Judge: Michael E. Whitaker, Case: 21SMCV00787, Date: 2023-09-15 Tentative Ruling

Case Number: 21SMCV00787    Hearing Date: November 14, 2023    Dept: 207

TENTATIVE RULING

MOTION

On April 29, 2021, Plaintiff Ian James Johnston (“Plaintiff”) filed suit, alleging three causes of action, for breach of contract, common law trespass, and illegal eviction.  Defendant Michel Moore[1] (“Defendant”) demurs to all three causes of action alleged in the Complaint, on the basis that they fail to state a cause of action and are uncertain pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively. 

Plaintiff untimely filed an opposition.  Defendant has not replied.

PLAINTIFF’S UNTIMELY OPPOSITION

            Code of Civil Procedure section 1005, subdivision (b) provides, “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  The court has discretion whether to consider late-filed papers.  (Cal. Rules of Court, rule 3.1300(d).)   

The hearing in this matter is set for Tuesday, November 14, 2023.  Friday, November 10 is Veterans Day – a court holiday.  Thus, Plaintiff’s opposition to the demurrer was due by October 31, 2023, which is nine court days prior to the November 14 hearing.  Plaintiff did not file an opposition until November 3.  Plaintiff has not provided an explanation for the delay, although the Court notes that Plaintiff is proceeding in pro per.

            Because Plaintiff is proceeding in pro per and in light of the fact that Defendant has not objected to Plaintiff’s untimely opposition, the Court exercises its discretion and considers the late-filed opposition brief.

PLAINTIFF’S MOTION FOR LEAVE TO AMEND

            Plaintiff filed a combination opposition to the demurrer and motion for leave to amend the complaint to add causes of action for quiet title; unlawful detainer; RICO violations; and “Violations of rights protected by both the state and Federal Constitutions.”

            Code of Civil Procedure section 472, subdivision (a) provides:

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.

            The prior co-defendant Gavin Newsom demurred to the complaint on February 24, 2022, which was sustained without leave to amend on March 25, 2022.  (See March 25, 2022 Minute Order).  Therefore, the time within which Plaintiff could have amended the pleading without leave of the court has passed.  As such, when Plaintiff attempted to file an amended complaint on October 6, 2023, it was properly rejected by the Clerk of the Court.

            More important, with respect to Plaintiff’s motion for leave to amend the complaint, Plaintiff has not provided proper notice of the motion.  (See Code Civ. Proc., § 1005, subd. (b) [“all moving and supporting papers shall be served and filed at least 16 court days before the hearing”].)  Consequently, the Court finds that Plaintiff has not afforded Defendant with basic procedural due process.  (See Doe v. Regents of University of Cal. (2022) 80 Cal.App.5th 282, 296 [“The constitutional right to due process requires that a party be given notice and an opportunity to defend his or her interests”].)

As such, the Court denies Plaintiff’s motion for leave to amend the complaint without prejudice.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Here, all Plaintiff’s complaint states is the following:

·       the Defendants are “Gavin Newsome, Eric Garcetti, LAPD Chief Michael Moore, John Does 1-10,000” (Compl. ¶¶ 1; 4(b)(1));

·       “Plaintiff is required to comply with a claims statute and has complied with the applicable claims statute” (Compl. ¶ 5(a));

·       the “real property that is the subject of this action is located here” (Compl. ¶ 7(f));

·       the causes of action being brought are Breach of Contract, “Common Law Trespass” and “Illegal Eviction” (Compl. ¶¶ 8-9); and

·       Plaintiff prays for “damages of $25,000 – Treble damages – Punitive” (Compl.¶ 10(a).) 

Although paragraph 8 indicates “The following causes of action are attached,” Plaintiff has not attached any further statements for the three causes of action.  Thus, it is unclear from the Complaint which defendant is alleged to have done what, what real property is involved, the date of the incident or incident(s) giving rise to the lawsuit, or the essential terms of any alleged contract.  As such, Defendant cannot reasonably determine what issues must be admitted or denied, what claims are directed against Defendant, or even what this lawsuit is about.

As such, the Court sustains Defendant’s demurrer on the ground of uncertainty.

B.    FAILURE TO STATE A CAUSE OF ACTION

In the alternative, the Court sustains Defendant’s demurrer for failure to state a cause of action.

                                                       i.          First Cause of Action – Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.”  (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) 

Plaintiff has not alleged any of the material terms of the contract.  It is unclear who the parties to the contract are, when the contract was entered into, whether the contract was written or oral, what the material terms of the contract were, whether plaintiff performed his duties under the contract or his nonperformance was excused, what Defendant’s obligations were that were breached, or how Plaintiff’s alleged damages were caused by the breach.

Therefore, Plaintiff has failed to state a cause of action against Defendant for breach of contract.

                                                     ii.          Second Cause of Action – Common Law Trespass

“Trespass is an unlawful interference with possession of property.”  (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.)  “Liability for trespass may be imposed for conduct which is intentional, reckless, negligent or the result of an extra-hazardous activity.”  (Ibid.) 

To prevail on a cause of action for trespass, a plaintiff must establish (1) plaintiff owned, leased, occupied, or controlled the property; (2) defendant intentionally, recklessly, or negligently entered or caused another person to enter plaintiff’s property; (3) plaintiff did not give permission to enter, or defendant exceeded plaintiff’s permission; (4) plaintiff was actually harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (CACI No. 2000.)

            Plaintiff has not alleged what property is at issue, who entered Plaintiff’s property; that Plaintiff owned, leased, occupied, or controlled the property; that defendant’s conduct was unlawful; how Plaintiff was harmed, or how defendant’s conduct was a substantial factor in causing that harm.

            Therefore, Plaintiff has failed to state a cause of action against Defendant for common law trespass.

                                                   iii.          Third Cause of Action – Illegal Eviction

“If a tenant is forcibly removed from premises without judicial process, such tenant can sue for wrongful eviction and obtain actual damages, including consequential damages, and (upon a proper showing) punitive damages.”  (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.) 

An eviction is illegal if it does not conform to the procedural requirements for a lawful eviction.  (See, e.g., George v. County of San Luis Obispo (2000) 78 Cal.App.4th 1048.)  Similarly, an eviction is illegal if it is brought for retaliatory purposes.  (See Civ. Code, § 1942.5.) 

Moreover, a sheriff who evicts a tenant pursuant to a court order or writ of possession that appears regular on its face is immune from liability for wrongful eviction.  (George, supra, 78 Cal.App.4th 1048.)

Here, Plaintiff does not allege any facts concerning the alleged eviction.  Plaintiff does not allege to be a tenant anywhere, nor does Plaintiff allege which Defendant is alleged to have done what in furtherance of the alleged eviction, whether the eviction failed to comply with the procedural requirements or was retaliatory in nature, or whether such eviction was purportedly done pursuant to a court order or writ of possession.  

Thus, Plaintiff has failed to state a cause of action for illegal eviction.

2.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has lodged with the court a proposed first amended complaint, which clarifies that Plaintiff failed to register his 1988 Southwind RV with the DMV, believing he did not need to do so, as a “sovereign” who uses it “only for Non-Commercial purposes, as Household Goods, as a private coach, and as his Homestead.”  (Proposed First Amended Complaint [“FAC”] at ¶¶ 6-10.)  Thus, several Los Angeles Police Department officers woke Plaintiff on January 30, 2020 around 8am, by “pounding” on the doors of the RV, which was parked in Venice Beach, “to seize and impound” the RV because of Plaintiff’s failure to register it.  (FAC ¶ 11.)  Plaintiff was provided “only a few minutes to retrieve such properties as he could carry out in that time, to take with him – the rest being, impounded […] in Inglewood.”  (Ibid.) 

As a result, Plaintiff alleges he “was forced to repurchase his property (that he already owned) at auction and at great expense - $1260.40 + a 10% City Tax totaling $1386.44” at a lien sale on March 10, 2020.  (FAC ¶ 14.)  Plaintiff alleges Rental/Replacement damages in the amount of $550 per day for the 40 days he was without his RV, plus $100 in spoiled food, $50 in parts and labor to fix the broken deadbolt lock on his front door, plus $2,000 spent on a van “to house himself and his unimpounded property[.]”  (Ibid.)  Plaintiff also alleges a pattern of legal issues dating back to mid-2001, citing case numbers, although the jurisdiction and subject matter of those cases remains unclear.  (FAC ¶¶ 2-3.)

Notwithstanding, with respect to the instant complaint, Plaintiff has not raised any additional facts he could allege to cure the deficiencies identified by the Court.  

In particular,  Plaintiff has still not alleged the existence or essential terms of any contract, Plaintiff’s performance (or excused nonperformance) under such contract, Defendant’s breach, or any damages caused thereby.  Concerning the Trespass claim, Plaintiff has not alleged unlawful interference with Plaintiff’s property.  Namely, Plaintiff’s admitted failure to register his recreational vehicle provided the officers with the legal justification to impound it.  And lastly, with respect to illegal eviction, Plaintiff has not alleged that he is a tenant.

Thus, Plaintiff has failed to meet his burden to demonstrate how the complaint could be amended to cure the deficiencies identified by the Court.    

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendant’s Demurrer to the Complaint in its entirety without leave to amend.  Further, the Court denies Plaintiff’s motion for leave to amend the complaint without prejudice. 

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  November 14, 2023                                               ___________________________

                                                                                    Michael E. Whitaker

                                                                                    Judge of the Superior Court