Judge: Michael P. Linfield, Case: 23STCV08776, Date: 2023-08-31 Tentative Ruling
Case Number: 23STCV08776 Hearing Date: August 31, 2023 Dept: 34
SUBJECT: Demurrer to Plaintiff’s Complaint
Moving Party: Defendant
Vladimyr Frazilus
Resp. Party: Plaintiff Redmond Fitzpatrick
The Demurrer is
OVERRULED.
On April 20, 2023, Plaintiff Redmond Fitzpatrick filed
his Complaint against Defendants Vladimyr Frazilus, Paul Virgo, and Stronghold,
LLC on causes of action arising from Plaintiff’s tenancy with Defendants.
On July 7, 2023, Defendant Vladimyr Frazilus his Demurrer
to Plaintiff’s Complaint.
On August 1, 2023, Defendant/Cross-Complainant Paul Virgo
filed: (1) Unverified Response to the Complaint; and (2) Cross-Complaint
against Defendants/Cross-Defendants Vladimyr Frazilus and Stronghold, LLC.
On August 16, 2023, Plaintiff filed his Opposition to the
Demurrer. Plaintiff concurrently filed: (1) Proposed Order; and (2) Proof of
Service.
No reply or other response has been filed regarding the
Demurrer.
ANALYSIS:
I.
Legal Standard
A demurrer is a pleading used to test the
legal sufficiency of other pleadings. It raises issues of law, not fact, regarding
the form or content of the opposing party’s pleading. It is not the function of
the demurrer to challenge the truthfulness of the complaint; and for purpose of
the ruling on the demurrer, all facts pleaded in the complaint are assumed to
be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)¿
¿¿¿
A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack; or from matters
outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under Code of Civil Procedure section
430.10 (grounds), section 430.30 (as to any matter on its face or from which
judicial notice may be taken), and section 430.50(a) (can be taken to the
entire complaint or any cause of action within).¿¿
¿¿¿¿
A demurrer may be brought under Code of Civil
Procedure section 430.10, subdivision (e) if insufficient facts are stated to
support the cause of action asserted. A demurrer for uncertainty (Code of Civil
Procedure section 430.10, subdivision (f)), is disfavored and will only be
sustained where the pleading is so bad that defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. (Khoury v.
Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the
pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)¿¿¿
II.
Discussion
Defendant/Cross-Defendant Vladimyr
Frazilus (“Defendant”) demurs to the first cause of action (negligence) and
second cause of action (constructive eviction) in the Complaint.
A. Negligence
1. Legal
Standard
In order to state a claim for negligence,
Plaintiff must allege the elements of (1) “the existence of a legal duty of
care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an
injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664,
671.)
2. Discussion
Defendant argues that the first
cause of action for negligence does not state facts sufficient to constitute a
cause of action because: (1) Defendant was never under the obligation of the
Los Angeles Rent Stabilization Ordinance; and (2) the Complaint does not
specifically allege that Defendant was the one who served the 60-Day Notice of
Termination of Tenancy. (Demurrer, p. 5:5–7, 5:13–18.)
The Court disagrees with Defendant’s
arguments.
Among other things, Plaintiff
alleges: (1) that Defendant owed Plaintiff a duty of care as his owner,
landlord, and/or property manager; (2) that Defendant breached that duty by,
among other things, wrongfully evicting Plaintiff without just cause from his
home in violation of the Los Angeles Rent Stabilization Ordinance and
influencing Plaintiff to vacate his rental unit by harassing Plaintiff in
violation of the Anti-Harassment Ordinance; and (3) that Defendant’s breaches
were a proximate cause in the damages Plaintiff suffered. (Complaint, ¶¶
47–52.)
Service of the 60-Day Notice is not
the sole breach complained of. Further, it is ultimately a mixed question of
fact and law as to whether the Los Angeles Rent Stabilization Ordinance (and/or
any other ordinances) apply in this matter, making this an issue not amenable
to resolution on a demurrer. These allegations are sufficient for the first
cause of action for negligence to withstand demur.
The Court OVERRULES the Demurrer to
the first cause of action for negligence.
B. Constructive
Eviction
1. Legal
Standard
“The implied covenant of quiet enjoyment or possession may be
breached in multiple ways. The claim has often been inextricably tied to breach
of the covenant by eviction, which disturbs the tenant's right to undisturbed
possession of the leased premises. If the landlord ousts the tenant, there is
an actual eviction. If the landlord's acts or omissions affect the tenant's use
of the property and compel the tenant to vacate, there is a constructive
eviction. In either case, the tenant must vacate. Many courts have accordingly repeated the general premise
that ‘the covenant of quiet enjoyment is not broken until there has been an
actual or constructive eviction . . . .’” (Ginsberg v. Gamson (2012) 205
Cal.App.4th 873, 897–98, quoting Petroleum Collections Inc. v. Swords (1975)
48 Cal.App.3d 841, 847, other citations omitted.)
2. Discussion
Defendant argues that the second
cause of action for constructive eviction does not state facts sufficient to
constitute a cause of action because Defendant was never under the obligation
of the Los Angeles Rent Stabilization Ordinance. (Demurrer, p. 5:19–20.)
The Court disagrees with this
argument.
Among other things, Plaintiff alleges
that Plaintiff was forced to permanently vacate his rent-controlled home and
was constructively evicted due to the acts of Defendant. (Complaint, ¶¶ 56–58.)
Again, it is ultimately a mixed
question of fact and law as to whether the Los Angeles Rent Stabilization
Ordinance (and/or any other ordinances) apply in this matter, making this an
issue not amenable to resolution on a demurrer. These allegations are
sufficient for the second cause of action for constructive eviction to
withstand demur.
The Court OVERRULES the Demurrer to
the second cause of action for constructive eviction.
III.
Conclusion
The Demurrer is OVERRULED.