Judge: Peter A. Hernandez, Case: 23STCV30193, Date: 2024-09-06 Tentative Ruling

Case Number: 23STCV30193    Hearing Date: September 6, 2024    Dept: 34

Fishman v. Michael & Patricia Tenenbause as Trustees of the Elevator Trust Date November 22, 20221 (23STCV30193)

Coastline Asset Management LLC v. Fishman (24STCV05884)

Defendants Terry Alexander Burton and Delena Zimmerman’s Demurrer to the Complaint is OVERRULED. Defendants are ordered to file an Answer within 10 days.

Background[1] 

23STCV30193

Plaintiff Lara Fishman (“Plaintiff Fishman”) alleges the following:

Beginning on or about November 23, 2022, Plaintiff Fishman signed a lease to rent a single living unit located at 18125 Coastline Drive, Unit D, Malibu, CA 90265 (the single living unit is herein referred to as “Unit” and the entire residential premises located at 18125 Coastline Drive, Malibu, CA 90265 is herein referred to as “PREMESIS”). On or about December 1, 2022, Plaintiff Fishman confronted Defendant Michael Tenenbaum  (“M. Tenenbaum”) that he did not properly prepare the remodeled UNIT for occupancy, from the inception of the tenancy, and the Unit had not been permitted for the extensive remodel.

From the inception of the tenancy, the Unit has not had properly maintained water pressure nor an inoperable funicular.  From the inception of the tenancy, the Unit has had many health hazards including a toxic sewage gas leak, threat of asbestos from an exposed ceiling space, exposed electrical wiring, broken window, unlockable door, and window. Although Defendants Michael and Patricia Tenenbaum have known that the Unit has substandard living conditions, they have actively concealed the existence of these facts from Plaintiff Fishman, or made intentional fraudulent representations. Defendant M. Tenenbaum has made numerous comments evidence his hostility toward women in general and toward Plaintiff in particular based solely on her status as a woman.

On December 7, 2024, Plaintiff Fishman filed a Complaint, asserting causes of action against Defendant Michael and Patricia Tenenbaum as trustees of The Elevator Trust date[d] November 22, 2021 (“Defendants”), and Does 1-100 for:

1.               Violation of Business and Professions Code sec 17200 et seq and 17500;

2.               Violation of Cal. Civil Code §789.3(b) and/or §1942.5;

3.               Breach of Contract;

4.               Negligence;

5.               Negligent Misrepresentation;

6.               Fraud;

7.               Intentional Infliction of Emotional Distress; and

8.               Violation of Fair Housing Act.

A Case Management Conference is set for September 6, 2024.

24STCV05884

Plaintiff Coastline Asset Management, LLC (“Plaintiff Coastline”) alleges as follows:

Plaintiff is the assignee of the Defendant Michael and Patricia Tenenbaum as trustees of The Elevator Trust date[d] November 22, 2021 (“Landlord”). Defendant Lara Fishman (“Defendant Fishman”) and Landlord entered into a Residential Lease Agreement on or about November 24, 2022 (the “Lease”), for a one-year term starting on December 1, 2022, and ending on December 1, 2023. The Lease obligated Defendant Fishman to pay rent in the amount $8,750 per month for each month of the Lease. Defendant Fishman failed to pay rent from May 2023 through November 2023.

Demurrer in 23STCV30193

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendants demur, pursuant to Code of Civil Procedure § 430.10, subdivision (e), to the first, second and eighth causes of action in Plaintiff Fishman’s Complaint, on the basis that they fail to state facts sufficient to constitute causes of action.

First Cause of Action

Plaintiff’s first cause of action alleges a violation of Business and Professions Code section 17200. The elements required to state a cause of action for violation of Business & Professions Code section 17200 are (1) a business practice, (2) that is unfair, unlawful or fraudulent, and (3) an authorized remedy. (Bus. and Prof. Code § 17200). When a plaintiff alleges a UCL action against a defendant, the plaintiff must allege that an “injury in fact [or] lost money or property as a result of [alleged] unfair competition” of defendant. (Schultz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.) Here, Plaintiff Fishman does not allege a violation of law, or that somehow she was induced into entering into the lease with Defendants because of false advertising. Moreover, there are no allegations that there were fraudulent business practices.

Further, in order to have standing under the UCL, a private plaintiff must allege that she “has suffered injury in fact and has lost money or property as a result of the unfair competition.” (Bus. & Prof. Code § 17204). Plaintiff Fishman has failed to identify any money or property lost as a result of Defendants’ unlawful business practices.

The demurrer is sustained.

Second Cause of Action

The Second Cause of Action concerns two statutory provisions. First, Section 789.3(b) of the Civil Code provides that “[] a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully: (1) [p]revent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device; (2) [r]emove outside doors or windows; or (3) [r]emove from the premises the tenant’s personal property, the furnishings, or any other items without the prior written consent of the tenant[.] . . . Nothing in this subdivision shall be construed to prevent the lawful eviction of a tenant by appropriate legal authorities, nor shall anything in this subdivision apply to occupancies defined by subdivision (b) of Section 1940.” Here, it is unclear what allegations concern this cause of action. The court cannot find any allegations that Defendants “locked out” Defendant Fishman, removed any doors or windows, or removed her property.

Additionally, Plaintiff Fishman also alleges a Civil Code section 1942.5. Under this provision,  “[i]f the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent,” then “the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of” five specified events. (Cal. Civ. Code § 1942.5(a).) Here, again, a review of the Complaint does not warrant this cause of action.

To the extent that the court grants leave to amend, these two statutory provisions should be separated out into two separate causes of action.

Eighth Cause of Action

Under this cause of action, it appears that Plaintiff Fishman seeks relief under the Federal Fair Housing Act and the California Housing Discrimination Law. The Complaint is devoid of the specific provisions of each law and the court cannot and will not speculate as to the specific provisions that Plaintiff Fishman seeks to enforce.

The demurrer is sustained.

Demurrer in 24STCV05884

Legal Standard

See Analysis in 23STCV30193

Discussion

Defendant Fishman demurs, pursuant to Code of Civil Procedure § 430.10, subdivision (e), to the second cause of action in Plaintiff Coastline’s Complaint, on the basis that it fails to state facts sufficient to constitute a cause of action. Defendant Fishman also seeks to demurrer to the first cause of action on the basis that the lease agreement was not attached to the Complaint.

First Cause of Action

The court will summarily overrule the demurrer as to the first cause of action. First, the notice provision does not reflect the statutory basis for the demurrer of this cause of action, However, more importantly, “[i]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than the precise language.” (Construction Protective Services, Inc. v. TIG Speciality Ins. Co. (2002) 29 Cal.4th 189, 198-99.)

Second Cause of Action

“The essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) “The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)

“Fraud must be pleaded with specificity…[t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782 [emphasis in original].) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (emphasis in original; internal quotations and citation omitted].) Likewise, “[e]ach element in a cause of action for. . . negligent misrepresentation must be factually and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 C.A.4^th 513, 519 [citation omitted].)

Plaintiff Coastline has failed to plead the aforesaid cause of action with the requisite specificity.

The demurrer is sustained.