Judge: Ralph C. Hofer, Case: 24NNCV02601, Date: 2024-11-22 Tentative Ruling
Case Number: 24NNCV02601 Hearing Date: November 22, 2024 Dept: D
tentative ruling
Calendar: 10
Date: 11/22/2024
Case
No: 24
NNCV02601 Trial Date: None Set
Case Name: Gomez
v. Wong, et al.
DEMURRER
Moving Party:
Defendants Xin Wong and Harry Wong
Responding Party: Plaintiff
Michelle Gomez
RELIEF REQUESTED:
Sustain demurrer to Complaint
CAUSES OF ACTION: from
Complaint
1)
Fraud and Deceit
2)
Violation of California Civil Code section 1946.2
3)
Intentional Misrepresentation
4)
Negligent Misrepresentation
5)
Unjust Enrichment
6)
Trespassing
7)
Violation of California Civil Code section 1954
8)
Business and Professions Code section 17200, et seq.
9)
Breach of Implied Covenant of Good Faith and Fair
Dealing
10) Withholding
of Security Deposit, Violation of California Civil Code section 1950.5
11) IIED
12) NIED
SUMMARY OF FACTS:
Plaintiff
Michelle Gomez alleges that she was a tenant at residential property in Arcadia
which fell under the Tenant Protection Act of 2019. Plaintiff alleges that at all relevant times,
defendants Xin Wong and Harry Wong were aware of, and authorized or ratified
plaintiff’s occupancy of the subject property by virtue of their ownership and
management of the property.
Plaintiff alleges that plaintiff
rented the property in December of 1995, pursuant to a written lease agreement,
with the landlord at the time being Larry Koopmans, and there being three other
units residing on the plot of land along with the subject property. Plaintiff alleges that she heard in January
of 2023 through her neighboring unit tenants that Larry Koopman was planning on
selling the units.
The complaint alleges that in April
of 2023, all four units on the premises, including the property occupied by
plaintiff, received a 60 day notice to
vacate, and also a notice of ownership change, rent raise and other matters,
which instituted a 5% late fee for rent not received by the 5th day
of the month, raised the rent starting on June 1, 2023 from $1,100 to $1,205, and
stated that defendants intended to “purchase the property for our own
use.” The letter stated that because
defendants intended to use the property for their own use, plaintiff would have
to vacate the property by June 30, 2023, but that if plaintiff would move out
by May 31, 2023, defendants would pay plaintiff a moving incentive of
$7,000.00.
Plaintiff alleges that plaintiff
met with defendants to discuss the moving date and cash incentive, and agreed
to vacate the property by May 31, 2023 in exchange for the cash incentive. Plaintiff met with defendants on May 31, 2023
to move out and give defendants the key in exchange for the cash
incentive. On that evening, strangers
showed up at the property, looking in and around the property, and on June 1,
2023, plaintiff saw an advertisement on Apartments.com advertising the subject
property for rent.
The complaint alleges that the
advertisement included pictures of the inside and outside of the property,
which were clearly taken while plaintiff was residing there, as her personal
belongings were on display in the photographs.
Plaintiff alleges that at no time during her tenancy did she permit
defendants to enter the property to take photographs, and did not give the
appraiser from the bank permission to share photographs taken for the appraisal. Plaintiff alleges that defendants trespassed
onto the subject property during plaintiff’s tenancy, or engaged in an invasion
of her privacy by procuring the photographs taken by the appraiser and posting
them online.
Plaintiff alleges that in June of
2023, defendants leased the subject property to a woman who is not a member of
defendants’ family, and that defendants’ family have at no time resided in the
subject property, moved into the property, or used the property for their own
use as claimed in the notice of ownership change. Plaintiff alleges that defendants leased the
subject property to the new tenant for $3,290 per month, and that defendants
wrongfully misrepresented that they were going to use the property for their
own use to circumvent eviction and rent control laws, to force plaintiff out of
the property so they could raise the rent prices and maximize profits from the
property. It is also alleged that when
plaintiff received her security deposit back, defendants returned just $600 of
the $900 deposit, stating that the $300 retained was for a “minimum, moving
fee,” without any description of what that meant or on what basis defendants
were permitted to keep the $300.
The complaint alleges that
plaintiff has sustained immense economic injury as a result of defendants’
conduct, having been forced to move from her rent-controlled apartment which
was her home for twenty years, having to find a new apartment on a tight timeline,
and now paying rent in excess of her budget.
Plaintiff alleges she has also suffered injury by being forced to incur
moving expenses, and by defendants wrongfully withholding a portion of her
security deposit.
ANALYSIS:
Procedural
Untimely Opposition
Under CCP §1005(b):
“All papers opposing a motion…shall
be filed with the court and a copy served on each party at least nine court
days… before the hearing.”
Under CRC
Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late
filed paper, the minutes or order must so indicate.”
Here, the
opposition was filed on November 12, 2024 and served on November 11, 2024 for a
November 22, 2024 hearing date. Nine
court days before the hearing fell on November 8, 2024. The opposition was accordingly filed and
served one court day, three calendar days, late. This situation has been inconvenient for the
court and the courtroom staff, and unfair to the moving party who has been
deprived of those days within which to file a timely reply. The court, in its discretion, could refuse to
consider the untimely opposition. The court
likely will consider the opposition, but plaintiff is cautioned that in the
future the court may refuse to consider papers not filed in conformity with the
statutes, rules and procedures governing this litigation.
Substantive
First Cause of
Action—Fraud and Third Cause of Action—Intentional Misrepresentation
Defendants argue that fraud must be alleged specifically, and all
elements must be alleged.
To state a cause of action for
fraud, plaintiff must plead the following elements: A false representation,
actual or implied, or concealment of a matter of fact material to the
transaction which defendant had a duty to disclose, or defendant’s
promise made without intention to perform; defendant’s knowledge of the
falsity; defendant’s intent to deceive; plaintiff’s justifiable reliance
thereon; and resulting damage to plaintiff.
Pearson v. Norton (1964) 230 Cal.App.2d 1.
Generally, in a fraud cause of
action, a plaintiff must allege specifically how, what, where, to whom and by
what means a defendant made a misrepresentation. Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.
The complaint alleges in great
detail that defendants stated to plaintiff in writing in a letter received
April 14, 2023 at the subject property that defendants intended to “purchase
the property for our own use,” quoting the misrepresentation language. [Complaint, paras. 25, 26, 50, 69]. This recitation appears to be sufficiently
specific. In addition, the demurrer does not explain what is missing.
It is alleged that the
representation was not true, that plaintiff reasonably relied on this
misrepresentation, and that it caused her in reasonable reliance to give up her
rent-controlled apartment, which she did, to her economic injury. [Complaint, paras. 33, 35, 37, 50-55, 70-75]. This showing is sufficient to allege a fraud and
intentional misrepresentation claim.
The demurrer argues that plaintiff
has failed to define or explain the phrase, “for their own use,” but this allegation
is not a pleading requirement in this context.
The demurrer argues that the complaint does not allege a fraud claim,
but rather alleges a claim of buyer’s remorse after plaintiff agreed to vacate
the property for a moving incentive. The
claim is clearly that plaintiff was fraudulently induced to accept a buyer’s
incentive and to relocate based on representations that defendants had
purchased the property for their own use, and would thereby be entitled to
evict plaintiff, which it is alleged is not true. As argued in the opposition, there are
allegations that the property was re-rented immediately at a higher price, and
not occupied by a family member of defendants, further supporting the
allegations that defendants intended to deceive. The complaint is sufficient in this regard. Hence,
the demurrer to these causes of action is overruled.
Second Cause of Action—Violation of Civil Code Section
1946.2
Civil Code
section 1946.2 provides, in pertinent part:
“(a) Notwithstanding any other law,
after a tenant has continuously and lawfully occupied a residential real
property for 12 months, the owner of the residential real property shall not
terminate a tenancy without just cause, which shall be stated in the written
notice to terminate tenancy.”
The
complaint here alleges that plaintiff has resided in the property since
December of 1995, so more than twelve months, and that defendants represented
that they needed her to vacate the property because they bought it for their
own use, when they were not doing so, and therefore had no just cause to evict. This recitation is sufficient to allege a
violation of the section. [Complaint,
paras. 59-66].
Defendants
again argue that what occurred here is that plaintiff negotiated a cash for
keys agreement with defendants, which id not a violation of the statute. The plaintiff
accepted pursuant to the deal a generous pay out to vacate. Hence, the
plaintiff did not suffer damages. Defendants again mischaracterize the
allegations of the pleading itself and the alleged wrongful conduct. The argument is more a defense to plaintiff’s
claims than an insufficiency in the pleading.
The demurrer will be overruled.
Fourth Cause of Action—Negligent Misrepresentation
Defendants
argue that the cause of action, since it is based on fraud, must be alleged
with particularity. As discussed above,
the details of the misrepresentation are stated with particularity in the
pleading.
Defendants
also argue that a negligent misrepresentation cause of action cannot be based
on a false promise of future performance.
This cause
of action does not allege that there was a promise to plaintiff that defendants
would move into the property which defendants then breached, but that
defendants made a representation concerning their intended use of the property
to support an eviction, and alleges that:
“Although Defendants may have
honestly believed that the representation was true, Defendants had no
reasonable grounds for believing the representation was true when they made it,
considering the immediacy with which they changed their mind and decided to
post the Property for leasing, and ultimately lease the Property rather than
using it for their own purposes.”
[Complaint, para. 81].
As argued in the opposition, this
cause of action is intended to alternatively allege negligent
misrepresentation, should the trier of fact view defendants’ intent as reckless
rather than intentional. This approach is
appropriate. The demurrer is overruled.
Fifth Cause of Action—Unjust Enrichment
Defendants argue that unjust
enrichment is not a stand alone cause of action. Defendants rely on Sepanossian v. National
Ready Mix Company, Inc. (2023) 97 Cal.App.5th 192, in which the
Second District found that the trial court had property granted a motion for
judgment on the pleadings in connection with a putative class action against
the seller of mixed concrete products on a cause of action for unjust
enrichment.
The Second District observed:
“As an initial matter, “[t]here is
no cause of action in California labeled ‘unjust enrichment.’ ” (City of
Oakland v. Oakland Raiders (2022) 83 Cal.App.5th 458, 477, 299 Cal.Rptr.3d
463 (Oakland).) Rather, an unjust enrichment claim is grounded in equitable
principles of restitution. (See Hirsch v. Bank of America (2003) 107
Cal.App.4th 708, 721, 132 Cal.Rptr.2d 220 (Hirsch); see also Durell
v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370, 108 Cal.Rptr.3d 682
(Durell) [“Unjust enrichment is synonymous with restitution.”].) Unjust
enrichment is sometimes considered “ ‘ “a general principle, underlying various
legal doctrines and remedies,” ’ rather than a remedy itself.” (Melchior v.
New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d
347.)
Unjust enrichment is generally an
inapplicable basis for restitution where the parties have an enforceable
express contract, however, “restitution may be awarded in lieu of breach of
contract damages when the parties had an express contract, but it was procured
by fraud or is unenforceable or ineffective for some reason,” or “where the
defendant obtained a benefit from the plaintiff by fraud, duress, conversion,
or similar conduct.” (Durell, supra, 183 Cal.App.4th at p. 1370, 108
Cal.Rptr.3d 682.) “Common law principles of restitution require a party to
return a benefit when the retention of such benefit would unjustly enrich the
recipient; a typical cause of action involving such remedy is ‘quasi-contract.’
” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661, 124 Cal.Rptr.3d
664; see Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51, 57 Cal.Rptr.2d
687, 924 P.2d 996 [“Under the law of restitution, an individual may be required
to make restitution if he is unjustly enriched at the expense of another.”].).
Sepanossian, at
206-207.
However, the Second District did
not base its holding on the non-existence of a claim or remedy labelled “unjust
enrichment.” Rather, the ruling was based on the fact that there were express
form contracts in the case, so there was no quasi contract claim for
restitution. The court also found that and because the remedies at law in that case,
alleged under a separate cause of action under the UCL were adequate such that
a separate claim for restitution was unnecessary. Sepanossian, at 207.
This court, given the various ways
in which the unjust enrichment claim or remedy has been treated by the courts
of appeal, is reluctant to
sustain at the pleading stage a demurrer on the ground the cause of action is
not a recognized cause of action. Hence, the court defers any determination of
this issue following the development of actual proof in this matter.
However, defendants also argue that it is not clear what the basis for
any restitution claim is available on this complaint. The cause of action as currently stated does
not seek restitution from defendants for monies they unjustly received from
plaintiff, but from other persons, such as the new tenant. [Complaint, paras. 90-93].
The cause of action does not mention the alleged retention of the funds
plaintiff paid in the security deposit, for example. The opposition does not clarify the
restitutionary basis of this claim, arguing that defendants gained financially
by securing a higher-paying tenant. This
situation is not a payment made by plaintiff which can be restored to her. The demurrer accordingly is sustained with
one opportunity to amend to permit plaintiff to more clearly allege a basis for
restitution of funds received from plaintiff. Plaintiff is encouraged on
amendment to entitle such a claim using other than the “unjust enrichment”
phraseology.
Sixth Cause
of Action—Trespassing and Seventh Cause of Action—Violation of Civil Code section 1954
Defendants concede
that these causes of action are a common law version and statutory version of
trespass.
The elements of a cause of
action for trespass are: Plaintiff’s lawful possession or right to possession
as owner or otherwise of described property; Defendant’s wrongful act of
trespass thereon; proximately causing damage to plaintiff or the property. Morgan v. French (1948) 70 Cal.App.2d
785, 787.
Under Civil Code § 1954:
“(a) A landlord may
enter the dwelling unit only in the following cases:
(1) In case of emergency.
(2) To make necessary or agreed repairs, decorations, alterations
or improvements, supply necessary or agreed services, or exhibit the dwelling
unit to prospective or actual purchasers, mortgagees, tenants, workers, or
contractors or to make an inspection pursuant to subdivision (f) of Section
1950.5.
(3) When the tenant has abandoned or surrendered the premises.
(4) Pursuant to court order.”
Defendants argue that there is no
actual substantial harm from any alleged trespasses, and the fact that
defendant had photos showing what the property looked like while plaintiff was
residing there does not establish that defendant committed a trespass. The pleading alleges that due to the
trespass, plaintiff suffered emotional distress. [Complaint, paras. 102-103]. There are various facts alleged concerning
the circumstances which could support a reasonable conclusion that the
photographs were obtained by entering plaintiff’s apartment without her
consent. [Complaint, paras. 99, 101]. The demurrer to these causes of action are
overruled.
Eighth
Cause of Action—Business & Professions Code section 17200, et seq.
Defendants argue that a cause of
action under this section is demurrable when it is derivative of other causes
of action that fail. Defendants argue
that since this cause of action is based on earlier claims that are baseless,
no claim is stated.
Since the demurrer is overruled to all but one of the preceding causes
of action, the demurrer on this ground is overruled.
Ninth Cause
of Action—Breach of Implied Covenant of Good Faith and Fair Dealing
Defendants argue that a demurrer may be sustained where one cause of
action is duplicative of another cause of action, such as where it is based on
the same facts or seeks the same damages as a breach of contract claim. There is no breach of contract cause of
action asserted here which can be found to have been duplicated.
To the extent the argument is that the breach of implied covenant claim
is a restatement of the fraud claim, that is not strictly true, as the wrongful
conduct is not directed at a duty not to misrepresent, but a duty not to engage
in conduct which interferes with plaintiff obtaining the benefit of a contract,
in this case, the lease. [Complaint
paras. 126-131]. In addition, under the
liberal rules of pleading, parties are permitted to plead duplicative,
alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles
(1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180; Adams v. Paul
(1995) 11 Cal.4th 583, 593 (“a party may plead in the alternative
and may make inconsistent allegations.”).
Moreover,
it has been observed that the duplicative standard referred to by defendants is
not currently listed as a ground to sustain a demurrer under CCP § 430.10. See Blickman Turkus, LP v. MF Downtown
Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890 (“This is not a
ground on which a demurrer may be sustained.”)
The
demurrer to this cause of action is overruled.
Tenth Cause of Action—Withholding of Security Deposit
The
demurrer states that “Defendant does not demur to the 10th cause of
action.”
Eleventh Cause of Action—IIED
and Twelfth Cause of Action—NIED
It
is held that conduct to be outrageous must be “so extreme as to exceed all
bounds of that usually tolerated in a civilized community,” and be “of a nature
which is especially calculated to cause, and does cause, mental distress…” Christensen, 54 Cal.3d at 903,
905.
Negligent infliction of emotional
distress requires negligence and severe emotional disturbance. Marlene F. v. Psychiatric Medical Clinic,
Inc. (1989) 48 Cal.3d 583, 588.
Case law has recognized that
outrageous conduct can include mental suffering occasioned by fear for safety
caused by a trespass Acadia California, Ltd. v. Herbert (1960) 54 Cal.2d
328, 337.
Defendants argue that the causes of
action fail to sufficiently allege extreme or outrageous conduct, or the
elements of a negligence claim.
The pleading here alleges intentional
fraud and trespass to support an IIED claim based on extreme and outrageous
conduct. With respect to NIED, plaintiff
has alleged a negligent misrepresentation claim, which the court has found
sufficiently stated.
The demurrer to these causes of
action are overruled.
RULING:
Demurrer to Complaint:
Demurrer is
OVERRULED to the first through fourth causes of action, the sixth through ninth
causes of action, and the eleventh and twelfth causes of action.
No demurrer is
brought to the tenth cause of action for withholding of security deposit,
violation of California Civil Code section 1950.5.
Demurrer is
SUSTAINED WITH LEAVE TO AMEND to the fifth cause of action for unjust
enrichment on the ground the cause of action does not clearly allege any basis
for restitution to plaintiff of funds defendants received from plaintiff which
unjustly enriched defendants and should be restored to plaintiff. Plaintiff on amendment is encouraged to
identify more clearly the title of the cause of action and the remedy sought.
Ten days leave to
amend the fifth cause of action only.
The parties are ordered to meet and confer in full
compliance with CCP § 430.41 before any further demurrer may be filed.
DEPARTMENT D IS CONTINUING
TO CONDUCT AND ENCOURAGE
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