Judge: Mel Red Recana, Case: 20STCV20375, Date: 2024-03-13 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 20STCV20375 Hearing Date: March 7, 2024 Dept: 45
Hearing date: March 7, 2020
Moving Party: Cross-Defendant Oriel Poole
Responding Parties:
Cross-Complainants Ievgenii Slynko,
Ganna Slynko, and Platon Slynko
Demurrer to Second Amended Cross-Complaint
The court has
considered the moving and opposition papers. No reply was received.
The court OVERRULES in part Cross-Defendant Oriel
Poole’s demurrer to the Second Amended Cross-Complaint as to the second cause
of action and SUSTAINS it in part as to the third cause of action without leave to amend.
The court orders
Cross-Defendant to file an answer to the cross-complaint within 10 days of the
date of this ruling a proposed judgment dismissing Plaintiff’s action.
Background
A.
Complaint
This is a
tenant-landlord dispute. Plaintiff Oriel Poole (hereinafter, “Plaintiff” or “Poole”)
filed this action on May 29, 2020 and filed a First Amended Complaint on July
30, 2020. The operative Second Amended Complaint (“SAC”) was filed on May 3,
2021 against defendants Ievgenii Slynko, Ganna Slynko, Platon Slynko, and Olena
Kuhtaryeva, alleging causes of action for (1) Forcible Entry; (2) Forcible
Detainer; (3) Wrongful Eviction; (4) Breach of Written Contract; (54) Breach of
the Covenant of Quiet Enjoyment; (6) Construction Eviction; (7) Violation of
Los Angeles Municipal Code § 151.05; (8) Violation of Los Angeles Municipal
Code § 151.09; (9) Negligence; (10) Intentional Infliction of Emotional
Distress; and (11) Conversion.
The
SAC alleges the following. In November 2014, Plaintiff moved into a portion of
the property located at 2731 Angus Street, Los Angeles, California 90039 and
occupied on bedroom of the main house pursuant to a written rental agreement
with defendant Platon. (SAC ¶¶1, 10.) In November 2016, Plaintiff entered into
another written rental agreement with Plaotn for the bedroom of the main house.
(Id. at ¶ 11.) The main house is a large dwelling structure on the front
of the subject property, consisting of four bedroom and three bathroom. (Id.
at ¶ 12.) Behind the main house is a studio apartment, which has an outdoor
patio adjacent to it. (Ibid.) These structures contained illegal divisions
and modification. (Ibid.)
In
May 2016, Plaintiff moved into one of the basement units. (Id. at ¶ 13.)
Plaintiff also paid Defendants’ agent in July 2019 to purchase a cabin at the
back of the subject property to be used as a music studio and office, but
Plaintiff did not receive any kind of title or deed. (Id. at ¶ 15.) Plaintiff
alleges this was an illegal sale. (Id. at ¶ 15.) As to the basement unit,
it was permitted as a storage area, not as a bedroom, and the other basement
unit there was rented out to another individual (the “Roommate”). (Id.
at ¶ 13.) The Roommate, who was under Defendants’ control, harassed and verbally
abused Plaintiff, and on August 21, 2019, the Roommate physically attacked
Plaintiff, causing her to sustain a concussion. (Id. at ¶¶ 14, 16.)
Defendants took no steps to reasonably protect Plaintiff from the Roommate or
to remedy the problems the Roommate presented. (Id. at ¶ 14.)
On
August 27, 2019, Defendants commenced an eviction proceedings against the Roommate.
(Id. at ¶ 18.) Via email, Plaintiff agreed with Defendants that she
would temporarily vacate the subject property and return once the Roommate was
evicted for her own safety. (Ibid.) Defendants never allowed Plaintiff
to return and, instead, permitted another resident to take over her space and
use her personal belongings without her permission. (Id. at ¶¶ 21-24.)
B.
Cross-Complaint
On
June 21, 2021, Defendants Ievgenni Slynko, Ganna Slynko, and Platon Slynko (collectively,
“Cross-Complainants”) filed a Cross-Complaint. On February 8, 2023, Cross-Complainants
filed a First Amended Cross-Complaint (“FACC”) against Poole, alleging causes
of action for (1) Breach of Contract; (2) Unjust Enrichment; (3) Nuisance; (4)
Breach of the Implied Covenant of Good Faith and Fair Dealing; and (5) Violation
of Business & Professions Code § 17200.
On
July 27, 2023, the court overruled Poole’s demurrer to the first cause of
action of the FACC, sustained Poole’s demurrer to the third through fifth
causes of action with leave to amend, and sustained Poole’s demurrer to the second
cause of action without leave to amend.
On
August 16, 2023, Cross-Complainants filed the operative Second Amended
Cross-Complaint (“SACC”) against Poole, alleging causes of action for (1) Breach
of Contract; (2) Trespass; and (3) Violation of Business & Professions Code
§ 17200.
The SACC alleges
the following. On November 15, 2024, Poole moved into the subject premises with
roommates under a written lease agreement. (SACC ¶ 9.) Between 2014 and May 2016,
Poole would often temporarily relocate from the subject property to a different
city, state or country for work for varying lengths of time. (Id. at ¶
10.) Beginning on May 1, 2016, the parties entered into a Personal Property/Parking/Storage
Leasing Agreement (“Studio Lease”) because Poole only needed to retain a
portion of the subject property, which is referred to as Studio A. (Id.
at ¶ 11.) It was agreed between the
parties that Studio A was to be used only as a music studio or for storage. (Ibid.)
Poole was aware that Studio A did not have a certificate of occupancy. (Ibid.)
Without authorization or permission, Poole moved into Studio A. (Ibid.)
Poole breached the Studio Lease by moving into Studio A, advertising and
renting it as a dwelling unit on Airbnb and other similar platforms, and
collecting illegal rent from such short-term rentals. (Id. at ¶¶ 12,
19.) Poole posted these listings from May 2016 to until March 2020. (Id.
at ¶ 12.) On August 21, 2019, Poole had an altercation with the Roommate, and Cross-Complainants
proceeding in evicting the Roommate based on Poole’s version of events. (Id.
at ¶ 13.) However, it was only after evicting the Roommate did
Cross-Complainants become aware that Poole had provoked the altercation. (Ibid.)
Thereafter, Poole voluntarily vacated Studio A in August 2019, but she
continued to list it as a short-term rental through March 2020. (Id. at
¶ 14.) Because of Poole’s illegal rental activity, Cross-Complainants received a
Notice of Code Violation of Home Sharing Ordinance from the City of Los Angeles
Home-Sharing Unit of the Department of City Planning Development Services
Center. (Id. at ¶ 15.)
Poole filed the
instant demurrer to the SACC on September 7, 2023. Cross-Complainants filed an
opposition on February 23, 2024. No reply has been filed.
Legal
Standard
When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
“A demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. Therefore, it lies only where the defects appear on the face of
the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The
only issue involved in a demurrer hearing is whether the complaint, as it stands,
unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Discussion
A. Meet and Confer
Code of Civil Procedure
§ 430.41(a) states, in relevant part: “Before filing a demurrer . . . the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.”
Based on the
declaration submitted in support of the instant demurrer, Counsel Bloch attests
that he spoke with Cross-Complainants’ counsel on September 7, 2023 at around
4:30 p.m. regarding the instant demurrer, but the parties could not reach an
agreement. (Bloch Decl. ¶ 2.) Because the parties had spoken telephonically with
regard to the legal sufficiency of the SACC, the court finds that Counsel Bloch’s
declaration satisfies the meet and confer requirement of Code of Civil procedure
§ 430.41
B.
Demurrer
i.
Second Cause of Action for Trespass
“ ‘Trespass is
an unlawful interference with possession of property.’ [Citation.] The elements
of trespass are: (1) the plaintiff's ownership or control of the property; (2)
the defendant's intentional, reckless, or negligent entry onto the property;
(3) lack of permission for the entry or acts in excess of permission; (4) harm;
and (5) the defendant's conduct was a substantial factor in causing the harm.”
(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th
245, 261–262.)
Poole first
argues that the second cause of action for trespass is subject to demurrer
because it was improperly added without leave of court, and the court’s prior order
for leave to amend did not permit Cross-Complainants to file a new cause of
action. (Demurrer at pg. 9.) The court does not find this argument to be
persuasive because it was previously acknowledged that the facts alleged in
support of Cross-Complainants’ nuisance claim was more akin to a claim of
trespass. (See July 27, 2023 Tentative Ruling at pg. 12.) Therefore, the court
does not find that Cross-Complainants improperly added a new cause of action
without leave to amend because the trespass claim was present in prior iterations
of the cross-complaint but not directly named.
Next, Poole argues
that the trespass claim has not been sufficiently alleged because the attached Studio
Lease does not have a prohibition against subletting, and there are no allegations
to support harm. (Demurrer at pg. 10.) It is noted that Cross-Complainants’
opposition does not address this argument.
While the Studio
Lease did not expressly prohibit subletting, it is clear from the agreement and
the allegations within the SACC that Studio A was intended for storage only.
(SACC ¶ 11, Exh. A.) Thus, as alleged,
Poole was not allowed to use Studio A as dwelling for herself and others. (SACC
¶¶ 11-12.) This is what constitutes as
the lack of permission for the entry. Furthermore,
because it is alleged that Poole continued to sublease Studio A even after she
vacated the subject property, the trespass claim does not merely rely on the
same facts that support Cross-Complainants’ breach of contract claim. (SACC ¶ 14.)
Cross-Complainants were harmed because Poole was preventing Cross-Complainants
from having exclusive use over Studio A. (SACC ¶ 22-23.)
Accordingly, because
the trespass claim has been sufficiently alleged, the court overrules the
demurer to the second cause of action.
ii.
Third Cause of Action for Violation
of Business & Professions Code § 17200
Lastly, Poole demurs
to the third cause of action for violation of Business & Professions Code §
17200 because the SACC fails to identify a particular law that had been violated
or what harm was caused. (Demurrer at pp. 11, 13.)
“A plaintiff
alleging unfair business practices under these statutes must state with
reasonable particularity the facts supporting the statutory elements of the
violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th
612, 619.) A demurrer may be properly sustained as to a cause of action where
the complaint fails to identify the particular section of the statutory scheme
that was violated and describes with no reasonable particularity the facts
supporting violation. (See Khoury v. Maly’s of California, Inc. (1993)
14 Cal.App.4th 612, 619 [“Demurrer was properly sustained as to this cause of
action because the second amended complaint identifies no particular section of
the statutory scheme which was violated and fails to describe with any reasonable
particularity the facts supporting violation.”].)
Here, the SACC
alleges that Poole “engaged in fraudulent and deceptive business practices, by
purporting to sublease the subject property to members of the public in violation
of both the lease agreement with Cross-Complainants, as well as local statutes
such as the Los Angeles Home Sharing Ordinance precluding the use of the unit
for dwelling purposes.” (SACC ¶ 26.)
This claim
continues to be deficient because it fails to allege with particularity what law
has been violated. While the SACC generally references the Los Angeles Home
Sharing Ordinance, it does not allege what portion of this ordinance has been
violated. Furthermore, it is unclear that Cross-Complainants even have standing
to assert a UCL claim because it has not been alleged that they have lost money
or property as a result of Poole’s conduct. (Kwikset Corp. v. Superior Court
(2011) 51 Cal.4th 310, 322-323.) To properly state an injury-in-fact, Cross-Complainants
would have to have alleged that their present or future property interest was
diminished or that they were deprived of money or property. (Ibid.) However,
Cross-Complainants have failed to do so. Because Cross-Complainants have not
show how these defects can been cured, they have failed to meet their burden in
warranting leave to amend. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)
Accordingly,
because the third cause of action for Violation of the Business &
Professions Code § 17200 has not been sufficiently alleged, the demurrer is
sustained without leave to amend.
Conclusion
Based on the
foregoing, the court overrules the demurrer in part as to the second cause of
action and sustains it in part as to the third cause of action without leave to
amend. The court orders Poole to file within 10 days of the date of this ruling
an answer to the SACC.
It is so
ordered.
Dated:
March 7, 2024
_______________________
ROLF M. TREU
Judge of the
Superior Court