Judge: Michael E. Whitaker, Case: 23SMCV01319, Date: 2023-10-31 Tentative Ruling

Case Number: 23SMCV01319    Hearing Date: February 5, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

This case stems from a dispute over real property.  Plaintiff and Cross-Defendant Cheryl Baker, Successor Trustee of the Albert Leon Family Trust dated September 3, 1997 as amended and restated (“Baker”) owns two residential real properties that Defendant and Cross-Complainant Austin Sherman (“Sherman”) occupies.  (Complaint ¶¶ 7-9.) 

Baker brought suit for public and private nuisance, waste, and breach of contract, alleging Defendant is improperly running a commercial cannabis business out of the two residential properties.  (See Complaint.) 

Sherman cross-complained, alleging four causes of action for (1) intentional interference with an expected inheritance; (2) breach of the covenant of quiet enjoyment; (3) intentional infliction of emotional distress; and (4) violation of Civil Code section 789.3. 

On October 31, 2023, the Court sustained Baker’s demurrer to Cross-Complaint as to the second cause of action, but overruled the demurrer as to the first, third, and fourth causes of action.  (See October 31, 2023 Minute Order.)  On November 13, 2023, Sherman filed the first amended cross-complaint (“FACC”).

Baker again demurs to the first and second causes of action for failure to state a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e), and to the fourth cause of action for uncertainty pursuant to Code of Civil Procedure section 430.10, subdivision (f).  Baker also again moves to strike allegations that Sherman has a life estate in the subject properties.

Sherman opposes both motions and Baker replies.

REQUEST FOR JUDICIAL NOTICE

            Baker requests judicial notice of the following documents:

1.      The First Amended Cross-Complaint filed in this action on November 13, 2023;

2.      The Notice of Motion and Motion to Strike Portions of the First Amended Cross-Complaint filed in this action on December 13, 2023; and

3.      Plaintiff’s Opposition to Defendant’s Demurrer to the Complaint filed in this action on June 23, 2023.

Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because these documents are all part of the Court’s record for this case, the Court may take judicial notice of them.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

Accordingly, the Court takes judicial notice of the existence of the above documents filed in this matter as a court record, but not the truth of the allegations or arguments contained therein.

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.    FAILURE TO STATE A CAUSE OF ACTION

                                                                    i.            First Cause of Action – Intentional Interference with an Expected Inheritance

Although the Court previously overruled Baker’s demurrers to the first and fourth causes of action, Baker demurs to these causes of action again.

Code of Civil Procedure section 430.41, subdivision (b) provides, “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” 

Once a court overrules a demurrer to a cause of action, it is “foreclosed from rendering a new determination on the viability of those claims unless some new facts or circumstances were brought to [its] attention.”  (Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 97.)

Baker contends that “new facts” were added under the Second Cause of Action which also implicate the First, Third, and Fourth causes of Action, and therefore the renewed demurrers are proper.

Although the fourth cause of action contains an incorporation clause, thus incorporating the new allegations made in the preceding paragraphs, the new allegations do not apply to the first cause of action, which does not encompass allegations made in subsequent paragraphs. 

Thus, Baker’s demurrer to the first cause of action is procedurally improper.

                                                                  ii.            Second Cause of Action – Breach of the Covenant of Quiet Enjoyment

Absent language to the contrary, “every lease includes a covenant of quiet possession and enjoyment.”  (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1300.)  The covenant is binding on successors in interest.  (Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 291.) 

“To be actionable, the landlords act or omission must substantially interfere with a tenants right to use and enjoy the premises for the purposes contemplated by the tenancy.”  (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.)  “The perpetrator of the interference with the tenants quiet enjoyment need not be the landlord personally. There may be an actionable breach where the interference is caused by a neighbor or tenant claiming under the landlord.”  (Id. at p. 590.)  “This covenant is breached upon actual or constructive eviction of the tenant.”  (Ibid.)  “Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.”  (Ibid.) 

However, “the tenant need not vacate the property before bringing an action for breach of the implied covenant of quiet enjoyment.”  (Marchese v. Standard Realty & Dev. Co. (1977) 74 Cal.App.3d 142, 145.)  Interference with the water supply can establish a breach of the covenant of quiet possession and enjoyment.  (Id. at pp. 148-149.)

This covenant applies to all “hirers” of real property, which includes “tenants, lessees, boarders, lodgers, and others, however denominated.”  (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4^th 1004, 1034-1035.) 

Baker argues that Sherman does not allege to be a “hirer” of property, and in fact affirmatively alleges, “Cross Complainant’s life estate is not the subject of a written lease and instead is an oral life estate of the premises granted to Cross Complainant for the duration of Cross Complainant’s life[.]”  (FACC ¶ 20.) 

Sherman contends in opposition that “The [FACC] alleges Cross Defendant is the Trustee of the Trust that currently owns both properties and that Cross Complainant has a Life estate (ACC para. 9-13).  This is sufficient to establish the trust is a hirer of property.”  (Opp at p. 5.) 

Sherman has thus not established that Sherman is a hirer of the subject properties, as is required for the covenant of quiet enjoyment to apply.

Therefore, the Court sustains Baker’s demurrer to the second cause of action.

B.     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.) 

                                                                    i.            Fourth Cause of Action – Violations of Civil Code Section 789.3

Baker contends the fourth cause of action for violations of Civil Code section 789.3 is uncertain, because although Sherman alleges Baker instructed the utility company to turn off the water to the “premises,” “premises” is defined in the FACC as encompassing both residential properties, and thus it is unclear at which property Sherman alleges Baker had the water shut off.

This argument is duplicative of Baker’s argument made in connection with Baker’s demurrer to the prior cross complaint, and is therefore procedurally improper.  In any event, the demurrer to the fourth cause of action also again fails on the merits.  The FACC alleges:

Cross Defendant flooded with water the garage to the Military property causing extensive mold damage, directed a utility provider to turn off water service and instituted in February of 2023 a frivolous unlawful detainer action (case number 23SMCV00560) which Cross Defendant voluntarily dismissed after substantial litigation in May 2023.

(FACC ¶ 13.)  The Court notes that the unlawful detainer complaint in case number 23SMCV00560 was brought as to the Military property.  Thus, in context, it appears that these allegations all apply to the Military property. 

            But even if there is some ambiguity, it is clear that Sherman alleges Baker had the water shut off to one or both of the properties at issue.  Thus, Baker does not demonstrate that any portions of the FACC are so bad that Baker cannot reasonably determine what issues must be admitted or denied, or what claims are directed against Baker. 

The Court thus declines to sustain Baker’s demurrer to the fourth cause of action on the basis of uncertainty. 

2.      MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Baker moves to strike the following from the FACC:

·         Paragraph 13, lines 5-7: “Cross Complainant has a life estate in the real properties which are the basis of the 1st Amended Complaint, 3760 Military Avenue Los Angeles, CA 90034 and 10963 Venice Blvd Los Angeles, CA 90034”

·         Paragraph 13, lines 7-9: “Cross Defendant has sought to deny Cross Complainant his life estate in said premises and to commit acts meant to drive cross complainant out of possession of said premises in which Cross Complainant has a life estate in.”

·         Paragraph 13, lines 13-15: “These acts on the part of the Cross Defendant interfered with Cross Complainant’s use and enjoyment of the premises for the purposes contemplated by his life estate.”

·         Paragraph 20, lines 9-11: “Cross Complainant has a life estate in the real properties which are the basis of the 1^st Amended Complaint, 3760 Military Avenue Los Angeles, CA 90034 and 10963 Venice Blvd Los Angeles, CA 90034 (“premises”).” 

·         Paragraph 20, lines 16-17: “Cross Complainant acted in a manner reliant upon and consistent with the granting of a life estate.”

·         Paragraph 21, lines 18-22: “Cross-Defendant interfered with Cross Complainant’s right to use and enjoy the premises for the purposes contemplated by Cross Complainant’s life estate.  Cross Defendant has sought to deny Cross Complainant his life estate in said premises and to commit acts meant to drive cross complainant out of possession of said premises in which Cross Complainant has a life estate in.” 

Baker contends the allegations that Sherman has a life estate in the subject properties should be stricken as false.  Baker’s motion is substantially duplicative of the motion to strike Baker previously filed in connection with the first cross complaint.  Baker attaches to the motion a copy of trust documents, the authenticity and validity of which are the subject of this litigation.  But extrinsic evidence cannot be considered on a demurrer or motion to strike.  (See, e.g., Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [“The purpose of a general demurrer is to determine the sufficiency of the complaint and the court should only rule on matters disclosed in that pleading”].) 

Therefore, the Court denies Baker’s motion to strike for the same reasons as before.  Namely, “Whether Defendant has a life estate in one or both of the subject properties […] are factual questions to be resolved at later stages of the litigation, following discovery.  The Court cannot, at this stage of the litigation, strike disputed allegations as false.”  (See October 31, 2023 Minute Order.) 

3.      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, Sherman has failed to meet this burden as the oppositions do not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted. 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Baker’s Demurrer to the First and Fourth Causes of Action, and sustains without leave to amend Baker’s Demurrer to the Second Cause of Action. 

Further, the Court denies Baker’s Motion to Strike in its entirety. 

The Court orders Baker to file an Answer to the First Amended Cross Complaint on or before February 16, 2024. 

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

DATED:  February 5, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court