Judge Sarah J. Heidel, Case Number: 22BBCV01273, Date: 2024-03-29 Tentative Ruling

Judge: Sarah J. Heidel, Case: 22BBCV01273, Date: 2024-03-29 Tentative Ruling

Case Number: 22BBCV01273 Hearing Date: March 29, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

ZHORA BAGHDASARIAN, Plaintiff, vs. R HAZELHURST, et al., Defendants. Case No.: 22BBCV01273 Hearing Date: March 29, 2024 Time: 8:30 a.m. [TENTATIVE] ORDER RE: DEMURRER TO SECOND AMENDED COMPLAINT

MOVING PARTIES: Defendants R Hazelhurst, M.R. Investments, and Rami Grinwald

RESPONDING PARTY: Plaintiff Zhora Baghdasarian

Demurrer to Second Amended Complaint

The court considered the moving papers, opposition, and reply papers filed in connection with the demurrer.

BACKGROUND

On December 21, 2022, Plaintiff Zhora Baghdasarian (“Plaintiff”) filed a Complaint against Defendants R Hazelhurst, M.R. Investments, MRVL Investments, Rami Grinwald, and DOES 1 through 100, inclusive, alleging 14 causes of action. Plaintiff alleges that Defendants wrongfully evicted her from a property she has rented since 2008 in violation of both the lease agreement and various statutes which protect the elderly and disabled.

On April 7, 2023, Defendants R Hazelhurst, M.R. Investments, and Rami Grinwald (collectively “Defendants”) filed a demurrer to the first, fifth, twelfth, and thirteenth causes of action in the Complaint. Defendants also filed a motion to strike.

On August 2, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) breach of the warranty of habitability; (4) breach of the covenant of quiet enjoyment; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) unfair business practices in violation of California Bus. & Prof. Code § 17200 et seq.; (8) intentional influence to vacate; (9) Americans with Disabilities violations; (10) California’s Unruh Civil Rights Act violations; (11) California’s Disabled Persons Act violations; (12) L.A.M.C. violations; (13) breach of fiduciary duty; and (14) violation of Los Angeles Municipal Code section 1950.5(g).

On January 4, 2024, after hearing oral argument, the Honorable Frank M. Tavelman sitting in Department A of this Court sustained Defendants’ demurrer to first cause of action as to Defendant Rami Grinwald without leave to amend. (01/04/24 Minute Order.) The Court sustained Defendants’ demurrer to the fifth, eighth, ninth, tenth, eleventh, twelfth, and thirteenth causes of action with 20 days leave to amend. (01/04/24 Minute Order.) The Court deemed Defendants’ motion to strike as moot. (01/04/24 Minute Order.)

On January 3, 2024, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) breach of the warranty of habitability; (4) breach of the covenant of quiet enjoyment; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) unfair business practices in violation of California Bus. & Prof. Code § 17200 et seq.; (8) intentional influence to vacate; (9) Americans with Disabilities violations; (10) California’s Unruh Civil Rights Act violations; (11) California’s Disabled Persons Act violations; (12) L.A.M.C. violations; (13) breach of fiduciary duty; and (14) violation of Los Angeles Municipal Code section 1950.5(g).

On February 22, 2024, Defendants filed and served a demurrer to the fifth, eighth, ninth, tenth, eleventh, twelfth, and thirteenth causes of action in the SAC. On March 14, 2024, Plaintiff filed an opposition to the demurrer, to which Defendants replied on March 22, 2024.

Defendants argue that the fifth, eighth, ninth, tenth, and eleventh causes of action are all barred by the litigation privilege.

LEGAL STANDARD

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) In ruling on a demurrer, “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

DISCUSSION

A. Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer in person, by telephone, or by video conference before bringing the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) An insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Counsel for Defendants, Rebecca A. Kurtz (“Kurtz”), declares that she has attempted to meet and confer with Plaintiff several times on the issue giving rise to the current demurrer, but that Plaintiff’s counsel has refused to engage in the meet and confer process. (Kurtz Decl., ¶ 11.)

While that is insufficient, the Court will nevertheless consider the merits of the motion.

B. Pertinent Allegations of the SAC

The SAC alleges the following: Plaintiff entered into a written lease agreement with Defendant, with a commencement date of December 1, 2008, for a one-year tenancy for a total monthly rent amount of $1,133.00. (SAC, ¶ 15.) The written lease agreement later became a month-to-month tenancy with various rent increases. (SAC, ¶ 16.) Plaintiff’s tenancy is subject to the Tenant Protection Act of 2019 as well as the Los Angeles COVID-19 Renter Protections. (SAC, ¶¶ 17-18.) The address of the property in question is 6033 Hazelhurst Pl., #27, North Hollywood, CA 91606 (the “Subject Premises”). (SAC, ¶ 19.) “Plaintiff informed Defendants via the online portal after [sic] several issues outlined in the SAC but many, if not all, remained improperly addressed.” (SAC, ¶ 20; Exh. B.) “Defendants had a duty to provide Plaintiff with safe, clean, non-discriminatory quiet and [sic] enjoyment of the Subject Premises but failed to do so.” (SAC, ¶ 21.) Plaintiff alleges that Defendants ultimately provided Plaintiff with a wrongful 3-Day Notice to Perform or Quit. (SAC, ¶ 22; Exh. C.) The SAC alleges that the wrongful 3-Day Notice to Perform or Quit also failed to include a “protections notice” as mandated by LAMC 49.99.22. (SAC, ¶ 23.)

Plaintiff alleges that the attempt to wrongfully evict an elderly, disabled tenant is simply discriminating against a handicap tenant who pays lower rent due to residing there since 2008. (SAC, ¶ 24.) Plaintiff alleges that his complaints about the habitability conditions of the unit were never addressed. (SAC, ¶ 24.) Plaintiff alleges that he complied with the 3-Day Notice to Perform or Quit and that after the issuance of such notice, he received an unlawful detainer lawsuit for an issue that was cured. (SAC, ¶ 26.) Plaintiff remained a tenant and was granted a motion for summary judgment to remain in possession of the Subject Premises during the unlawful detainer action. (SAC, ¶ 26.)

Plaintiff alleges that he has suffered serious emotional distress and could not sleep for several nights due to the issues with the Subject Premises and felt embarrassed and uncomfortable in front of his family because Defendants continued to discriminate against a handicap individual. (SAC, ¶ 27.) Plaintiff’s disability has gotten worse due to the stress of a potential eviction brought against him for an issue he had cured and knowing his Section 8 can be terminated if he gets evicted. (SAC, ¶ 27.) Plaintiff alleges that the actions of Defendants has already caused him to manifest major health and safety issues. (SAC, ¶¶ 28-29.)

Starting on or about October 4, 2021, Plaintiff reported to Defendants the non-functionality of the Plaintiff’s blinds, toilet seat, hot and cold handles in the shower, and bathroom sink. (SAC, ¶ 35.) Defendants never addressed those issues. (SAC, ¶ 35.) Defendants have demonstrated disorganization, poor communication, and routine failure to respond to Plaintiff inflicted unnecessary distress, discrimination, violations of the Americans with Disabilities Act, confusion, and emotional harms and demonstrated complete disregard for the supposed 3-Day Notice to Perform or Quit. (SAC, ¶ 37.) Plaintiff has complained to Defendants about the severe actions and impact of Defendants’ wrongful actions. (SAC, ¶ 38.) Defendants had the power to make changes to their actions, including employment of abatement measures, alternative accommodations for being handicap, but refused to take any corrective and/or curative measures in spite of actual knowledge of the Plaintiff’s ability to have quiet enjoyment and his health/and or safety. (SAC, ¶ 38.) Plaintiff alleges that Defendants continually threatened him with eviction. (SAC, ¶ 39.)

Plaintiff alleges that he “brings this action to address the wrongful eviction attempt at the hands of the Defendants.” (SAC, ¶ 43.) Plaintiff alleges that he received an improper 3-Day Notice to Perform or Quit after curing the issue, and such notice was issued in violation of Los Angeles Municipal Code § 49.99.2. (SAC, ¶ 44.) Plaintiff alleges that Defendants attempted to wrongfully evict him. (SAC, ¶ 45.)

C. Applicability of the Litigation Privilege to the Fifth, Eighth, Ninth, Tenth, and Eleventh Causes of Action

Defendants contend that the fifth, eighth, ninth, tenth, and eleventh causes of action are barred by the litigation privilege.

“The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a publication or broadcast made as part of a judicial proceeding is privileged.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” (Ibid.) “The privilege is not limited to statements made during trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Ibid.) The litigation privilege is given “a broad interpretation.” (Ibid.)

“[T]he litigation privilege applies to . . . tort causes of action . . . to the extent that the gravamen of the cause of action is the assertedly tortious filing of [an] unlawful detainer, [or] the service of a notice to quit.” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1492.) A notice to quit is a prelitigation communication. (Id. at p. 1486.) “A notice of eviction is a communication regarding prospective litigation and, as such, it is not necessarily part of a judicial proceeding.” (Ibid., citation omitted.) “To be protected by the litigation privilege, a communication must be in furtherance of the objects of the litigation.” (Ibid.) “This is part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.” (Ibid.) “A prelitigation communication is privileged only when it relates to the litigation that is contemplated in good faith and under serious consideration.” (Ibid., citations omitted.)

In determining whether a notice to quit comes within the scope of the litigation privilege, “the focus is on whether the unlawful detainer action was seriously contemplated when the notice was served without regard to its merits of the landlord’s motive.” (Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1552.) Where a notice to perform or quit is quickly followed by an unlawful detainer action, the litigation privilege bars causes of action arising from the issuance of the notice to perform or quit. (Ibid.) The litigation privilege

can be raised as an argument on demurrer to bar a cause of action. (Silberg v. Anderson (1990) 50 Cal.3d 205, 210-211.)

The Court finds that the gravamen of the fifth, eighth, ninth, tenth, and eleventh causes of action are the three-day notice to perform or quit and the commencement of the unlawful detainer action. (SAC, ¶¶ 108-139, 158-216.) The crux of the SAC is the purported wrongful issuance of the notice to perform or quit and subsequent unlawful detainer action. The Court accordingly SUSTAINS the demurrer of Defendants to the fifth, eighth, ninth, tenth, and eleventh causes of action in the SAC with 20 days leave to amend.

D. Sufficiency of the Twelfth Cause of Action

Los Angeles Municipal Code section 49.99.2 provides that “[u]ntil January 31, 2023, no Owner shall endeavor to evict or evict a residential tenant for non-payment of rent if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic.” (See LAMC § 49.99.2 < https://codelibrary.amlegal.com/codes/los_angeles/latest/lamc/0-0-0-325992> [as of March 27, 2024].) A landlord is prohibited from evicting a tenant based on: (1) non-payment of rent; (2) “no-fault” reasons; (3) the presence of unauthorized occupants or pets; or (4) nuisance related to COVID-19. (Ibid.) The definition of a no-fault eviction under LAMC § 49.99.2 is in accord with Civ. Code § 1946.2. (See LAMC § 49.99.1 < https://codelibrary.amlegal.com/codes/los_angeles/latest/lamc/0-0-0-326008#JD_49.99.1.> [as of March 27, 2024].) A “no-fault” eviction includes instances where the rental property is being withdrawn from the rental market, an owner intends to occupy the premises, an owner is complying with government orders, or an owner intends to demolish or substantially remodel the premises. (Civ. Code § 1946.2(b)(2).)

The twelfth cause of action in the SAC is based on the issuance of the three-day notice to perform or quit and subsequent unlawful detainer action. (SAC, ¶¶ 217-244.) The three-day notice to perform or quit is based on Plaintiff or someone in Plaintiff’s unit making loud noises during the day and late at night by playing loud music and disturbing other tenants in the property (SAC, Exh. C) and is not based on a COVID-19 nuisance, non-payment of rent, the

presence of authorized persons or pets, or a “no-fault” reason articulated in Civ. Code § 1946.2(b)(2).

As such, Plaintiff has not stated a cause of action for violation of LAMC § 49.99. The Court therefore SUSTAINS the demurrer of Defendants to the twelfth cause of action with 20 days leave to amend.

E. Sufficiency of the Thirteenth Cause of Action

“[N]o fiduciary relationship is established merely because . . . the parties reposed trust and confidence in each other.” (Girard v. Delta Towers Joint Venture (1993) 20 Cal.App.4th 1741, 1749.) “[A] landlord and tenant do not generally stand in a fiduciary relationship.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 513.) “Before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221.)

Pursuant to the thirteenth cause of action, Plaintiff alleges that “[b]y virtue of the lease agreement and landlord-tenant relationship, Defendant had a fiduciary duty to Plaintiff to act with the utmost good faith and in his best interests.” (SAC, ¶ 246.) Here, Plaintiff has not alleged any facts showing that: (1) Defendants knowingly undertook or acted on behalf of and for the benefit of Plaintiff; or (2) a fiduciary duty exists in the landlord-tenant relationship as a matter of law. A landlord-tenant relationship, without more, does not create a fiduciary duty.

The demurrer of Defendants to the thirteenth cause of action in the SAC is therefore SUSTAINED with 20 days leave to amend.

G. Leave to Amend

The Court will allow Plaintiff an opportunity to amend the SAC. However, if a Third Amended Complaint is filed—and if such pleading is deemed insufficient on demurrer—the Court will consider sustaining such demurrer without leave to amend in Plaintiff fails to address how the complaint might be further amended.

Based on the foregoing, the demurrer of Defendants to the fifth, eighth, ninth, tenth, eleventh, twelfth, and thirteenth causes in the SAC is SUSTAINED with 20 days leave to amend.