Judge: Michelle Williams Court, Case: 20STCV45441, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV45441    Hearing Date: August 11, 2022    Dept: 74


Demurrer to Second Amended Complaint

TENTATIVE RULING: Defendants’ Demurrer to Second Amended Complaint is SUSTAINED with leave to amend as to the seventh cause of action and without leave to amend as to the eighth cause of action.  Plaintiffs are granted 20 days leave to amend solely to clarify which Plaintiffs assert claims under the seventh cause of action.  

On November 25, 2020, Plaintiffs John Buck, Brandon Williams, Claudia Escobedo, Richard Powell, Scott Waehmer, Luz Tapia, Roberto Gonzalez Govin, Steven Alan Green, Brandon Kelley, and Jeffrey Winner file this action against Defendants St Moritz Apartments, LLC and Winstar Properties, LLC.

After the Court granted Plaintiffs’ motion for leave to amend, Plaintiffs filed the operative Second Amended Complaint, (“SAC”), asserting causes of action for: (1) breach of implied warranty of habitability; (2) breach of statutory warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) negligence; (5) violation of Civil Code section 1942.4; (6) private nuisance; (7) violation of Tenant Anti-Harassment Ordinance; and (8) declaratory relief. 


On June 29, 2022, Defendants filed their demurrer to the seventh and eighth causes of action asserted in the SAC arguing the seventh cause of action is based upon an ordinance that is not retroactive and therefore it does not apply to all Plaintiffs and that the eighth cause of action is not ripe or necessary. 


In opposition, Plaintiffs agree the seventh cause of action should be limited to a subset of the Plaintiffs and argue the declaratory relief cause of action sufficiently alleges an actual controversy. 


In reply, Defendants note Plaintiffs’ agreement as to the seventh cause of action and reiterate their arguments regarding the declaratory relief claim. 

Meet and Confer

Defendants submitted the declaration of Patrick Torsney, which satisfies the requirements of Code of Civil Procedure section 430.41.

Judicial Notice

Defendants request the Court take judicial notice of certain portions of the Los Angeles Municipal Code as Exhibit A. This request is GRANTED. (Evid. Code §§ 452(a); 452(c).) 

Defendants’ request for judicial notice only addressed Exhibit A. Defendants also attached “true and complete copies of the applicable portions of the plaintiffs’ discovery responses and deposition” to the declaration of attorney Torsney as Exhibits A-F. Plaintiffs objected to the Court’s consideration of these documents, though failed to cite any authority in their objection. However, the Court shall not consider these documents due to Defendants’ failure to request judicial notice of thereof in connection with the moving papers, their failure to include the associated verifications, and because they are irrelevant as Plaintiffs have agreed to limit the seventh cause of action to certain Plaintiffs. 



A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
A special demurrer to a complaint is appropriate when the grounds of the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor demurrers based on uncertainty, which the court strictly construes even when the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
If the demurrer is sustained, plaintiff must prove the possibility of cure by amendment. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79).) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.) 
The Court Shall Consider the Demurrer on the Merits

Plaintiffs contend the Court should disregard the demurrer due to Defendants’ failure to provide a table of contents and table of authorities as required by California Rules of Court, rule 3.1113(f). (Opp. at 6:21-25.) Plaintiffs do not cite any authority supporting this contention and are not prejudiced by their omission. (See generally Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 410 (“A point totally unsupported by argument and authority may be rejected by the reviewing court without discussion.”).) While Defendants are expected to comply with the California Rules of Court, the Court shall hear the demurrer on the merits. 

Violation Of Tenant Antiharassment Ordinance – Seventh Cause of Action 

The seventh cause of action is asserted by all Plaintiffs and is based upon portions of Article 5 .3 the City of Los Angeles ordinance which was added to Chapter IV of the Los Angeles Municipal Code. (SAC ¶¶ 39-41.) 

Defendants argue that the anti-harassment tenant ordinance provided by the Los Angeles Municipal Code, which became effective August 6, 2021, does not apply retroactively. “An ordinance is not to be given a retroactive effect unless such intention clearly appears. It is to be construed according to the intention of the legislative body enacting it; and in ascertaining that intention, the courts must presume a prospective and not a retroactive operation was intended, unless such presumption is negatived by express language.” (Stanford v. Bailey, Inc. (1955) 132 Cal.App.2d 725, 731.) While numerous provisions of the Los Angeles Municipal Code provide for retroactive application, (see e.g. LA Muni. Code art. 14.6 § 49.99.5; art. 8 § 98.0419(c)), the Tenant Anti-Harassment Ordinance contains no retroactivity provision or any language which indicates it would apply retroactively. Moreover, the ordinance’s requirement of written notice before the commencement of a civil action, (LA Muni. Code art. 5.3 § 45.35(F)), further weighs against retroactive application of the Ordinance.

Defendants noted in their meet and confer declaration that Plaintiffs agreed only certain plaintiffs may assert claims under this ordinance. (Torsney Decl. ¶ 2.) The parties acknowledge Plaintiffs attempted to file an amended pleading, but it was rejected for filing. (Ibid. See also Opp. at 9:9-20.) The parties could have, but did not, submit a stipulation for leave to amend. 

In opposition, “Plaintiffs agree to confine the Seventh Cause of Action against all defendants only to those tenants who resided in the Subject Property when the Ordinance became effective, as follows: 1. Brandon Williams; 2. Richard Powell; 3. Steven Allen Green; and 4. Brandon Kelley.” (Opp. at 9:13-20.) In reply, Defendants contend “the demurrer to the seventh cause of action should be sustained so that cause of action is properly confined to the four plaintiffs, as agreed to by Plaintiffs.” (Reply at 4:2-4.) 

The demurrer to the seventh cause of action is SUSTAINED. Plaintiffs are granted leave to amend solely to clarify which Plaintiffs assert the seventh cause of action. 

Declaratory Relief  - Eighth Cause of Action

The eighth cause of action refers to attorneys’ fee and indemnity provisions in Plaintiffs’ leases alleging that the $500 and $600 caps on attorneys’ fees are unconscionable and one-sided attorneys’ fees provisions should be deemed reciprocal pursuant to Civil Code section 1717. (SAC ¶¶ 42-88.)

Defendants contend that the declaratory relief cause of action, which addresses the parties’ attorneys’ fee provisions, is not ripe and would result in an advisory opinion. (Dem. at 6:16-8:2.) The Court agrees and therefore the Court need not address Defendants’ other merits-based arguments. (Dem. at 8:3-15:2.) 

The declaratory relief cause of action seeks a determination that a cap on a prevailing party’s recovery of reasonable attorneys’ fees is improper and a judicial determination regarding the application of Civil Code section 1717 to Plaintiffs’ leases. (SAC ¶¶ 42-88.) “In determining whether a controversy is ripe in the context of a request for declaratory relief, we engage in the two-pronged analysis . . . (1) whether the dispute is sufficiently concrete to make declaratory relief appropriate; and (2) whether the withholding of judicial consideration will result in a hardship to the parties.” (Communities for a Better Environment v. State Energy Resources Conservation & Development Com. (2017) 19 Cal.App.5th 725, 733.) Here, the asserted dispute regarding the application of Civil Code section 1717 or the enforceability of a cap on prevailing party attorneys’ fees only become ripe after the conclusion of the case and a noticed motion for attorneys’ fees. (See Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 7 (“Code of Civil Procedure section 1033.5 obliges a party seeking attorney fees under Civil Code section 1717 to do so by a noticed motion.”).) Delaying a resolution of the parties’ fee related disputes will not result in a hardship to the parties. Determination of the applicability of Civil Code section 1717 or the enforceability of the attorneys’ fee caps, at this stage, would result in “a purely advisory opinion based on hypothetical facts or speculative future events,” including any parties’ entitlement to more than $600.00 in attorneys’ fees as the prevailing parties in this action. (Hayward Area Planning Assn, Inc. v. Alameda County Transp. Authority (1999) 72 Cal.App.4th 95, 102.) 

Moreover, Plaintiffs’ request is an improper use of the declaratory relief statute as the determination of whether this habitability lawsuit falls within Section 1717 or the terms of the agreement will be determined at the appropriate time in this case. (See e.g. General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470 (“The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.”).) Pursuant to Code of Civil Procedure section 1061, “[t]he court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Such is the case here. The determinations sought are not necessary or proper under the circumstances as the validity and application of any fee provisions will be determined at the conclusion of this action. (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 648 (“when resolution of the controversy over future remedies would have little practical effect in terms of altering parties' behavior, courts have considerable discretion, pursuant to Code of Civil Procedure section 1061, to deny declaratory relief because it is not necessary or proper at the time under all the circumstances.”).) 

The demurrer is SUSTAINED without leave to amend as to the eighth cause of action for declaratory relief.