” would be the only fee deducted from their security deposit. Plaintiffs allege that Defendants deducted additional fees and the deducted fees were not used for the purposes stated by Defendants. This is sufficient to allege intentional misrepresentation.

The demurrer to the sixth and ninth causes of action is OVERRULED.

D. Tenth Cause of Action for Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

Defendants assert the tenth cause of action fails because Plaintiffs have not alleged extreme and outrageous conduct. Plaintiffs allege Defendants did not properly respond to their complaints about the tenant who shot at them through the shared wall, required Plaintiffs to pay rent despite having to move out over fear of their safety from the other tenant, and misrepresented the nature of the deductions of their security deposit. This is sufficient to allege intentional infliction of emotional distress.

The demurrer to the tenth cause of action is OVERRULED.

E. Motion to Strike

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “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 asserted 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." (CCP § 436.)

Defendants move to strike Plaintiffs’ prayers for punitive damages. As Plaintiffs have sufficiently alleged fraud and intentional infliction of emotional distress, Plaintiffs have sufficiently alleged grounds for punitive damages.

The motion to strike is DENIED.