Judge: Ronald F. Frank, Case: 22TRCV01380, Date: 2023-02-14 Tentative Ruling
Case Number: 22TRCV01380 Hearing Date: February 14, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 14, 2023¿¿
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CASE NUMBER: 22TRCV01380
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CASE NAME: Dyniesha
Curtis, Cory Lee v. Kai T. Tsukiyama, et al
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MOVING PARTY: (1)
Demurrer – Kai T. Tsukiyama and Junko T. Tsukiyama, Trustee of the Mirai Trust
(2) Special Motion to Strike - Defendants,
Wright, Finlay & Zak, LLP and Arnold L. Graff
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RESPONDING PARTY: (1)
Plaintiffs, Corey Lee and Dyniesha
Curtis
(2)
Plaintiffs, Corey Lee and Dyniesha Curtis
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TRIAL DATE: None set¿
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MOTION:¿ (1) Demurrer¿ to Complaint
(2)
Special Motion to Strike Plaintiffs’ Complaint
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Tentative Rulings: (1) Defendants’ Demurrer sustained in part and overruled in part
(2)
Anti-SLAPP Motion Granted
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I. BACKGROUND¿¿
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A. Factual¿¿
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On December 2, 2022, Plaintiffs, Cory Lee and Dyniesha
Curtis (collectively “Plaintiffs”) filed a complaint against Kai T. Tsukiyama,
Junko T. Tsukiyama, Trustee of The Mirai Trust, Mirai Trust, Arnold L. Graff,
Wright, Finlay, & Zak, LLP, and DOES 1 through 100. The complaint alleges
causes of action for: (1) Breach of Implied Covenant of Quiet Use and
Enjoyment; (2) Negligent Violation of Statutory Duty; (3) Intentional Violation
of Statutory Duty; (4) Retaliation/Constructive Eviction; (5) Negligent Breach
of the Implied Warranty of Habitability; (6) Intentional Breach of Implied
Warranty of Habitability;(7) Nuisance (Negligent); (8) Nuisance (Intentional);
(9) Negligence; and (10) Intentional Infliction of Emotional Distress.
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B. Procedural¿¿
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On
January 3, 2023, Defendants, Kai T. Tsukiyama and Junko T. Tsukiyama, Trustees
of the Mirai Trust filed a Demurrer. On February 1, 2023, Plaintiffs filed an
opposition. On February 7, 2023, Defendants filed a reply brief.
On
January 3, 2023, Defendants, Wright, Finlay & Zak, LLP and Arnold L. Graff.
On February 1, 2023, Plaintiffs filed an opposition. On February 7, 2023,
Defendant filed a reply brief.
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II. REQUEST FOR JUDICIAL
NOTICE
Defendants
filed a request for judicial notice requesting the Court to take judicial
notice of the following:
1. A Grant Deed
recorded on January 29, 2021, in the Los Angeles County Recorder’s Office
bearing instrument number 20210170712, a true and correct copy of which is
attached hereto as Exhibit “1.”
2. A Grant Deed
recorded on June 15, 2022, in the Los Angeles County Recorder’s Office bearing
instrument number 20220633433, a true and correct copy of which is attached
hereto as Exhibit “2.”
3. A First Notice
of Municipal Code Violation issued by the Gardena Police Department dated
October 4, 2022, a true and correct copy of which is attached hereto as Exhibit
“3.”
4. A 60-day Notice
to Quit dated November 2, 2022, a true and correct copy of which is attached
hereto as Exhibit “4.”
5. A letter dated
November 7, 2022, a true and correct copy of which is attached hereto as
Exhibit “5.”
Plaintiff filed an opposition arguing that Exhibit 5
should be excluded since it came from the Attorney for Plaintiffs and is not a
document that falls into the category of Evidence Code sections 451 and 452. This
Court GRANTS Defendants’ request for judicial notice of the above, except DENIED
as to Exhibit 5 which is an evidentiary exhibit for purposes of the Court’s
consideration of the anti-SLAPP motion, not a document as to which the Evidence
Code requires or permits the taking of judicial notice.
III. MOVING PARTY’S GROUNDS
Defendants
demur to Plaintiffs’ entire complaint on the grounds that they claim the
complaint is barred as a matter of law and fails to state facts sufficient to
support any alleged causes of action against Defendants.
Defendants,
Wright, Finlay
& Zak, LLP and Arnold L. Graff,
filed their Special Motion to Strike which seeks to
strike the complaint against them in its entirety, consisting of the eight (8)
causes of action. Defendants allege that: (1) the Complaint
against Attorney Defendants arises exclusively from acts in furtherance of
Attorney Defendants’ right of petition or free speech in connection with a
public issue and legal representation of the other named defendants; and (2)
Plaintiffs cannot demonstrate a probability of prevailing on the Complaint
against Attorney Defendants.
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IV. ANALYSIS¿
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A. Demurrer¿¿¿
¿
A demurrer can be used only
to challenge defects that appear on the face of the pleading under attack or
from matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint
need only allege facts sufficient to state a cause of action; each evidentiary
fact that might eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
¿¿
A pleading is uncertain if
it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A
demurrer for uncertainty may lie if the failure to label the parties and claims
renders the complaint so confusing defendant cannot tell what he or she is
supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury
v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
Breach
of Implied Covenant of Quiet Use and Enjoyment.
The elements of a claim for breach of the covenant of
quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2)
absence of language contrary to the implied covenant that tenant shall have
quiet enjoyment and possession; (3) act or omission of the landlord, or anyone
claiming under the landlord, which “substantially interfere[s] with a
tenant[’]s right to use and enjoy the premises for the purposes contemplated by
the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578,
588-591.)
Here, the first requirement is for Plaintiff to plead
that a lease agreement between Plaintiff and Defendant existed. Plaintiffs
allege that Defendants rented an unpermitted garage to Plaintiff, Cory Lee, in
2012 for $775 per month. The Garage unit did not have its own water, electric
or gas meter, therefore Defendant required Plaintiff Lee to pay an additional
$225 per month for their utilities. (Complaint,
¶ 12.) Plaintiffs also claim that Dyniesha Curtis, moved into the garage unit
in 2014 with the approval of Jennifer Ingrid Tsukiyama, defendants predecessor
in interest. Plaintiffs claim that they were current on their monthly rent of
$1,000 at all times mentioned in this complaint. (Complaint, ¶ 13.) Plaintiffs
further contend that they occupied the premises as their residence, and at all
times complied with all of the terms of the agreement they were required to
perform on their part. (Complaint, ¶ 49.)
The complaint alleges that “During the course of
each Plaintiffs tenancy at the premises, Defendants, and each of them, failed
to investigate and respond to complaints by Plaintiffs in a professional
manner.” (Complaint, ¶ 35.) Plaintiffs further allege that, “ in response to
the Plaintiffs’ request for necessary repairs and maintenance, Defendants,
served notices, and threatened to file unlawful detainer actions against
Plaintiffs. Additionally, throughout the course of their tenancy at the
premises, Defendants, and each of them, harassed, threatened, and intimidated
Plaintiffs.” (Complaint, ¶ 35.) Plaintiffs plead that as a direct and proximate
result of Defendants’ conduct aforementioned, Plaintiffs lost the substantial
use and quiet enjoyment of their dwelling place, suffering damages and losses
in an amount according to proof at trial. (Complaint, ¶ 36.)
More
specifically, Plaintiffs’ complaint includes the following allegations: over
the course of eight years Plaintiffs were and still are plagued with the
following: (a) defective plumbing that caused sewage to back up into the garage
unit from the toilet and sink and did not allow them to wash their dishes,
cook, clean, nor obtain drinking water; (b) termites; (c) rates; (d) dog urine
and fecal matter in their entryway; (e) lack of electricity; (f) mold; and (g)
fungus. (Complaint, ¶ 15, 19.) Plaintiffs also contend that they incurred
medical expenses for the treatment of asthma that was exacerbated by vermin,
dog urine and fecal matter, mold, and fungus. (Complaint, ¶ 16.) Plaintiffs
also allege that Plaintiff Dyniesha suffered two miscarriages in 2022 due to
the mold, fungus, defective plumbing and vermin. (Complaint, ¶ 17.)
Additionally, Plaintiffs claim they suffer from anxiety and depression due to
the state of the garage. (Complaint, ¶ 18.) Plaintiffs further allege that on
September 12, 2022, the garage unit front door fell off the hinges as a result
of termite and vermin infestation. (Complaint, ¶ 21.) Plaintiffs claim that
when they told Defendants about the issues that they were facing, the
Defendants responded that they would not fix the issues and told Plaintiffs to
move out. (Complaint, ¶ 19, 22.) Lastly, Plaintiffs claim that Defendants
harassed, texted, called, and visited the garage unit almost every day from
September 13, 2022 up to and including November 3, 2022 to ascertain when
Plaintiffs would move out of the garage unit. (Complaint, ¶ 24.)
The Demurrer
to the first cause of action is overruled.
The allegations are sufficient to state a cause of action for
interference with the covenant of quiet enjoyment as against the defendants
other than the Attorney Defendants. Discovery and anticipated future motions may
narrow the scope of evidence admissible as bearing on this and other causes of
action, but the Complaint’s non-specific allegations of the dates that every
claimed wrongful act occurred does not defeat the existence of a cause of
action on at least one of those alleged acts within the statute of limitations
period.
Negligent/Intentional
Violation of Statutory Duty
Plaintiffs’ second cause of action for Negligent
Violation of Statutory Duty claims: “The laws and regulations of the State of
California and County of Los Angeles, including, not limited to, California
Civil Code §§1941.1 (a)-(h), 1942.4, 1942.5, 3304, and 3479, California Health
and Safety Code §17920.3, Los Angeles County’s Rent Stabilization and Tenant
Protection Ordinance, Chapter 8.52, and City of Gardena Municipal Code (Chapter
14), on Defendants to maintain residential premises in a safe and habitable
condition, to provide tenants with the quiet use and enjoyment of their
residential rental dwelling.” (Complaint,
¶ 38.) Additionally, Plaintiffs claim that Defendants failed to exercise
ordinary and reasonable care in complying with the aforementioned statutory and
regulatory obligations and duties, and therefore breached the same and violated
said statutes and regulations.” (Complaint, ¶ 39.)
Additionally, Plaintiffs’ third cause of action for
Intentional Violation of Statutory Duty claims: “Defendants’ violations of
statutory duties described above at Plaintiffs Third Cause of Action were
knowing, intentional, and willful, and furthermore was malicious and oppressive;
therefore, Plaintiffs are entitled to punitive damages in an amount according
to proof at trial, and which sum shall be adequate to punish and make an
example of Defendants, and each of them. Plaintiffs were damaged by Defendants’
violation of statutory duties in an amount to be proven at trial. In addition,
Plaintiffs are entitled to attorneys’ fees and costs pursuant to California
Civil Code §§1942.4, 1942.5 and 3304.” (Complaint, ¶ 41.)
The demurrer asserts that Plaintiffs’ second and third
causes of action for negligent and intentional violation of statutory duty
relate to “detriment” caused by the breach of a covenant of quiet enjoyment and
nuisance. As such, Defendants assert
that Plaintiffs claims are duplicative. Defendants also note that the remainder
of Plaintiffs’ claims cite to the “Los Angeles County’s Rent Stabilization and
Tenant Protective Ordinance, Chapter 8.52, and the City of Gardena Municipal
Code” and contend “Plaintiff (sic) were damaged by Defendants’ violation [of]
statutory duties[.]” (Complaint, ¶¶38-39, 41) Plaintiffs claim “Defendants, and
each of them,” failed “to maintain residential premises in a safe and habitable
condition” and specifically claim in earlier allegations a violation of Gardena
Municipal Code §14.08.020 and Chapter 8.52 of the Los Angeles County’s Rent
Stabilization Ordinance (“LARSO”) due to an alleged failure to offer them
“relocation” fees in the amount of $17,324.00. (Complaint, ¶¶30-32, 38-39, 41.)
However, Defendants assert that no violations occurred as no such relocation
fees under Gardena Municipal Code or LARSO were required in this cause because
the Notice to Quit, and the ultimate need to evict Plaintiffs’ month-to-month
occupancy, is required under the Demolition Notice issued by the City of
Gardena. (RJN, Exhibit 3; Complaint, ¶ 29 (“the Gardena Police Department
served a Notice of Municipal Code Violation … for the demolition of the [Garage
Unit] by October 31, 2022.”).)
As noted by Defendants, the Gardena
Municipal Code section 14.08.040, entitled “Exceptions” to the general
requirement to “to provide relocation assistance to tenants facing eviction due
to demolition or removal of their building” as stated in section 14.08.010,
“[t]he following are exceptions to the provisions of this chapter: … (E)
Demolition required by the city or other public agency for health or safety
reasons.” (emphasis added). Moreover, section 8.52 of the LARSO, also cited by
Plaintiffs, equally does not apply as this property (along with its Garage
Unit) is not subject to the LARSO. Per section 8.52.030(G), the LARSO only
applies to a “Covered Rental Unit” which “means a Dwelling Unit that is
rent-stabilized, located in the unincorporated County”. Los Angeles County Code
§8.52.030(G). In this case, the property is in Gardena, which is an
incorporated county since 1930, and not subject to LARSO as it has its own
“rent stabilization” ordinances. Under Gardena Municipal Code section
14.08.040, no such relocation fees are required if the as-yet unfiled eviction
case were shown to be predicated on the City’s November, 2022 demolition notice.
Additionally, Defendants notes that Plaintiffs also
cite to alleged violations of the Civil Code, such as section 1942.5, by virtue
of the Notice to Quit. (Complaint, ¶¶ 38-39, 41.) However, as noted by
Defendants these are anti-retaliation statutes which apply only if such a
Notice to Quit was served to retaliate against a tenant for exercising rights
under the law or filing a complaint to an agency regarding habitability issues.
Defendants argue that because the Notice to Quit (and in the citation included
with it) was for compliance with a government order to comply, section 1942.5
does not apply. (RJN, Exhibits 3-4.)
Neither Plaintiffs nor Defendants
make reference to the possibility that the evidence to be proven at trial may
reflect a “mixed motive” to evict or for claimed retaliatory eviction efforts
by the non-attorney defendants. (See
Civ. Code, § 1942.5(g); Drouet v. Superior Court (2003) 31 Cal.4th
583, 595-596 [landlord asserting lawful cause under Section 1942.5(f) must also
establish good faith under 1942.5(g), but need not establish total absence of
retaliatory motive].) The briefs contain
considerable factual “motive” assertions that are outside the four corners of
the Complaint. The Court cannot say at
the pleading stage what the non-attorney defendants’ motive or motives may have
been for the alleged text message (Complaint ¶23) and the subsequent 60-day
notice. Based on the foregoing, the
Court thus overrules the demurrer on the second and third causes of action.
Retaliation/Constructive
Eviction
“A constructive
eviction occurs when the acts or omissions to act of a landlord, or any
disturbance or interference with the tenant’s possession by the landlord,
renders the premises, or a substantial portion thereof, unfit for the purposes
for which they were leased, or which has the effect of depriving the tenant for
a substantial period of time of the beneficial, enjoyment or use of the
premises.” (Groh v. Kover’s Bull Pen, Inc. (1963) 221 Cal.App.2d 611,
614.) “Any interference by the landlord by which the tenant is deprived of the
beneficial enjoyment of the premises amounts to a constructive eviction if the
tenant so elects and surrenders possession.” (Johnson v. Snyder (1950)
99 Cal.App.2d 86, 88.)
Here, Plaintiffs allege that “Defendants, and
each of them, willfully, knowingly, and purposefully retaliated against
Plaintiffs for their assertions of Plaintiffs’ rights in regard to the
aforementioned acts and omissions of Defendants, and each
of them, by taking certain actions, or failing to act, in such a way intended
to actually and substantially harass, evict and/or constructively evict
Plaintiffs from their premises.” (Complaint,
¶ 43.)
Further, the
Court notes that Plaintiffs’ complaint includes the following allegations: over
the course of eight years Plaintiffs were and still are plagued with the
following: (a) defective plumbing that caused sewage to back up into the garage
unit from the toilet and sink and did not allow them to wash their dishes,
cook, clean, nor obtain drinking water; (b) termites; (c) rates; (d) dog urine
and fecal matter in their entryway; (e) lack of electricity; (f) mold; and (g)
fungus. (Complaint, ¶ 15, 19.) Plaintiffs also contend that they incurred
medical expenses for the treatment of asthma that was exacerbated by vermin,
dog urine and fecal matter, mold, and fungus. (Complaint, ¶ 16.) Plaintiffs
also allege that Plaintiff Dyniesha suffered two miscarriages in 2022 due to
the mold, fungus, defective plumbing and vermin. (Complaint, ¶ 17.)
Additionally, Plaintiffs claim they suffer from anxiety and depression due to
the state of the garage. (Complaint, ¶ 18.) Plaintiffs further allege that on
September 12, 2022, the garage unit front door fell off the hinges as a result
of termite and vermin infestation. (Complaint, ¶ 21.) Plaintiffs claim that
when they told Defendants about the issues that they were facing, the
Defendants responded that they would not fix the issues and told Plaintiffs to
move out. (Complaint, ¶ 19, 22.) Lastly, Plaintiffs claim that Defendants
harassed, texted, called, and visited the garage unit almost every day from
September 13, 2022 up to and including November 3, 2022 to ascertain when
Plaintiffs would move out of the garage unit. (Complaint, ¶ 24.)
The
demurrer argues that there was no retaliatory eviction here because the Notice
to Quit clearly falls within Civil Code section 1942.5, subsections (f) and
(g), and section 1946.2(b)(2)(C). Moreover, Defendants assert that Plaintiffs’
claim is meritless as they have not even been evicted nor have Plaintiffs moved
out from the Garage Unit yet. The Court’s concern with this cause of action is the
uncertainty as to the timing of the allegations of landlord misconduct versus
the date or dates Plaintiffs reported a habitability or other concern either to
Defendants, Defendant’s decedent, or a government agency such as the City of
Gardena Code Enforcement office. Element
3 of CACI 4321 requires a date or dates of the report to the landlord or
government agency from which to measure the 180-day period, and that is mostly
lacking in the Complaint. Further,
paragraph 23 alleges a text message of what appears to be a Fall, 2022 demand
or notice to vacate, but its date and content are not alleged in any
detail. Accordingly,
the Court sustains the demurrer
to the retaliatory eviction cause of action with 20 days lave to amend.
Negligent/Intentional
Breach of the Implied Warranty of Habitability
Defendants demur to the Fifth and Sixth causes of action for negligent
and intentional breach of implied warranty of habitability. To establish a
breach of the implied warranty of habitability, Plaintiffs must establish (1)
“the existence of a material defective condition affecting the premises’
habitability,” (2) “notice to the landlord of the condition within a reasonable
time after the tenant’s discovery of the condition,” (3) “the landlord was
given a reasonable time to correct the deficiency, and” (4) “resulting
damages.” (Erlach v. Sierra Asset
Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)
Plaintiffs claim that “Defendants, and each of them, breached the implied
warranty of habitability by failing to provide, maintain, and/or repair the
premises in a proper fashion” and “did not respond
or responded with inadequate efforts following requests by Plaintiffs that
Defendants repair the substandard conditions.” (Complaint, ¶ 51.) Plaintiffs
further claims that over the course of eight years Plaintiffs were and still
are plagued with the following: (a) defective plumbing that caused sewage to
back up into the garage unit from the toilet and sink and did not allow them to
wash their dishes, cook, clean, nor obtain drinking water; (b) termites; (c)
rates; (d) dog urine and fecal matter in their entryway; (e) lack of
electricity; (f) mold; and (g) fungus. (Complaint, ¶ 15, 19.) Plaintiffs claim
that when they told Defendants about the issues that they were facing, the
Defendants responded that they would not fix the issues and told Plaintiffs to
move out. (Complaint, ¶ 19, 22.) Lastly, Plaintiffs claim that Defendants
harassed, texted, called, and visited the garage unit almost every day from
September 13, 2022 up to and including November 3, 2022 to ascertain when
Plaintiffs would move out of the garage unit. (Complaint, ¶ 24.) Additionally,
Plaintiffs have alleged multiple damages.
As with other causes of action, the allegations of
the timing of the allegations of landlord misconduct versus the date or dates Plaintiffs
gave notice either to Defendants or Defendant’s decedent. The Complaint only specifically mentions
notice of two items in 2022, the front door and the clogged sink. It is uncertain
whether Plaintiffs gave notice of the non-attorney Defendants or to the decedent
of any other items. Accordingly, the Court sustains the demurrer to the habitability causes of action
with 20 days lave to amend.
Nuisance
(Negligent)/ (Intentional)
To establish an action for private nuisance,
(1) “the plaintiff must prove an interference with his use and enjoyment of his
property”; (2) “the invasion of the plaintiff’s interest in the use and
enjoyment of the land must be substantial, that is, that it causes the
plaintiff to suffer substantial actual damage”; (3) “the interference with the
protected interest must not only be substantial, but it must also be unreasonable,
i.e., it must be of such a nature, duration, or amount as to constitute
unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners,
LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and
quotation marks omitted.) The detailed allegations as to the nature of
the claimed interferences with Plaintiff’s possessory interest in the Garage
Unit are sufficient for pleading purposes, so the Court overrules the demurrer
to these two causes of action.
Negligence
In order to state a claim for negligence,
Plaintiff must allege the elements of (1) “the existence of a legal duty of
care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an
injury.” (McIntyre v. Colonies-Pacific,
LLC (2014) 228 Cal.App.4th 664, 671.)
Here, Plaintiffs’ complaint alleges that
Defendants “failed to properly maintain the property and failed to correct the
aforementioned defective conditions. Additionally, throughout the course of
their tenancy at the premises, Defendants, and each of them, harassed,
threatened, and intimidated Plaintiffs.” (Complaint, ¶ 69.) Plaintiffs further note that as a direct and proximate
result of said unlawful conduct of Defendants, and each of them, Plaintiffs
have suffered extreme emotional distress as more particularly set forth above. (Complaint,
¶ 71.)
The only
reference to “breach” in Plaintiffs’ Complaint involves the breach of Implied
Warranty of Habitability and Breach of Implied Covenant of Quiet use and
enjoyment, although the allegation of failure to maintain or correct deficiencies
vaguely addresses the breach element. With
those other causes of action, the negligence cause of action is arguably duplicative
and provides no other or different measure of damages. Based
on the foregoing, this Court sustains demurrer on this cause of action, with
leave to amend if Plaintiffs elect to layer duplicative causes of action on
other overlapping claims
Intentional
Infliction of Emotional Distress.
“The elements of a prima facie case for the
tort of intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and
ellipses omitted.)
Here, Plaintiffs’ complaint asserts that “as
the result of Defendants failure to correct said defective conditions, dumping
a 60 day notice to vacate, and conduct toward Plaintiffs, Plaintiffs have
suffered and continue to suffer extreme mental distress to their general
damages and in an amount to be established by proof at trail. (Complaint, ¶ 73.) Plaintiffs further allege
Defendants’ failure to correct the defective conditions described above and
their harassing, oppressive conduct toward Plaintiffs, was knowing,
intentional, and willful, and was done with full knowledge or substantial
certainty of the extreme mental distress which said failures would cause the
Plaintiffs. (Complaint, ¶ 74.) Plaintiffs contend that as a direct and
proximate result of Defendants’ acts as herein described, Plaintiff suffered
severe emotional distress and bodily injuries. (Complaint, ¶ 75.) Lastly,
Plaintiffs claim that said conduct of Defendants was malicious and oppressive,
and therefore Plaintiffs are entitled to punitive damages. (Complaint, ¶ 76.)
The only specific allegations of the non-attorney
Defendants’ notice or knowledge of specific problems at the Garage Unit were the
front door and the clogged sink in 2022.
If Plaintiffs elect to amend the emotional distress cause of action to
provide more detail as to the factual basis for the extreme and outrageous element
of such a claim, more specificity and detail is required as to what was
intentionally done and when. Based on
the foregoing, this Court finds the demurrer is SUSTAINED with leave to amend this
cause of action.
B. Anti-SLAPP
Motion
Attorney Defendants filed a special motion to strike
the Complaint against them in its entirety, consisting of the eight(8) causes
of action under CCP § 425.16, also known as the anti-SLAPP (“strategic lawsuit
against public participation”) statute. “The anti-SLAPP procedures are designed
to shield a defendant’s constitutionally protected conduct from the undue
burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
393.) “The anti-SLAPP statute does not insulate defendants from any liability
for claims arising from the protected rights of petition or speech. It only
provides a procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” (Id. at 384.)
“Resolution of an anti-SLAPP motion involves two
steps. First, the defendant must establish that the challenged claim arises
from activity protected by section 425.16. If the defendant makes the required
showing, the burden shifts to the plaintiff to demonstrate the merit of the
claim by establishing a probability of success.” (Baral, 1 Cal.5th at
384 (citation omitted).) The California Supreme Court has “described this
second step as a ‘summary-judgment-like procedure.’ The court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment. It accepts
the plaintiff’s evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims
with the requisite minimal merit may proceed.’” (Id. at 384-385
(citations omitted).) “In deciding whether the ‘arising from’ requirement is
met, a court considers ‘the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.’ ” (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)
Conduct
in Furtherance of Right of Petition or Free Speech
Code of Civil Procedure § 425.16(e) states: “As used
in this section, ‘act in furtherance of a person's right of petition or free
speech under the United States or California Constitution in connection with a
public issue’ includes: . . . (1) any written or oral statement or writing made
before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing made
in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by
law, (3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest, or (4)
any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public
issue or an issue of public interest.” “In the anti-SLAPP context, the critical
point is whether the plaintiff's cause of action itself was based on an act in
furtherance of the defendant's right of petition or free speech.” (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The anti-SLAPP's statute
focuses, not on the form of cross-complainant’s cause of action but, rather,
cross-defendants' underlying activity that gives rise to the asserted liability
and whether that activity constitutes protected speech or petitioning. (See Navellier
v. Sletten (2002) 29 Cal.4th 82, 92.)
In Baral v. Schnitt (2016) 1 Cal.5th 376, the
court held that an anti-SLAPP motion may be utilized to strike specific
allegations of protected activity without eliminating the entire cause of
action or primary right. “By referring to a “cause of action against a person
arising from any act of that person in furtherance of” the protected rights of
petition and speech, the Legislature indicated that particular alleged acts
giving rise to a claim for relief may be the object of an anti-SLAPP motion. (§
425.16(b)(1), italics added.) Thus, in cases involving allegations of both
protected and unprotected activity, the plaintiff is required to establish a
probability of prevailing on any claim for relief based on allegations of
protected activity.” (Id. at 395.)
Plaintiffs admit in their opposition, that the
gravamen of their causes of action against moving Attorney Defendants is for their “fraudulent” conduct of posting
notices on the backdoor of the house that were actually meant for Plaintiffs.
Plaintiffs allege that Defendant, Graff was and continues to be the agent for
Defendant, Kai and according to California Civil Code section 1942.5 was
prohibited from serving Plaintiffs’ with a notice to quit within six months
after a complaint was made to the landlord or a government agency about the
status of the real property. Plaintiff further alleges that Plaintiffs complaints
are based on racially discriminatory conduct by all defendants and the actions
they engaged in to oust Plaintiffs from the illegally converted garage.
Plaintiffs perplexingly argue their lawsuit against
Attorney Defendants does not arise from a protected activity because any prior
lease agreement they initially had with defendant Kai Tsukiyama’s mother was
“illegal as a matter of law” and “the attorney(s) are attempting to enforce an
illegal contract on behalf of their client which is illegal.” (Opposition, pg.
2-3.) However, as noted by Attorney Defendants, the drafting or attempted
service of a notice to quit is not an attempt to enforce a lease but rather is
an effort to use the right to petition the government to terminate the claimed
illegal tenancy. Issuance of a 60-day
notice to quit is a necessary step before filing an unlawful detainer action to
remove Plaintiffs from the Garage Unit, which is the protected activity at
issue here.
Here, Defendants argue that each of the causes of
action fall under the protection of Code of Civil Procedure section
425.16(e)(1) and (e)(2) because the complaint is based on Attorney Defendants’
purported violation of Plaintiffs’ rights by serving a 60-day notice to quit.
The Court agrees.
The service of a notice to quit
where it is a legal prerequisite for bringing an unlawful detainer action is
protected activity under CCP section 425.16. (Wallace v. McCubbin
(2011) 196 Cal.App.4th 1169, 1183, disapproved on other grounds; Feldman v.
1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480.)
Here, Plaintiffs even appear to
concede that all eight (8) causes of action brought by Plaintiffs against
Attorney Defendants are based on their serving of the 60-day notice to quit.
Although, Plaintiffs asserts various arguments as to why it believes Attorney
Defendants improperly served the 60-day notice, none of these arguments negate
the fact that Attorney Defendants engaged in protected activity. Attorney Defendants
have thus shown that all eight (8) causes of action in reference to the
Attorney Defendants arise from protected activity under Code of Civil Procedure
section 425.16. The first prong of the anti-SLAPP two-prong analysis is thus
established by the moving parties.
Reasonable
Probability of Prevailing
Once a defendant has met its initial burden, “[i]t is then up to the
plaintiff to rebut the presumption by showing a reasonable probability of
success on the merits.” (Equilon, supra, 29 Cal.4th at p.
61.) In determining whether the plaintiff has carried this burden, the
trial court considers “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (Code
Civ. Proc., § 425.16, subd. (b)(2); see Soukup, supra, 39
Cal.4th at 269, fn. 3.)
The test for showing a probability of success under section
425.16 is similar to the standard applied to evidentiary showings in summary
judgment motions, and the plaintiff must make a prima facie showing by competent admissible evidence within the
personal knowledge of the declarant. (Ludwig v. Superior Court
(1995) 37 Cal.App.4th at 15-16.) “To show a likelihood of success, ‘[t]he
plaintiff's showing of facts must consist of evidence that would be admissible
at trial.’ [Citation.] The plaintiff may not rely on the
allegations in the complaint or assertions in a declaration based on
information and belief.” (Wong v. Jing (2010) 189 Cal.App.4th
1354, 1368.) The court bears the responsibility to accept as true the
evidence favorable to the plaintiff, and the plaintiff need only establish that
his or her claim has “minimal merit” to avoid being stricken as a SLAPP.
(Soukup, supra, 39 Cal.4th at p. 291.)
Litigation Privilege
Attorney Defendants argue that Plaintiffs cannot show a
probability of success because their claims are barred by the litigation
privilege of Civil Code section 47(b) which provides: “A
privileged publication or broadcast is one made: … (b) In any … (2) judicial
proceeding … … or (4) in the initiation or course of any proceeding authorized
by law[.]” Attorney Defendants assert that the litigation privilege is
“relevant to the second step in the anti-SLAPP analysis in that it may present
a substantive defense a plaintiff must overcome to demonstrate a probability of
prevailing.” (Contreras, supra, at p. 415 (citing Flatley v. Mauro
(2006) 39 Cal.4th 299, 323). Plaintiffs cannot establish a probability of
prevailing because the litigation privilege precludes their claims against Attorney
Defendants. (Id.; see Bergstein v. Strook & Strook & Lavan LLP
(2015) 236 Cal.App.4th 793, 814).)
Causes of Action
Based on the facts alleged in Plaintiffs’ complaint,
and the above demurrer, this Court finds that Plaintiff is unlikely to sustain
any claim against Attorney Defendants. The Attorney Defendants were not in
possession, were not owners, and did not exercise any control over the subject
property. Because the 60-day notice to quit was given to Plaintiffs pursuant to
a step in litigation for an unlawful detainer claim, the Anti-SLAPP statutes
protects the Attorney Defendants.
As such, the Anti-SLAPP motion is GRANTED.
IV. CONCLUSION¿¿
¿¿¿
For the foregoing reasons,
Defendants Demurrer is Sustained in part and overruled in part. Additionally,
the Anti-SLAPP motion is GRANTED.
¿¿¿
Moving party is ordered to give
notice.¿¿¿¿