Judge Melvin D. Sandvig, Case Number: 23CHCV01973, Date: 2024-02-07 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 23CHCV01973, Date: 2024-02-07 Tentative Ruling

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Case Number: 23CHCV01973 Hearing Date: March 5, 2024 Dept: F47

Dept. F47

Date: 3/5/24

Case #23CHCV01973

DEMURRER TO FIRST AMENDED COMPLAINT

Demurrer filed on 8/25/23.

MOVING PARTY: Defendants Rick Hawthorne, Larry Thornton and Valley View Vaulters, Inc.

RESPONDING PARTY: Plaintiffs Irwin Jacobowitz; Pearl Jacobowitz; Dakota Dusty Zeigerman-Jacobowitz; Arizona Jacobowitz and Montana Jacobowitz

NOTICE: ok

Demurrer is to the 1^st – 6^th, 8^th – 9^th, 12^th – 20^th causes of action.

RULING: The demurrer is sustained with 30 days leave to amend as to the 5^th, 12^th and 17^th causes of action and is otherwise placed off calendar as moot.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a landlord-tenant dispute. On 7/6/23, Plaintiffs Irwin Jacobowitz; Pearl Jacobowitz; Dakota Dusty Zeigerman-Jacobowitz; Arizona Jacobowitz and Montana Jacobowitz (collectively, Plaintiffs), representing themselves, filed this action against Defendants Rick Hawthorne (Hawthorne), Larry Thornton (Thorton) and Valley View Vaulters, Inc. (Valley View Vaulters) (collectively, Defendants) alleging various causes of action. On 7/21/23, Plaintiffs filed the subject First Amended Complaint against Defendants alleging the following causes of action: (1) Wrongful Eviction, (2) Breach of Contract, (3) Breach of Covenant of Quiet Enjoyment, (4) Trespass, (5) Private Nuisance, (6) Aiding and Abetting Breach of Fiduciary Duty of a Third Party, (7) Constructive Eviction, (8) Intentional Concealment, (9) Fraudulent Misrepresentation, (10) Negligence, (11) Breach of Habitability, (12) Negligent Misrepresentation, (13) Intentional Infliction of Emotional Distress, (14) Fraud, (15) Oppression, (16) Malice, (17) Failure to Return Security Deposit, (18) Punitive Damages, (19) Treble Damages and (20) Negligent Infliction of Emotional Distress.

On 8/25/23, Defendants filed and served a special motion to strike which sought an order, pursuant to CCP 425.16, striking the 1^st – 4^th, 6^th – 10^th, 13^th – 16^thand 18^th – 20^th causes of action in Plaintiffs’ First Amended Complaint. After Plaintiffs failed to respond to meet and confer efforts, on the same date, Defendants filed and served the instant demurrer to the 1^st – 6^th, 8^th – 9^th, 12^th – 20^th causes of action. On 9/29/23, Plaintiffs filed a combined opposition to the special motion to strike and the instant demurrer.

On 2/7/23, the Court granted Defendants special motion to strike which eliminated the 1^st – 4^th, 6^th – 10^th, 13^th – 16^th and 18^th – 20^th causes of action. (See 2/7/24 Minute Order; 2/9/24 Notice of Ruling). On 2/26/24, Defendants filed a reply to the opposition regarding the demurrer.

Due to the granting of the special motion to strike, the Court finds the demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 6^th, 8^th, 9^th, 10^th, 13^th, 14^th, 15^th, 16^th, 18^th, 19^th and 20^th causes of action to be moot. As such, this ruling will only address the merits of the 5^th, 12^th and 17^th causes of action addressed in the demurrer.

ANALYSIS

5^th Cause of Action – Private Nuisance

A private nuisance is a non-trespassory interference with the private use and enjoyment of land. See San Diego Gas & Electric Co. (1996) 13 C4th 893, 938 citing Civil Code 3479-3481. Unreasonable, substantial actual damage, meaning a real and appreciable invasion of the plaintiff’s interests, is a required element of a private nuisance claim. Id.

Plaintiffs have failed to plead sufficient facts to support a finding that Hawthorne, the only defendant named in the 5^th cause of action, unreasonably caused an appreciable invasion of Plaintiffs’ interests, especially considering that Defendants, through the ruling on the special motion to strike, have prevailed on Plaintiffs’ claims for wrongful eviction, breach of contract, breach of quiet enjoyment, trespass, constructive eviction and negligence.

12^th Cause of Action – Negligent Misrepresentation

The elements of a negligent misrepresentation cause of action are: (1) defendant represented to plaintiff that a fact was true; (2) defendant’s representation was not true; (3) defendant had no reasonable grounds for believing the representation was true when defendant made it; (4) defendant intended that plaintiff rely on this representation; (5) plaintiff reasonably relied on defendant’s representation; (6) plaintiff was harmed; and (7) plaintiff’s reliance on defendant’s representation was a substantial factor in causing plaintiff’s harm. See CACI 1903.

Plaintiffs have failed to allege sufficient facts to support the fourth, fifth and seventh elements of the cause of action as against Thornton, the only defendant named in the negligent misrepresentation cause of action.

17^th Cause of Action – Failure to Return Security Deposit

Civil Code 1950.5(d) provides, in relevant part, “[a]ny security shall be held by the landlord for the tenant who is party to the lease or agreement.” Here, Plaintiffs allege that the lease agreement was between “Rick Hawthorne and the VOA.” (FAC ¶66). Additionally, Plaintiffs have failed to allege sufficient facts to establish that Hawthorne, the only defendant against whom the 17^th cause of action is alleged, received money for a security deposit from or on behalf of Plaintiffs. Further, the opposition to the demurrer to this cause of action relies, at least in part, on an exhibit to the opposition which is not part of the First Amended Complaint. (See Opposition, Ex.D).

CONCLUSION

The Court notes that although the reply concedes that the special motion to strike only “eliminated causes of action numbers 1, 2, 3, 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 18, 19, 20,” Defendants then contend that the “the only causes of action alive in Defendants’ demurrer are the” 5^thfor Private Nuisance, 12^th cause of action for Negligent Misrepresentation and 17^th cause of action for Failure to Return Security Deposit. (See Demurrer, p.2:11-18). However, neither the special motion to strike nor the instant demurrer address/ed the 11^th cause of action for Breach of Habitability which is alleged solely against Hawthorne. (See First Amended Complaint, pp.16-17). As such, the 11^th cause of action is also “alive” after the granting of the special motion to strike, but it is not the subject of this demurrer.

Due to the granting of Defendants’ special motion to strike, the demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 6^th, 8^th, 9^th, 10^th, 13^th, 14^th, 15^th, 16^th, 18^th, 19^th and 20^th causes of action is moot.

The demurrer is sustained as to the 5^th, 12^th and 17^th causes of action. Due to the liberal policy of allowing leave to amend, Plaintiffs are given 30 days leave to amend to try to cure the defects in the 5^th, 12^th and 17^th causes of action.