Judge: Ronald F. Frank, Case: 23TRCV03545, Date: 2024-05-22 Tentative Ruling
Case Number: 23TRCV03545 Hearing Date: May 22, 2024 Dept: 8
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HEARING DATE: May 22, 2024¿¿
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CASE NUMBER: 23TRCV03545
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CASE NAME: Charles Day; Sue Day v. Melrose Place HB,
LLC, et al.
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MOVING PARTY: Defendants, Melrose Place HB, LLC and
Fortify Property Management, Inc.
RESPONDING PARTY: Plaintiffs, Charles Day and Sue Day
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TRIAL DATE: None
Set.
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MOTION:¿ (1) Demurrer¿
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Tentative Rulings: (1) SUSTAINED with 20 days leave to amend
I. BACKGROUND¿¿
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A. Factual¿¿
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On October
24, 2023, Plaintiffs, Charles Day and Sue Day (collectively, “Plaintiffs”)
filed a Complaint against Defendants, Melrose Place HB, LLC, Fortify Property
Management, Inc., and DOES 1 through 25. The Complaint alleges causes of action
for: (1) Retaliation – Violation of Civil Code section 1942.5(d); (2) Breach of
Written Lease Agreement; (3) Breach of Covenant of Good Faith and Fair Dealing;
(5) Intentional Infliction of Emotional Distress; and (6) Unfair Business
Practices – Business & Professions Code § 17200.
Now,
Defendants, Melrose Place HB, LLC, Fortify Property Management, Inc.
(collectively “Defendants”) now file a demurrer to Plaintiffs’ Complaint.
B. Procedural¿¿
On April 16, 2024, Defendants
filed this demurrer to the Complaint. On May 9, 2024, Plaintiffs filed an
opposition brief. On May 15, 2024, Defendants filed a reply brief.
II. REQUEST FOR JUDICIAL NOTICE
Along with the
Plaintiffs’ opposition brief, they filed a Request for Judicial Notice of the
following documents:
1.
The Complaint—Unlawful Detainer filed by defendant
Melrose Place HB, LLC
("Melrose") against Plaintiffs in Case No. 22IWUD02192
(Exhibit A);
2.
The Complaint – Unlawful Detainer filed by Melrose
against Plaintiffs in Case No. 22IWUD02196 (Exhibit B);
3.
The Complaint —Unlawful Detainer filed by Melrose
against Plaintiffs in Case No. 23IWUD02768 (Exhibit C);
4.
The Complaint filed by Melrose against Plaintiffs in
Case No. 23STLC06980 on or about October 31, 2023 (Exhibit D);
5.
The docket of Case No. 23STLC06980 (Exhibit E)
6.
The Complaint – Unlawful Detainer filed by Melrose
against Plaintiffs in Case No. 23IWUD02768 (Exhibit F); and
7.
The docket of Case No. 23IWUD02768. (No copy attached
by Plaintiffs due to confidential nature of unlawful detainer dockets.)
The Court
GRANTS the request for judicial notice of Exhibits A through E, and will
discuss whether judicial notice can be granted as to the docket of Case No.
23IWUD02768. Oral argument will be permitted to discuss how the confidential
nature of that filing, and whether the fact that the docket is a matter that is
assumed to be indisputably true, so that the introduction of evidence to prove
it would not be required. (Kilroy v. State of California (2004) 119
Cal.App.4th 140, 148.)
III. ANALYSIS¿
A.
Legal
Standard
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.)¿¿¿
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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.)¿¿
B.
Discussion
Retaliation – Violation of
Civil Code Section 1942.5(d)
First, Defendants argue that Plaintiff’s first cause of
action for Retaliation in violation of Civil Code Section 1942.5(d) fails
because it is uncertain how Plaintiff’s participation in the Housing in Key
rental assistance program allegedly formed a basis for a statutory claim of retaliation.
Civil Code § 1942.5 provides:
a.
If 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, 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 any of the following [specified acts]
.
. . .
d.
Notwithstanding
subdivision (a), it is unlawful for a lessor to increase rent, decrease
services, cause a lessee to quit involuntarily, bring an action to recover
possession, or threaten to do any of those acts, for the purpose of retaliating
against the lessee because the lessee has lawfully organized or participated in
a lessees’ association or an organization advocating lessees’ rights or has
lawfully and peaceably exercised any rights under the law…
(Civ. Code, § 1942.5, et
seq.)
Although Plaintiffs’ Complaint does allege that
retaliation took place due to their participation in a COVID-19 protection
program, the Complaint is uncertain as to how this was retaliation or which
specified act under the statute applies.
Plaintiffs point to the fact that they engaged in COVID-19 California
Housing Is Key program and that subsequently, upon acquiring the Premises, Defendants
filed numerous notices to pay rent or quit as well as filing lawsuits for
failure to pay rent, only to dismiss them once Plaintiffs had incurred
significant legal expenses. (Complaint, ¶ 34.) However, the Complaint inconsistently
concedes that Plaintiffs, at numerous times, did not pay the complete rent owed
or failed to abandon the premises after a 60-day notice to terminate lease due
to construction. Are Plaintiffs alleging that this is a “mixed motive” case, or
that the notices to quit regarding intended construction on the premises were a
sham, or that Defendant did not received full reimbursement from the Housing is
Key program, or something else?
As indicated here, and below, this Court finds the
allegations in Plaintiffs’ Complaint to be confusing and uncertain. The Court
will allow twenty (20) days to amend the pleading, and recommends that
Plaintiffs give more specific details as to the claimed dates of the retaliatory
acts and the preceding acts by Plaintiff that they allege Defendant retaliated
against.
Breach of Written Lease
Agreement
Next, Defendants argue that Plaintiffs are unable to
maintain their cause of action or breach or written lease agreement. To state a cause of action for breach of contract, Plaintiff must
be able to establish “(1) the existence of the contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and (4) the
resulting damages to the plaintiff.” (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of
contract claim “is based on alleged breach of a written contract, the terms
must be set out verbatim in the body of the complaint or a copy of the written
agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999)
74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead
the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v.
TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)
Here, Plaintiffs’ complaint alleges
that they “acquired possession of the premises under a written lease agreement
with the former owners of the premises.” (Complaint, ¶ 41.)
Plaintiffs further allege that they “have performed all conditions, covenants
and promises required on their part to be performed in accordance with the
terms of the lease, with the exception of those obligations which were waived
under the COVID-19 state and emergency tenant protection measures. However,
Plaintiffs [claim to have] complied with all requirements which demonstrated
their inability to pay and applied for rent relief.” (Complaint, ¶ 42.)
However, Plaintiffs assert that Defendants breached the lease by refusing to credit
Plaintiffs with rent paid through the COVID-19 California Housing Is Key
program, by serving Plaintiffs with invalid notices to pay, by attempting to
evict Plaintiffs without proper cause and by harassing and retaliating against
Plaintiffs. (Complaint, ¶ 43.)
Defendants argue that Plaintiffs’ complaint fails to
allege any facts explaining how the alleged rental assistance program payment
created issues between Plaintiffs and Defendant. Specifically, Defendants
contend that there are no facts alleged explaining how the alleged refusal of
Defendants to credit Plaintiffs with rent paid to the prior owner of the
Property through funds from the California Housing Is Key program constitutes a
breach of any written lease. The Court agrees. Plaintiffs attach “Exhibit A” to
the Complaint which supposedly is a true and correct copy of all written leases
governing Plaintiffs’ tenancy on the premises. (Complaint, ¶ 10, Exhibit A.) Further,
Exhibit B of the Complaint is allegedly a statement printed directly from
Plaintiffs’ California Housing is Key account confirming that California
Housing is Key program paid $12,700 directly toward Plaintiffs’ outstanding
rent owed on the 34 Premises directly to Plaintiffs’ former landlord, Joseph
Jeffries. (Complaint, ¶ 14.) However, none of these documents provided as
exhibits indicate that there is a clause in Plaintiffs’ 2004 or 2011 lease
agreement that indicates rent owed to a former landlord is credited. Further,
nothing indicates that the notice to pay rent or quit had anything to do with
the credited amount.
Plaintiff’s Complaint notes in Case No. 22TRCV00796, that
Defendants were seeking unpaid rent in the total amount of $26,231 on the 34
Premises (which Plaintiffs assert ignores the $12,700 paid by Housing Is Key)
and $15,504 on the 32 premises. Plaintiffs are claiming that they have paid all
of the unpaid rent, and that now, with the numerous law suits filed by
Defendants, they are actually owed money demanded by Defendants. However, the
Court is entirely confused by the numbers, the payments made, the payments made
due to court cases, etc. Further, the Complaint indicates that even after a
60-day Notice of Termination Due to Substantial Remodel of the Rental Units for
both the 32 and 34 premises, Plaintiffs nonetheless remained on the property,
despite the notice requiring Plaintiffs to move out by May 16, 2023. (Complaint,
¶ 21.) However, later in the Complaint, Plaintiffs contend that they
voluntarily agreed to surrender possession of the 32 Premises on or about July
31, 2023. (Complaint, ¶ 23.) The
uncertainty seems to exist as to how Plaintiffs are alleging that a landlord’s
ability to charge for unpaid rent is a breach of contract. The Complaint begs
the question of what time periods were involved in the different Unlawful
Detainer cases, and whether the rent sought in different cases was for rent previously
paid or previously collected. As such, the Court, at minimum, finds that this
cause of action is entirely uncertain.
Further, the opposition brief does not clarify these
points. Essentially, the opposition seems to suggest that Defendants’ breach
was due to Defendants’ alleged failure to credit rent paid to the prior owner
of the rental property. However, there is nothing to suggest that the amount
sought by Defendants in its numerous actions had anything to do with the rent
credits. Moreover, there is nothing in the lease agreements from 2004 or 2011
to instruct this Court how the current landlords, Defendants, breached
anything. Thus, the Court SUSTAINS demurrer with twenty (20) days leave to
amend.
Breach of the Covenant of
Good Faith and Fair Dealing
Next, Defendants argue that Plaintiffs cannot maintain
their cause of action for Breach of the Covenant of Good Faith and Fair
Dealing. “A breach of the implied covenant of good faith and fair dealing
involves something beyond breach of the contractual duty itself and it has been
held that bad faith implies unfair dealing rather than mistaken judgment.” (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the
allegations do not go beyond the statement of a mere contract breach and,
relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated . . .
[T]he only justification for asserting a separate cause of action for breach of
the implied covenant is to obtain a tort recovery.” (Id. at pp. 1394-1395.) To recover in tort for breach of the implied
covenant, the defendant must “have acted unreasonably or without proper cause.”
(Id. at p. 1395, citations and
italics omitted.)
In the Complaint, Plaintiffs
allege that this cause of action is based on Defendants’ alleged breach when
“retaliating against Plaintiffs for utilizing COVID-19 tenant protections, by
attempting to and continuing to attempt to illegally evict Plaintiffs, by
executing and filing false proofs of service evidencing service of Plaintiff
when they were out of town or the country, and by filing multiple unlawful
detainers based on knowingly false information.” (Complaint, ¶ 48.)
This Court notes, as it did
above, that it is uncertain, based on the pleading how retaliation for
utilizing COVID-19 protections took place. Again, Plaintiffs try and argue that
retaliation took place because Defendants intentionally refused to correct
their ledger that $12,700 was already credited toward their rent and
subsequently, unlawful detainer suits were filed. However, as noted above, this
Court is confused because it appears that Defendants did receive payment of
alleged full rent owed after they brought the judicially noticed lawsuit.
The Court is also confused as
to Plaintiffs’ bringing of claims of alleged misconduct in another case to the
current case. The Court seeks oral argument as to whether any judge in the judicially
noticed cases ever ruled on the assertion that there were invalid oofs of
service in the previous UD cases. The
court’s tentative ruling is to sustain the demurrer as this Court’s confusion
is an indication that the Company suffers from uncertainty.
Intentional Infliction of
Emotional Distress
Next, Defendants argue that Plaintiffs cannot maintain
their claim for 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 assert that “Defendants, their agents and employees, abused
their position as landlord and property manager and acted in extreme and
outrageous manner by, among other things, willfully and intentionally
retaliating against Plaintiff by serving false notices, refusing to acknowledge
payments made by Plaintiffs, falsifying proofs of service, filing five
meritless actions, all in an attempt to harass and force Plaintiffs to vacate
the premises.” (Complaint, ¶ 59.) Further, Plaintiffs suggest that as “a direct
and proximate result of the acts of Defendants, Plaintiffs were injured in
health, strength and activity, sustaining shock and injury to their nervous
system and further suffered emotional distress, mental suffering, fright,
nervousness, anxiety, worry, shock, and indignity.
The Court disagrees. The allegations as to the underlying alleged
breaches of contract, retaliation, and/or good faith claims are uncertain and
need clarification before the Court can assess whether the allegations amount
to extreme and outrageous conduct as to shock the conscious. As such, demurrer
is sustained with twenty (20) days leave to amend.
Unfair Business Practices
Lastly, Defendants argue that Plaintiffs cannot maintain
their cause of action for Violation of Business & Professions Code section
17200. To set forth a claim for a violation of Business and Professions
Code section 17200 (“UCL”), Plaintiff must establish Defendant was engaged in
an “unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue or misleading advertising” and certain specific acts. (Bus.
& Prof. Code, § 17200.) A cause of action for unfair competition “is not an
all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th
163, 173.)
Here, as the Court has indicated
above, it finds Plaintiffs’ causes of action to be pleaded in an uncertain and
confusing way. Since a 17200 cause of action generally relies on an independent
wrongful act, and since the Court is sustaining the Demurrer to those other causes
of action, the predicate act for a 17200 claim is not yet properly alleged.
IV.
CONCLUSION¿¿
For the foregoing reasons, this Court’s tentative ruling is to
SUSTAIN demurrer in its entirety as the Complaint is uncertain. Plaintiffs will
be granted twenty (20) days leave to amend.
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Defendants are ordered to give notice.