Judge Ralph C. Hofer, Case Number: 24NNCV00623, Date: 2024-06-14 Tentative Ruling

The complaint alleges that in 2006, plaintiff suffered a severe injury at work and spent the next few years trying her best to recover, culminating in a major spinal fusion surgery in April of 2009, which left her disabled.

The complaint alleges that in October of 2019, defendant, knowing that plaintiff was disabled and on social security, attempted to raise plaintiff’s rent from $1,000 per month to $1,600 per month in violation of California’s Rent Stabilization Ordinance. Defendant began to harass plaintiff with relentless calls and messages, demanding the increased rent and threatening to evict plaintiff, ultimately serving a 60 day notice to terminate tenancy. Plaintiff sought help from Legal Aid and was informed the rent increase and notice to terminate tenancy were unlawful. Plaintiff alleges that defendant continued to harass plaintiff through the holidays and only ceased when he realized that his rent increase and notice were in fact unlawful.

In December of 2021, plaintiff was rushed to the hospital for two more emergency surgeries, and in June of 2022 was again admitted to the hospital for emergency surgeries, and at all times kept defendant informed about her ongoing health complications and recovery needs.

The complaint alleges that once the eviction moratorium was lifted, in March of 2023, defendant informed plaintiff he intended to modify and refurbish then sell the subject property, and that her lease would no longer be valid as of August 1, 2023. Defendant indicated that property taxes were too high, and that his poor investment decisions had left him in financial need. Plaintiff alleges that defendant insisted that the lease would be terminated, despite knowing about the requirements of a “no fault just cause” termination of tenancy, as that code section is referred to in plaintiff’s lease agreement, and that none of the justifications provided by defendant were adequate.

The complaint alleges that defendant then renewed his campaign of harassment, subjecting plaintiff to a barrage of phone calls, text messages, letters, and voicemails, at all hours of the day and night, demanding to know when plaintiff would be leaving the property, and insisting she do so. Plaintiff alleges that beginning in August of 2023, defendant would show up at the adjacent unit at 5:45 am to conduct renovations, banging on the mailbox and wall which share a bedroom wall with plaintiff, repeatedly moving furniture in an unnecessarily loud way, and running a drill or impact driver to disrupt plaintiff’s sleep and rest, despite plaintiff’s request that defendant stop or adjust his hours so that plaintiff was not awakened before 6 a.m. every morning. Plaintiff alleges that this intentional harassment occurred almost every day from August 2023 to October 2023 when the property was sold.

It is also alleged that in October of 2023, plaintiff discovered that her utility accounts had been closed when her electricity bill was sent to collections and she lost her HEAP credit with the gas company, and later learned that defendant had closed the accounts in July, without alerting plaintiff.

The complaint alleges that through September 2023, defendant himself, as well as through his realtor, pressured plaintiff to sign an addendum to her lease that included additional “no fault just cause” grounds for eviction despite her having a right under California law to only sign a lease with substantially similar terms. Defendant then sold the property and informed the buyers that plaintiff had agreed and intended to leave, despite plaintiff never having agreed to waive her lease rights. When the new buyers purchased the property, they immediately served plaintiff with a notice of the termination of her tenancy.

The complaint alleges that defendant intentionally harassed and disrupted plaintiff for almost a full calendar year in the hopes that she would be forced to move despite her recovering from serious health conditions and being under no legal obligation to do so. Plaintiff alleges that defendant’s harassment prevented plaintiff from enjoying her property and forced her to suffer significant emotional distress, anxiety, anguish, humiliation, embarrassment, and loss of sleep.

Here, the complaint was personally served on defendant Christophersen on April 5, 2024. Thirty days from this date would have been May 5, 2024, a Sunday, with the next court day being May 6, 2024. The demurrer was not served until May 9, 2024, and not filed until May 10, 2024. This is three and four days late.

Defendant Christophersen demurs to this cause of action, arguing that the cause of action is insufficient because the pleading does not allege that plaintiff was ever dispossessed of or otherwise induced to vacate the premises, but it appears from the allegations that plaintiff remained in possession up until and after defendant is alleged to have sold the premises.

Under Civil Code § 1927, “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.”

“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 846 [122 Cal. Rptr. 114]; Guntert v. City of Stockton (1976) 55 Cal. App. 3d 131, 138 [126 Cal. Rptr. 690].)”

The elements of a cause of action for breach of covenant of quiet enjoyment are “an act or omission on the part of the landlord” which “interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.

Defendant relies on Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1300, in which the court of appeal found that the trial court had erred in sustaining a demurrer to several causes of action, concluding that in that case, in which there had been an alleged eviction, the cause of action for breach of the covenant of quiet enjoyment had been sufficiently stated. The language relied upon, in context, states:

“As to appellant's remaining causes of action for constructive eviction, breach of the covenant of quiet enjoyment, and retaliatory eviction, we note that every lease includes a covenant of quiet possession and enjoyment. (Civ. Code, § 1927.) This covenant is breached upon actual or constructive eviction of the tenant. (McAlester v. Landers (1886) 70 Cal. 79, 82, 11 P. 505.) Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time. (Kulawitz v. Pacific Woodenware Paper Co. (1944) 25 Cal.2d 664, 670, 155 P.2d 24; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612–613, 272 P.2d 938.)

As this court explained recently, “ ‘[i]t has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. [Citations.] Initially, the covenant related solely to the right of possession and only protected the lessee against any act of molestation committed by the landlord or anyone claiming under him, or by someone with paramount title, which directly affected the tenant's use and possession of the leased premises; the covenant was construed to protect the lessee against physical interference only. [Citation.] In recent years, the covenant of quiet enjoyment has been expanded, and in this state, for example, it insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]’ [Citations.]” (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 291–292, 167 Cal.Rptr.3d 173 (Nativi.)).”

As noted, whether eviction had to have been alleged to support the cause of action in that case did not need to be directly addressed by the court of appeal, as an eviction had been alleged. It also appears that eviction allegations were obviously required for at least one of the other causes of action addressed. As noted in the opposition, in this matter the claim is not for constructive eviction but for landlord harassment, as codified in Civil Code section 1927, quoted above, which plaintiff argues is not a statute which expressly requires actual dispossession.

“The Supreme Court stated in Standard Live Stock Co. v. Pentz (1928) 204 Cal. 618, 625, 269 P. 645 ... that ‘the covenant of quiet possession in a lease is not breached until there has been an actual or constructive eviction.’ Nevertheless, some authorities recognize that a tenant may sue for breach of the covenant while remaining in possession. [Citations.]” (Nativi, supra, at p. 292, 167 Cal.Rptr.3d 173.)

In addition, Civil Code section 1940.2 makes it unlawful for a landlord to commit certain specified acts “for the purpose of influencing a tenant to vacate a dwelling.” (Civ.Code, § 1940.2, subd. (a).) The purpose of Civil Code section 1940.2 is to prohibit a landlord's use of “ ‘constructive’ self-help eviction” techniques (Friedman et al., Cal. Practice Guide: Landlord-Tenant, supra, ¶ 7:42, p. 7-14.1 (rev. # 1, 2013)), such as theft, extortion, interference with a tenant's quiet enjoyment, or trespass “for the purpose of influencing a tenant to vacate a dwelling.” (Civ. Code, § 1940.2, subd. (a).)

Defendant also argues that the pleading is uncertain, as the action is predicated on the existence of some form of contract for the property relating to plaintiff’s alleged tenancy, but it cannot be ascertained whether the contract was oral, written, or implied by conduct, and the material terms are not alleged.

It is recognized that every residential lease includes an implied covenant of quiet enjoyment. Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846 (“It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment.”)

“53. Implied in the rental agreement between Defendants and Plaintiff is a covenant that Defendants would not interfere with Plaintiff’s quiet enjoyment of the premises during her tenancy. Defendants rented the premises out to Plaintiff to live in as a primary residence.

54. Implied in each rental agreement in California, oral or written, is a covenant that the landlord will not interfere with the tenant’s quiet enjoyment of the premises during the term of his or her tenancy. California Civil Code § 1927 specifically provides that “(a)n agreement to let upon hire binds the letter to secure the hirer the quiet possession of the thing hired during the term of the hiring…” and as such, this duty applied to Defendant as owner and/or manager of the Property.”

This showing is sufficient to allege the existence of the implied covenant. The cause of action is not for breach of contract and does not seek any relief for alleged breach of the lease agreement. The complaint is not uncertain on this ground.

The cause of action does not appear fairly characterized as “founded upon a contract,” when it is founded upon an implied covenant. As noted above, and as argued in the opposition, that covenant arises regardless of the nature of the residential lease.

“33. Defendant insisted that Ms. Goldmann’s lease would be terminated, despite knowing about the requirements of California Civil Code 1946.2 which sets forth the requirements of a “no fault just cause” termination of tenancy, as that code section is referenced in Ms. Goldmann’s lease agreement. None of the justifications provided by Defendant were adequate justifications for the termination of her tenancy….

40. On Sunday August 6, 2023, Defendant told Ms. Goldmann “you neither have a lease, nor do you have permission to remain in possession of the unit at 490,” despite the fact that Ms. Goldmann did in fact possess a lawful lease, and Defendant did not have sufficient grounds to terminate her tenancy under the law….

48. Through September, Defendant himself, as well as through his realtor, pressured Ms. Goldmann to sign an addendum to her lease that included additional “no fault just cause” grounds for eviction despite her having a right under California law to only sign a lease with substantially similar terms.”

It is a reasonable conclusion from these allegations is that the lease was in writing, and this is not a situation where it “cannot be ascertained from the pleading” that plaintiff is making such an allegation. Plaintiff in the opposition quotes paragraph 48 of the complaint and argues that, even if plaintiff were required to allege the form of the contract giving rise to the leasehold, it is clear from this allegation that her lease agreement was in writing, as pressure to force plaintiff to “sign an addendum to her lease,” only makes sense in the context of a written lease agreement.

Defendant also demurs to the paragraphs of the pleading which set forth “Joint Alter Ego Allegations,” arguing that they are improper as there are no other named defendants in this matter, and the allegations appear directed to an unspecified and unidentified business entity.

Defendant has not brought a motion to strike, and this argument is not properly made on demurrer, as it not addressed to defeat any of the alleged causes of action. A demurrer does not lie to only part of a cause of action (or to a particular type of damage or remedy), and a cause will survive demurrer if there are sufficient allegations that might entitle the pleader to relief. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003, 2nd Dist.) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.

“On information and belief, Defendant Christophersen owned the subject property as a trustee. Plaintiff is ignorant of the true name and capacity of the trust that owns the subject property but will amend this complaint once this information is ascertained.”

Plaintiff argues that under these circumstances, the inclusion of the alter ego allegations does not render the complaint uncertain or ambiguous, as they are included in an abundance of caution given plaintiff’s ignorance of the true nature and capacity of the entities that owned the subject property. This approach suggests that plaintiff appropriately intends to determine through discovery what proper business entity is involved, and to then determine whether to include that business entity in this lawsuit in substitution of a Doe defendant, if proper.

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