Judge Melvin D. Sandvig, Case 19CHCV00892 2023-02-28 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 19CHCV00892, Date: 2023-02-28 Tentative Ruling

Case Number: 19CHCV00892 Hearing Date: February 28, 2023 Dept: F47

Dept. F47

Date: 2/28/23

Case #19CHCV00892

DEMURRER & MOTION TO STRIKE

TO THE

FIRST AMENDED COMPLAINT

Demurrer & Motion to Strike filed on 1/6/23.

MOVING PARTY: Defendant Padita Ayana

RESPONDING PARTY: Plaintiff Jamal Salim Nasrallah

NOTICE: ok

Demurrer is to the entire First Amended Complaint:

1. Forcible Entry

2. Forcible Detainer

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking allegations regarding and the prayer for punitive damages (¶24, p.4:14-18; ¶33, p.5:21-25; p.6:13-14 Item 8) and the prayer for attorney fees (p.6:15 Item 9).

RULING: The demurrer is overruled, in part, and sustained with leave, in part. The motion to strike is granted with leave to amend. A Second Amended Complaint is due to be filed and served within 30 days.

This action arises out of a landlord tenant dispute regarding property located at 13547 Osborne Street in Arleta, California. On 11/4/19, Plaintiff Jamal Salim Nasrallah (Plaintiff) filed this action alleging causes of action for: (1) forcible entry and (2) forcible detainer against Padita Ayana and Parawan Ayana.

On 5/10/22, default was entered against Padita Ayana. Also on 5/10/22, Plaintiff filed a Doe Amendment naming Padita Ayana as Trustee of the Parawan Ayana Living Trust. On 5/11/22, pursuant to Plaintiff’s request, the Court entered a dismissal without prejudice of Parawan Ayana. (See 5/11/22 Minute Order).

On 6/6/22, the Court entered an order pursuant to the stipulation of the parties setting aside the default entered against Padita Ayana.

Padita Ayana’s counsel states that the parties continued to meet and confer regarding defects in the complaint during which there was no mention of re-naming Parawan Ayana as a defendant in an amended complaint. (Petrosyan Decl. ¶9).

On 12/7/22, Plaintiff filed the subject First Amended Complaint which again asserts causes of action for: (1) forcible entry and (2) forcible detainer. The First Amended Complaint names Padita Ayana, individually, and as Trustee of the Parawan Ayana Living Trust, and Parawan Ayana, individually, as defendants.

Defense counsel attempted to meet and confer with Plaintiff’s counsel regarding the First Amended Complaint but received no response. (Petrosyan Decl. ¶¶11-13, Ex.A).

On 1/6/23, Defendant Padita Ayana (Padita) filed and served the instant demurrer to the entire First Amended Complaint contending that there is a defect or misjoinder of parties and the First Amended Complaint is uncertain. CCP 430.10(d), (f). Padita also filed and served a motion to strike which seeks an order striking allegations regarding and the prayer for punitive damages (¶24, p.4:14-18; ¶33, p.5:21-25; p.6:13-14 Item 8) and the prayer for attorney fees (p.6:15 Item 9). Plaintiff has not opposed or otherwise responded to the demurrer and/or motion to strike.

The argument in the demurrer regarding the defect or misjoinder of parties concerns the re-naming of Parawan Ayana, individually, as a defendant in the action. This argument fails. First, Parawan Ayana is not the moving party on the demurrer and the demurrer fails to explain how Padita has standing to make this argument on behalf of Parawan. Second, the demurrer fails to explain why adding Parawan Ayana back as a defendant creates a defect or misjoinder of parties merely because adding this defendant back into the action was not discussed during the meet and confer process. It is not clear if the argument is actually that Plaintiff was required to have the dismissal of Parawan set aside before Parawan could be re-named as a defendant in the action or some other argument. Regardless, that would be Parawan’s argument to make, not Padita’s argument.

The First Amended Complaint appears to contain two typographical errors. In paragraph 13, it appears that Plaintiff has mistakenly alleged that “plaintiffs filed an Unlawful Detainer action against defendant” when it would be defendants, in this action, that filed an unlawful detainer action against Plaintiff. This defect is incorporated into both causes of action in the First Amended Complaint. (FAC ¶¶13, 16, 25). Additionally, it appears that Plaintiff has mistakenly referenced non-existent Civil Code 1159(1) and (2) when the citation should be to Code of Civil Procedure 1159(a)(1) and (2). (FAC p.3:15, p.4:21).

Plaintiff has also failed to allege sufficient facts to support a finding that Defendants are guilty of fraud, oppression or malice which are necessary to state a claim for punitive damages. Civil Code 3294. Additionally, Plaintiff has not alleged a basis for the recovery of attorney’s fees which must be based on contract, statute or law. CCP 1021; CCP 1033.5(a)(10).

Based on the foregoing, the demurrer regarding defect or misjoinder of parties is overruled. Such ruling is without prejudice to Parawan Ayana making a demurrer and/or other motion on this issue. The demurrer as to the uncertainties in the First Amended Complaint is sustained with leave to amend. The motion to strike is also granted with leave to amend.

Defendants’ counsel is warned that in the future when filing a demurrer with motion to strike, the demurrer and motion to strike must be separately filed in eCourt.