Judge: Michael Shultz, Case: 24STCV1733, Date: 2025-01-17 Tentative Ruling

Case Number: 24STCV1733    Hearing Date: January 17, 2025    Dept: 40

24STCV1733 Joshua Lorne Rogers v. Carlson Industries, et al.

Friday, January 17, 2025

 

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDERS GRANTING DEFENDANTS’ SPECIAL MOTIONS TO STRIKE

 

[TENTATIVE] ORDER OVERRULING IN PART AND SUSTAINING IN PART DEMURRER TO COMPLAINT BY DEFENDANT CARLSON INDUSTRIES, LLC

 

I.       BACKGROUND

      This action arises from the Defendants’ alleged breach of lease agreements relating to two parcels of property. (Complaint, ¶ 12.) Plaintiff alleges the following claims.

1.     Breach of contract against Natasha Skidmore (“Skidmore”)

2.     Breach of contract against Carlson Industries (“Carlson”)

3.     Inducing breach of contract against Carlson and Nicholas Kanter (“Kanter”)

4.     Intentional interference with contractual relations against Carlson and Kanter

5.     Breach of the implied covenant of good faith and fair dealing against Carlson

6.     Breach of the covenant of quiet enjoyment against Carlson.

7.     Inducing breach of contract, breach of the implied covenant of good faith and fair dealing, interference with contractual relations, and breach of the covenant of quiet enjoyment against Carlson and Kanter.

      The Hon. Anne Richardson granted two special motions to strike the third and fourth causes of action filed by Kanter and Carlson pursuant to Code of Civil Procedure 425.16 (“anti-SLAPP”). The court subsequently dismissed the action against Kanter on October 21, 2024, as the remaining claims were not addressed to Kanter.

II.     ARGUMENTS

      Plaintiff moves for reconsideration of both rulings based on new facts or circumstances that Plaintiff discovered since the rulings were issued. On October 29, 2024, Carlson served Plaintiff with a three-day notice to pay rent or quit, claiming rent of $34,650, during a time period when Carlson refused to accept Plaintiff’s rental payments. The three-day notice superseded the prior  30-day notice to terminate. Carlson subsequently dismissed the unlawful detainer action. Plaintiff intends to seek leave to amend the complaint to include a claim for malicious prosecution, which is an exception to the litigation privilege and falls outside the scope of the anti-SLAPP statute.

      Carlson opposes on grounds there are no new or different facts, circumstances, or law to support reconsideration. The anti-SLAPP motions were granted because the settlement negotiations that occurred while litigation was ongoing were privileged communications. A subsequent dismissal of the unlawful detainer from which the protected communications arose does not affect Judge Richardson’s rulings. Carlson objects to Plaintiff’s declaration.

      Kanter opposes the motion on grounds a motion for reconsideration is improper after a judgment of dismissal is filed, and the court does not have jurisdiction. The court should impose sanctions against Plaintiff for contempt. Plaintiff did not raise new or different facts, circumstances, or law.

      In reply, Plaintiff argues the motion is timely against Kanter because the court’s October 7, order does not constitute a final judgment. The request for sanctions should be denied. As to Carlson, Plaintiff argues that the motion meets the requirements of Code Civ. Proc., § 1008.

III.    DISCUSSION

      The court grants Plaintiff’s request for judicial notice of the court records in three unlawful detainer cases brought by Carlson against Plaintiff. (Evid. Code, § 452(d).)

      Insofar as the motion seeks reconsideration of the ruling on Kanter’s anti-SLAPP motion to strike, the motion for reconsideration is taken off calendar as the court lacks jurisdiction to consider it. [Marshall v. Webster (2020) 54 Cal.App.5th 275, 281, [“It is settled law that a motion for reconsideration is ineffectual if it is filed after entry of judgment. This is a corollary to the rule that section 1008 applies only to applications for interim orders. … Thus, a motion for reconsideration may only be considered before final judgment is entered and while the case is still pending in the trial court” (citation omitted)]; see also Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048, 96 Cal.Rptr.3d 690 [“A motion to reconsider is not valid if it is filed after the final judgment is signed”]; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181, 90 Cal.Rptr.2d 171 (APRI) [“Once the trial court has entered judgment, it is without power to grant reconsideration”].)

      Plaintiff argues the motion is timely filed within the 10-day period (increased by five days for mailing of the notice of entry of judgment). The time for filing a motion for reconsideration is 10 days from the notice of ruling on the anti-SLAPP motion. It is not, as Plaintiff claims, 10 days from Judgment. (Code Civ. Proc., § 1008.) The notice of ruling [order] was served on October 7, 2024. Plaintiff filed this motion on October 30, 2024. Accordingly, as to Kanter, the motion is taken off calendar.

      Kanter’s request for imposition of sanction is DENIED. Kanter has not shown that Plaintiff filed this motion “primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." (Code of Civ. Code, §. Procedure § 1008(d), Code Civ. Proc., §§ 128.7.)

      As to the ruling on Defendant Carlson’s anti-SLAPP motion, Plaintiff has not shown new or different facts, circumstances, or law to warrant reconsideration. Judge Richardson granted Carlson’s motion because the causes of action at issue arose from Carlson’s filing of an unlawful detainer action and settlement communications between the parties. (M.O. 10/7/24, p. 6.) Plaintiff did not meet his burden of showing a probability of prevailing on the merits. (Id. page 7.)

      Plaintiff argues that since Carlson subsequently dismissed that unlawful detainer action, Plaintiff intends to amend the complaint to include a claim for malicious prosecution. That proposed claim does not fall within the scope of the anti-SLAPP statute. The argument lacks merit because, in considering an anti-SLAPP motion to strike, the court considers the pleadings and supporting and opposing affidavits. (Code Civ. Proc., § 1008 subd. (b).)  Judge Richardson did not have the opportunity to address a claim for malicious prosecution since the complaint does not include it.

      Regardless,  Plaintiff’s intent to include claims for malicious prosecution claim and criminal extortion is not a new fact or circumstance to warrant reconsideration, since Judge Richardson never considered it in the first instance. Nor do the proposed new causes of action affect Judge Richardson’s ruling that the filing and communications that formed the basis for the third and fourth causes of action were protected conduct and subject to the anti-SLAPP motion to strike.

IV.   CONCLUSION

      Based on the foregoing, the motion is taken off calendar as to Defendant Kantor. The motion is DENIED as to  Defendant Carlson.

 

 

[TENTATIVE] ORDER SUSTAINING IN PART AND OVERRULING IN PART DEMURRER TO COMPLAINT BY DEFENDANT, CARLSON INDUSTRIES, LLC

I.       BACKGROUND

      This action arises from the Defendants’ alleged breach of lease agreements relating to two parcels of property. (Complaint, ¶ 12.) Plaintiff alleges the following claims.

1.     Breach of contract against Natasha Skidmore (“Skidmore”)

2.     Breach of contract against Carlson Industries (“Carlson”)

3.     Inducing breach of contract against Carlson and Nicholas Kanter (“Kanter”)

4.     Intentional interference with contractual relations against Carlson and Kanter

5.     Breach of the implied covenant of good faith and fair dealing against Carlson

6.     Breach of the covenant of quiet enjoyment against Carlson.

7.     Inducing breach of contract, breach of the implied covenant of good faith and fair dealing, interference with contractual relations, and breach of the covenant of quiet enjoyment against Carlson and Kanter.

      Defendant Carlson demurs to the second, fifth, and sixth causes of action.

II.     LEGAL STANDARDS

      A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)

      The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

      Sufficient facts are the essential facts of the case stated "with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

III.    DISCUSSION

A.     Demurrer to the first cause of action for breach of contract is OVERRULED.

      Defendant argues that the leases signed by Plaintiff were valid and identifies the agreement between the parties. Plaintiff breached the agreement requiring consent to sublet. Plaintiff did not allege an excuse for his breach. Plaintiff failed to allege compliance with the terms of the lease agreement.

      Plaintiff opposes the demurrer on grounds Defendant is arguing the merits which is not at issue.

      Defendant argues the opposition is flawed as Plaintiff did not provide any law in support of the opposition.

      To state a cause of action for breach of contract, the plaintiff must allege and prove facts showing (1) the existence of the contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages to the plaintiff. (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97–98.) Plaintiff may also allege the legal effect of the contract rather than its precise language. (Id.) Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199. Alleging the legal effect means alleging the making and the substance of the relevant terms. (Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) Plaintiff may also attach a copy of the written contract to the complaint. (Id.)

      All of Defendant’s arguments go to the merits of the claim. In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

A demurrer reaches defects that appear on the face of the complaint. The court does not go beyond the four corners of the pleading. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838). A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiff’s ability to prove them, or the possible difficulty in making such proof. (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 840).

      The complaint includes the written lease agreement and the addenda thereto. (Complaint, ¶ Ex. 1.) The term which is the subject of the breach and Defendant’s breach are alleged. (Complaint, ¶ 23-25.) Plaintiff alleges that he performed his obligations consistent with the agreement’s requirements to sublet. (Complaint, ¶¶ 12, 44.) Plaintiff alleges damages caused by the breach. (Complaint, ¶ 28.)

B.     Demurrer to the claim for breach of the implied covenant of good faith and fair dealing is SUSTAINED.

      As Defendant observes, the implied covenant is embedded within a contract, requiring the parties to act in good faith in carrying out the terms of the contract. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589 ["A typical formulation of the burden imposed by the implied covenant of good faith and fair dealing is ‘that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.’"].) Therefore, the two elements necessary to state this claim are that benefits due under the contract must have been withheld and the reason for withholding benefits must have been unreasonable or without proper cause. (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151.)

      The complaint alleges that Defendant acted in bad faith when it  barred Plaintiff from holding public events  which are permitted under the Artist in Residence statute. (Complaint, ¶ 47-50.) Plaintiff does not allege that permitting the holding of public events was a benefit due under the contract.

C.     Demurrer to the claim for breach of the covenant of quiet enjoyment is OVERRULED.

      Implied in every lease agreement is a covenant that “the tenant shall have quiet enjoyment and possession of the premises." (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1034.)  To state a claim for breach of the covenant of quiet enjoyment, a tenant must show that Defendant substantially interfered with the tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.

      Plaintiff alleges that Carlson entered the premises at 2100 N. Main Street, B5 in Los Angeles, which Plaintiff leased from Carlson. (Complaint, ¶ ¶ 5-6.) The complaint alleges that Carlson entered the leased premises, barred entrance and egress, and harassed Plaintiff and his two minor children. (Complaint, ¶ 54.)  Plaintiff also alleges that Defendant held organized public events called “Artwalks,” which attracts 10,000 visitors for the purpose of residents to make sales to the public. (Complaint, ¶ 55.) Plaintiff alleges that the events substantially disrupt the normal life at the premises and violate the covenant of quiet enjoyment. (Id.) On January 22, 2024, Plaintiff sent a cease and desist letter demanding that the event not be held, but the event was held. (Complaint, ¶ 56.)

      Defendant argues that it retained exclusive control of common areas, the tenancy was created so that artists could live and work in the space, Plaintiff did not complain to Defendant until Defendant instituted  unlawful detainer proceedings, the claim is contrary to the fifth cause of action wherein Plaintiff alleges Defendant acted in bad faith for not permitting Plaintiff to sell his artwork, the event was lawfully held with the City of Los Angeles. Plaintiff did not have lawful possession at the time.

      These are all defenses to the claim based on facts outside of the pleading. The court does not determine merits at this stage. Additionally, inconsistency is allowed at the pleading stage. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29 [“a plaintiff is permitted to plead inconsistent or, ..., alternative counts.”].)  The claim is adequately alleged.

IV.   CONCLUSION

      Based on the foregoing, demurrer is sustained as to the fifth cause of action for breach of the implied covenant of good faith and fair dealing only. The demurrer is OVERRULED as to the second and fifth causes of action. Plaintiff is granted 30 days leave to amend the claim for breach of the implied covenant of good faith and fair dealing. (Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 69–70 [noting the “well-established rule that, even where the defect is one of substance, a demurrer should not be sustained without leave to amend if there is a possibility that subsequent amendments will supply omitted allegations and the plaintiff has not had a fair opportunity to so amend."].)