Judge: Michael P. Linfield, Case: 23STCV17488, Date: 2024-01-09 Tentative Ruling

Case Number: 23STCV17488    Hearing Date: January 9, 2024    Dept: 34

SUBJECT:        Demurrer to First Amended Cross-Complaint

Moving Party: Plaintiff/Cross-Defendant Eva Callejas

Resp. Party:    None

SUBJECT:        Motion to Strike Request for Punitive Damages

Moving Party: Plaintiff/Cross-Defendant Eva Callejas

Resp. Party:    None

The Demurrer is OVERRULED as to the fourth cause of action. The Demurrer is SUSTAINED to the fifth cause of action without leave to amend and also SUSTAINED as to the sixth cause of action.

The Motion to Strike is DENIED.

BACKGROUND:

On July 26, 2023, Plaintiff Eva Callejas filed her Complaint against Defendants Gilberto Zelaya and Julio Aguilar arising from her prior tenancy.

On August 22, 2023, Defendant/Cross-Complainant Gilberto Zelaya filed: (1) Answer to the Complaint; and (2) Cross-Complaint against Cross-Defendants Eva Callejas and Julio Aguilar.

On October 26, 2023, Defendant/Cross-Complainant Gilberto Zelaya filed his First Amended Cross-Complaint (FACC).

On November 13, 2023, by request of Plaintiff/Cross-Defendant Eva Callejas, the Clerk’s Office entered default on Defendant/Cross-Defendant Julio Aguilar regarding the Complaint.

As of November 16, 2023, Defendant/Cross-Complainant Gilberto Zelaya is litigating this matter in propria persona.

On December 8, 2023, Plaintiff/Cross-Defendant filed her Motion to Strike Request for Punitive Damages (“Motion to Strike”). In support of her Motion to Strike, Plaintiff/Cross-Defendant concurrently filed: (1) Omnibus Declaration of Uri Niv; and (2) Proposed Order.

On December 11, 2023, Plaintiff/Cross-Defendant refiled her Motion to Strike and concurrent filings. In addition, Plaintiff/Cross-Defendant filed a Proof of Service.

On December 13, 2023, Plaintiff/Cross-Defendant filed her Demurrer to First Amended Cross-Complaint (“Demurrer”).

On January 2, 2024, Plaintiff/Cross-Defendant filed her Notice of Non-Opposition to Demurrer and Motion to Strike.

No oppositions or other responses have been filed to the Demurrer or the Motion to Strike.

ANALYSIS:

I.          Demurrer

A.      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.)¿¿¿

B.      Discussion

Plaintiff/Cross-Defendant Callejas demurs to the fourth, fifth, and sixth causes of action in the First Amended Cross-Complaint.

1.      Fourth Cause of Action — Trespass

a.     Legal Standard

“‘Trespass is an unlawful interference with possession of property.’ (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal. Rptr. 165].) The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–62.)

b.     Discussion

        Callejas demurs to the fourth cause of action for trespass, arguing that the claim fails because Defendant/Cross-Complainant does not allege the necessary elements of entry without permissions, causation, or harm. (Demurrer, p. 5:15–16.)

        Even though the Demurrer is unopposed, the Court disagrees with Plaintiff/Cross-Defendant’s argument.

        Among other things, Defendant/Cross-Complainant alleges: (1) that Defendant/Cross-Complainant owned the property at issue; (2) that Plaintiff/Cross-Defendant entered and remained on the property; (3) that Plaintiff/Cross-Defendant entered and remained on the property without Defendant/Cross-Complainant’s permission; (4) that Defendant/Cross-Complainant was harmed; and (5) that Plaintiff/Cross-Defendant’s conduct was a substantial factor in causing that harm. (FACC, ¶¶ 35–44.)

        These allegations constitute all of the elements of a cause of action for trespass, and they are sufficient to withstand demur.

        The Court OVERRULES the Demurrer to the fourth cause of action for trespass.

2.          Fifth Cause of Action — Intentional Infliction of Emotional Distress

a.     Legal Standard

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

b.     Discussion

        Callejas demurs to the fifth cause of action for intentional infliction of emotional distress (“IIED”), arguing that Defendant/Cross-Complainant has not alleged a single element of that cause of action. (Demurrer, p. 10:3–4.)

        The Court agrees with Plaintiff/Cross-Defendant that there is no “extreme and outrageous conduct” alleged in the FACC.

Specifically, the only conduct discussed in the FACC is that Plaintiff/Cross-Defendant “allegedly occupied the storage room/area without inquiring whether the storage room/area was allowed to be occupied, and used same as a living area.” (FACC, ¶¶ 47–48.) While this conduct might give rise to a tort in the circumstances at hand, no trier of fact could find that this conduct is so extreme and/or outrageous that it exceeds all bounds of that usually tolerated in a civilized community. It is common knowledge that tens of thousands of people in Los Angeles are homeless or on the verge of homelessness — many of whom no doubt sublease properties without first inquiring whether the landlord has specifically approved of the sublease.

        The Court SUSTAINS the Demurrer to the fifth cause of action for intentional infliction of emotional distress, without leave to amend the FACC.

3.      Sixth Cause of Action — Negligence

a.     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.) 

b.     Discussion

        Callejas demurs to the sixth cause of action for negligence, arguing that the cause of action fails because Defendant/Cross-Complainant does not allege the necessary elements of duty, breach, causation, or damages. (Demurrer, p. 8:19–20.)

        The Court agrees with Callejas that no duty has been alleged in the FACC.

Specifically, Defendant/Cross-Complainant alleges that Callejas “had a duty to inquire, before she occupied the garage storage room/area[,] whether such use was allowed under the rental agreement between Cross-Defendant AGUILAR and the property owner, and whether the storage room/area was allowed to be used as a living area.” (FACC, ¶ 53.)

Yet the Court is unaware of any statutory or common law “duty to inquire” for tenancies. Moreover, Defendant/Cross-Complainant has not alleged that Callejas knew or had any reason to know that the property could not be subleased or occupied. In other words, there is no allegation of foreseeability here, and nor are there any other allegations that would overcome a lack of privity between Callejas and Defendant/Cross-Complainant. (See Lichtman v. Siemens Indus. Inc. (2017) 16 Cal.App.5th 914, 921–922, discussing foreseeability and other factors rooted in public policy to consider when finding a duty may arise from a contract in which the parties lack privity.) At most, Defendant/Cross-Complainant has alleged a violation of Defendant/Cross-Defendant Julio Aguilar’s duty under the contract with Defendant/Cross-Complainant not to sublease the property in this manner.

        The Court SUSTAINS the Demurrer to the sixth cause of action for negligence.  It appears that Cross-Complainant is currently representing himself in pro per.  If Cross-Complainant believes that he can amend the sixth cause of action so as to state a claim, he can so argue at the hearing.

C.      Conclusion

The Demurrer is OVERRULED as to the fourth cause of action. The Demurrer is SUSTAINED to the fifth cause of action without leave to amend and also SUSTAINED as to the sixth cause of action.

II.       Motion to Strike

A.      Legal Standard

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (Cal. Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.)

When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Mun. Ct. (1979) 99 Cal.App.3d 568, 575.)

B.      Discussion

Plaintiff/Cross-Defendant moves the Court to strike paragraphs forty-five and fifty-one of the FACC, as well as paragraphs six and eight of its prayer for relief, because they request punitive damages.

The Motion to Strike is moot as to paragraph fifty-one of the FACC and paragraph eight of its prayer for relief because the Demurrer has been sustained to the fifth cause of action for IIED.

As to the remaining portions of the FACC, it would not be appropriate to strike those paragraphs that allege punitive damages. Defendant/Cross-Complainant is entitled to allege that Plaintiff/Cross-Defendant acted with malice, fraud, or oppression and should therefore be liable for punitive damages. It will ultimately be Defendant/Cross-Complainant’s burden to prove that he is entitled to the relief he seeks.

C.      Conclusion

The Motion to Strike is DENIED.