Judge Ronald F. Frank, Case Number: 24TRCV02709, Date: 2024-12-05 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV02709, Date: 2024-12-05 Tentative Ruling

Case Number: 24TRCV02709 Hearing Date: December 5, 2024 Dept: 8

Tentative Ruling

HEARING DATE: December 5, 2024

CASE NUMBER: 24TRCV02709

CASE NAME: Anthony Claverie v. George N. Burkhardt, Jr., et al.

MOVING PARTY: Defendant, George N. Burkhardt, Jr., Successor Trustee Burkhardt Living Trust

RESPONDING PARTY: Plaintiff, Anthony Claverie (No Opposition)

TRIAL DATE: Not Set.

MOTION:

(1) Demurrer

(2) Motion to Strike

Tentative Rulings: (1) SUSTAINED with twenty (20) days leave to amend.

(2) Motion to Strike is MOOTED in part and GRANTED in part.

I. BACKGROUND

A. Factual

On August 15, 2024, Plaintiff, Anthony Claverie (“Plaintiff”), filed a complaint against Defendants, George N. Burkhardt, Jr., Successor Trustee Burkhardt Living Trust, and DOES 1 through 10. The complaint alleges a cause of action for: (1) Breach of Contract; (2) Retaliation; (3) Nuisance; (4) Declaratory Relief; (5) Intentional Infliction of Emotional Distress; (6) Violation of Tenant Protection Act; (7) Slander of Credit; (8) Unjust Enrichment.

Now, Defendant, George N. Burkhardt, Jr., Successor Trustee Burkhardt Living Trust (“Defendant”) files a Demurrer and Motion to Strike Plaintiff’s complaint.

B. Procedural

On October 25, 2024, Defendant filed a Demurrer and Motion to Strike Plaintiff’s complaint. To date, no opposition brief has been filed.

II. ANALYSIS

A. Demurrer

i. 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.)¿¿¿

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.)

ii. Discussion

Defendants demur to Plaintiff’s complaint on the grounds that it argues: (1) Plaintiff’s first cause of action for Breach of Contract fails to plead facts sufficient to constitute a cognizable cause of action, fails to provide precise contract terms, legal effect of contract, or attach the contract to establish the essential elements necessary for such a claim, fails on standing, and is vague, ambiguous, and fails to plead facts with certainty and specificity; (2) Plaintiff’s second cause of action for Retaliation fails to state sufficient facts to constitute a cognizable claim and is vague, ambiguous, and fails to plead facts with certainty and specificity; (3) Plaintiff’s third cause of action for Nuisance fails to state sufficient facts to constitute a cognizable claim, is time barred, and is vague, ambiguous, and fails to plead facts with certainty and specificity; (4) Plaintiff’s fifth cause of action for Intentional Infliction of Emotional Distress [erroneously referred to as fourth cause of action] fails to state sufficient facts to constitute a cognizable claim and is vague, ambiguous, and fails to plead facts with certainty and specificity; (5) Plaintiff’s sixth cause of action for Violation of Tenant Protection Act [erroneously referred to as fifth cause of action] fails as it is baseless and wrongly and inaccurately asserts the subject property is governed by the Tenant Protection Act under California Civil Code § 1946.2 and California Civil Code § 1947.12, when in fact, the property is expressly exempt under California Civil Code § 1946.2(e)(8)(A); (6) Plaintiff’s seventh cause of action for Slander of Credit [erroneously referred to as sixth cause of action] fails to state sufficient facts to constitute a cognizable claim; and (7) Plaintiff’s eighth cause of action for Unjust Enrichment [erroneously referred to as seventh cause of action] fails as it is legally untenable.

1. Meet and Confer Requirement

The declaration of Eva B. Kobi, Esq. (“Kobi Decl.”), is offered in support of counsel’s compliance with Code of Civil Procedure section 430.41. Kobi declares that she attempted to telephonically meet and confer with Plaintiff on September 3, 2024 and again on September 16, 2024, at the phone number on Plaintiff’s papers, to no avail. (Kobi Decl., ¶ 4.) Since Defendant intended to file a demurrer, and Kobi was unable to meet and confer with Plaintiff, she filed a “Declaration of Demurring or Moving Party in Support of Automative Extension on September 16, 2024. (Kobi Decl., ¶ 5.) Kobi and Plaintiff were, thereafter, able to communicate via email. (Kobi Decl., ¶ 6.) As a result, Plaintiff requested Kobi provide the meet and confer via email as to the Demurrer. (Kobi Decl., ¶ 7.) On October 16, 2024, Kobi provided a lengthy meet and confer correspondence to Plaintiff. (Kobi Decl., ¶ 8, Exhibit A.)

The court finds Defendant has sufficiently met and conferred prior to bringing the demurrer.

2. Breach of Contract

First, Defendant argues Plaintiff’s first cause of action for Breach of Contract fails on the grounds that it: (1) fails to plead facts sufficient to constitute a cognizable cause of action; (2) fails to provide precise contract terms, legal effect of contract, or attach the contract to establish the essential elements necessary for such a claim; (3) fails on standing; and (4) is subject to special demurrer as it is vague, ambiguous, and fails to plead facts with certainty and specificity. 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 (“Harris”).) 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.)

Plaintiff’s complaint alleges that he entered into a written contract between himself and Defendant’s predecessor on February 1, 2003 which allowed him to lease the real property at 2901 W 80th Street, Inglewood, CA 90305. (Complaint, Attachment 1, p. 1.) The complaint states Plaintiff agreed to pay $900 per month on a monthly basis and included the implied warranty of habitability, the implied covenants of good faith and fair dealing, and of quiet enjoyment. (Complaint, Attachment 1, p. 1.) Per Plaintiff’s complaint, the cause of action arose within the past four years, commencing on or about April 2023, when Defendant began to breach the contract when engaging in the following conduct: Attempting illegal eviction, breaching the implied warranty of habitability, refusing rent payments by Plaintiff to create grounds for eviction, and retaliating against Plaintiff for his complaints about trying to force him out by constructive eviction. (Complaint, Attachment 1, p. 1.)

The Court sustains the demurrer on numerous grounds. First, pursuant to the required elements that must be contained in claim for breach of contract, Plaintiff fails to plead facts with any particularity whatsoever. Instead, Plaintiff’s allegations merely recites CACI jury instructions for finding a cause of action for Breach of Contract. For example, Plaintiff states he

“performed or was excused from performing under Civil Code 1511 all conditions precedent to Defendant’s performance.” (Complaint, Attachment 1, p. 1.) How did Plaintiff perform? And/or why was Plaintiff excused from performing? The complaint does not specify the answers to this question. Plaintiff is required to plead a much more specific breach of contract cause of action in order to maintain it in its pleading.

Second, the complaint states that the contract between the Parties is written and that a copy is attached. However, the Complaint filed with the Court does not attach said written contract. Moreover, the complaint also fails to set out verbatim, in the body of the complaint, the terms of the contract nor does it plead the legal effect of the contract. As noted above, 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, supra, 74 Cal.App.4th at 307.)

Third, as noted by Defendant, Plaintiff’s complaint, as written, presents a standing issue. The alleged breached written contract in this case is identified in Plaintiff’s complaint as being a contract between Plaintiff and Defendant’s predecessor. The court understands that a contract may be amended or assigned in right to Defendant in this case. However, the complaint does not contain any such allegations. Instead, Plaintiff failed to check either box that “[t]he agreement was later amended” to increase rent and/or provide new terms. Thus, as written, Plaintiff’s breach of contract cause of action against Defendant cannot be maintained because there is no allegation of privity between the parties.

Fourth, Defendant also demurs to the complaint on the grounds he asserts Plaintiff’s breach of contract cause of action does not notify Defendant of the nature of breaches he is being accused of, and that Plaintiff asserts “foreseeable damages from such breaches in the amount of $100,000” without pleading what sort of damages were suffered by Plaintiff, if any. The Court also agrees that, as written, the pleading fails to state how Defendant breached the contract. While the complaint does allege that the contract was breached by Defendant: “Attempting illegal eviction, breaching the implied warranty of habitability, refusing rent payments by Plaintiff to create grounds for eviction, and retaliating against Plaintiff for his complaints about trying to force him out by constructive eviction” (Complaint, Attachment 1, p. 1), the complaint fails to allege how Defendant breached these alleged contractual duties.

Lastly, Defendant demurs to this cause of action as to Plaintiff’s claim for punitive damages and asks this Court to strike the demand for such on Page 3 of Page 10. Pursuant to Civil Code section 3294, punitive damages cannot be recovered for breach of a contractual obligation. However, as this Court will be addressing below, because its holding is to sustain demurrer as to this cause of action, the court notes that any claim for punitive damages on the breach of contract cause of action on motion to strike will be mooted.

Based on the above analysis, the demurrer to Plaintiff’s Breach of Contract cause of action is SUSTAINED with twenty (20) days leave to amend.

3. Retaliation

Defendant demurs to Plaintiff’s second cause of action for Retaliation on the grounds that he argues it fails to plead facts sufficient to constitute a cognizable cause of action. Pursuant to

California Civil Code section 1942.5, “[i]f the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, 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…” (Civ. Code, § 1942.5, subd. (a).)

Plaintiff’s complaint states he exercised his rights to complain about uninhabitable conditions and reported violations to government authorities. (Complaint, Attachment 1, p. 1.) Plaintiff alleges that in retaliation for the exercise of rights, Defendant began an escalating pattern of retaliation, harassing, threatening, withholding services. (Complaint, Attachment 1, p. 1.) The complaint states that Defendant committed those acts with the intent to retaliate against Plaintiff and with malicious intent to punish Plaintiff for exercising those rights and with oppressive intent to discourage further exercise of those rights. (Complaint, Attachment 1, p. 1.)

Here, the Court sustains demurrer to the second cause of action for Retaliation on the grounds that again, Plaintiff’s allegations are mere recitations of CACI instructions. There is no indication what the habitability issue(s) were, what government agency Plaintiff reported those issues to, when Plaintiff reported the habitability issues to that government agency, what actions Defendant took to retaliate against Plaintiff after that complaint to the government agency was made, etc. Without more, Plaintiff is unable to maintain this cause of action against Defendant. The demurrer as to the Retaliation cause of action is SUSTAINED with twenty (20) days leave to amend.

4. Nuisance

Defendant demurs to Plaintiff’s third cause of action for Nuisance on the grounds: (1) Plaintiff fails to state sufficient facts to constitute a cognizable claim; (2) the cause of action is time barred; and (3) the cause of action is vague, ambiguous, and fails to plead facts with certainty and specificity. 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.)

First, the Court emphasizes that pursuant to Code of Civil Procedure section 338, subdivision (b), the statute of limitations on a cause of action for Private Nuisance is three (3) years. Plaintiff’s complaint states that the cause of action arose within the past four (4) years. (Complaint, Attachment 1, p. 1.) However, Plaintiff also makes reference to breaches arising in April 2023. This alone renders the complaint uncertain and ambiguous as it creates a potential statute of limitations issue.

Next, Plaintiff’s complaint alleges that Defendant has caused or permitted to persist a private nuisance, in that it is hazardous to health, offensive to the senses or blocks free movement, causing an unreasonable, substantial, and actual interference in Plaintiff’s use and

enjoyment of the premises. Plaintiff continues that he has notified Defendant of the nuisance, but that Defendant still neglected and refused to abate the nuisance. (Complaint, Attachment 1, p. 2.) Not only are these allegations entirely ambiguous as this Court still does not know what habitability issues persisted, how Defendant engaged in a private nuisance, etc., but Plaintiff’s complaint also fails to allege the required elements of a private nuisance with any specificity. There are no allegations of what the identified nuisance is/was, its duration, etc.

The demurrer as to the Private Nuisance cause of action is SUSTAINED with twenty (20) days leave to amend.

5. Intentional Infliction of Emotional Distress

Defendant demurs to Plaintiff’s fifth cause of action for Intentional Infliction of Emotional Distress (“IIED”) on the grounds that: (1) Plaintiff fails to state sufficient facts to constitute a cognizable claim; and (2) the cause of action is vague, ambiguous, and fails to plead facts with certainty and specificity. “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.)

Plaintiff’s allegations mere recitations of the required elements and do not sufficiently allege a cause of action for IIED against Defendants. Plaintiff states Defendant engaged in an escalating pattern of IIED commencing on 4/23. (Complaint, Attachment 1, p. 6.) Plaintiff alleges these acts were extreme and outrageous conduct by Defendant, as to exceed all bounds of that usually tolerated in a civilized community. (Complaint, Attachment 1, p. 6.) Plaintiff contends Defendant’s misconduct was particularly outrageous in that Defendant abused the landlord’s power to damage Plaintiff’s interest, knowing that Plaintiff was susceptible to injury through mental distress, and Defendant acted intentionally or unreasonably with the recognition that there acts were likely to result in illness through mental distress. (Complaint, Attachment 1, p. 6.) Plaintiff further asserts that Defendant’s misconduct was directed at Plaintiff, of which Plaintiff was aware, and done with the intention of causing, or reckless disregard of the probability of causing emotional distress. (Complaint, Attachment 1, p. 6.) Moreover, Plaintiff claims Defendant’s conduct actually and proximately did cause Plaintiff to suffer severe or extreme emotional distress. (Complaint, Attachment 1, p. 6.)

Again, merely alleging the required elements, with no specificity as to the case at bar is not enough to maintain a claim against Defendant. What actions did Defendant engage in? How did Defendant cause IIED as to Plaintiff? What emotional distress manifestations has Plaintiff endured since Defendant’s alleged acts of IIED? Has Plaintiff seen a psychiatrist about said manifestations? The complaint is unclear. As such, the demurrer as to the IIED cause of action is SUSTAINED with twenty (20) days leave to amend.

6. Violation of the Tenant Protection Act

Defendant demurs to Plaintiff’s sixth cause of action for Violation of the Tenant Protection Act on the grounds that it is baseless and wrongly and inaccurately asserts the subject property is governed by the Tenant Protection Act under California Civil Code § 1946.2 and California Civil Code § 1947.12, when in fact, the property is expressly exempt under California Civil Code § 1946.2(e)(8)(A).

The Court sustains demurrer as to this cause of action, but not on Defendant’s basis as it introduces facts outside of the four corners of the complaint without judicially noticing. Instead, the Court finds that the allegation is conclusory and does not attach the alleged written lease between the parties, nor has Plaintiff shown privity between the parties as the lease for which it bases its tenancy of was allegedly not between Plaintiff and the Defendant.

As such, the demurrer is SUSTAINED with twenty (20) days leave to amend.

7. Slander of Credit

Defendant demurs to Plaintiff’s cause of action for Slander of Credit on the grounds that it fails to state sufficient facts to constitute a cognizable claim. However, it appears that Defendant’s analysis section has been removed for this cause of action. Despite this, it is clear the complaint lacks any specificity regarding any of its causes of action, Slander of Credit included. Thus, because Plaintiff merely states CACI elements of this cause of action, the demurrer is SUSTAINED with twenty (20) days leave to amend.

8. Unjust Enrichment

Lastly, Defendant demurs to Plaintiff’s eighth cause of action for Unjust Enrichment as it is legally untenable. “The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769, quotation marks and citations omitted.)

Defendant is correct that this is not a stand-alone cause of action. Notably, “[u]njust enrichment is not a cause of action”; it is simply “a restitution claim.” (Hill v. Roll International Corp. (2011) 195 Cal.App.4th 1295, 1307; see also Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [“there is no cause of action in California for unjust enrichment”].)

Because Plaintiff unsuccessfully stated a cause of action for breach of contract above or the other causes of action above, and this is a quasi-contract reason to obtain restitution, the demurrer is also SUSTAINED with twenty days leave to amend as to this cause of action as well.

B. Motion to Strike

i. Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿

ii. Discussion

Defendant’s Motion to Strike seeks to strike the following portions from Plaintiff’s complaint:

1. Page 2, paragraph 9, Ln. 1-3 “As used herein the terms Plaintiff and Defendant include the plural of each, all agents, principals and co-conspirator DOES. All causes of action alleged herein occurred within the applicable statute of limitations. As to punitive damages, the culpable acts were so extreme, outrageous, despicable, and reprehensible that decent citizens should not have to tolerate it.”

2. Page 2, paragraph 10, c. attorney fees.

3. Page 2, paragraph 10, d. “punitive damages.”

4. Page 3, paragraph 2, as to Retaliation: “Plaintiff is entitled to damages of $100000 and statutory damages of $2,000 per act per day that continues, statutory attorney fees, and punitive damages based upon the malicious and oppressive intent described above.”

5. Page 5, paragraph 1, as to Declaratory Relief, in its entirety.

6. Page 9, paragraph 1, as to Violation of Tenant Protection Act, in its entirety.

7. Page 11, paragraph 2, as to Slander of Credit, in its entirety.

8. Page 12, paragraph 2, as to Unjust Enrichment, in its entirety.

Notably, the Court has sustained 7/8 causes of action. Thus, the motion to strike based on these causes of action are mooted by the sustaining of demurrer. However, the Court acknowledges that Defendant did not demur to the cause of action for Declaratory Relief. Despite this, based on the sustaining of the rest of the causes of action, there does not appear to be a case or controversy at current between the parties. As such, the motion to strike based on declaratory relief is GRANTED.

IV. CONCLUSION

Based on the foregoing, Defendant’s demurrer is SUSTAINED with twenty (20) days leave to amend. The motion to strike is MOOTED in part and GRANTED in part.

Defendant is ordered to provide notice of this court’s ruling.