Judge: Serena R. Murillo, Case: 23STCV13991, Date: 2023-10-20 Tentative Ruling
Case Number: 23STCV13991 Hearing Date: October 20, 2023 Dept: 31
TENTATIVE
Defendant RHB Management’s demurrer is SUSTAINED with 30 days leave to amend.
Request for Judicial Notice
Defendant requests this court to take judicial notice
of the unlawful detainer action, styled as RHB Management Company v. Zahra
Shafiei, et al., bearing case number 23SMUD01053 and filed in the Los
Angeles County Superior Court on May 10, 2023.
Pursuant
to California Evidence Code § 452(d), the Court grants Defendant’s request for
judicial notice because it is a record of this court.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a
cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent
on the face of the pleading or via proper judicial notice. (Donabedian v.
Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially noticed.
(Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer
hearing is whether the complaint, as it stands, unconnected with extraneous
matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
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.) A demurrer for uncertainty will be sustained only where the
complaint is so bad that the defendant cannot reasonably respond. (Code Civ.
Proc., § 430.10, subd. (f).)
Meet and Confer
The demurrer is
accompanied by the declaration of Richard J.
Uss, which satisfies
the meet and confer requirement. (Code
Civ. Proc., § 430.41(a).)
Discussion
Defendant demurs to the complaint, arguing that the complaint fails to state causes
of action and is uncertain.
I.
First Cause of Action
for Breach of the Implied Covenant of Quiet Enjoyment
“[E]very
lease includes a covenant of quiet possession and enjoyment.” (Erlach v. Sierra
Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 (citing
Civ. Code, § 1927).) “Minor inconveniences and annoyances are not actionable
breaches of the implied covenant of quiet enjoyment.” (Andrews v. Mobile
Aire Estates (2005) 125 Cal.App.4th 578, 589.) “To be actionable, the
[landlord’s] act or omission must substantially interfere with a [tenant’s]
right to use and enjoy the premises for the purposes contemplated by the
tenancy.” (Id.)
Defendant argues
that Plaintiff simply alleges that Plaintiff’s door was “not safe” and no facts
have been alleged concerning any particular intrusions or any other facts that
would give rise to a breach of the implied warranty of quiet enjoyment other
than vague references. The complaint alleges that Plaintiff’s apartment door was not safe, and on several occasions
the manager on property opened the door and walked in without prior phone call
or written notice. However, Defendant also argues that “statutory causes of action
must be pleaded with particularity.” (Covenant Care, Inc. v. Superior
Court
(2004) 32 Cal.4th 771, 790.) The complaint does not plead this cause of action
with particularity and thus, the cause of action for breach of the implied
covenant of quiet enjoyment is SUSTAINED with leave to amend.
II.
Second Cause of Action for Violation of
Business and Professions Code section 17200
Pursuant to
Business & Professions Code section 17200 et seq, persons are
prohibited from engaging in unfair, unlawful, deceptive, misleading, and
fraudulent acts. “Any person who engages, has engaged, or proposes to engage in
unfair competition may be enjoined in any court of competent jurisdiction.”
(B&P § 17203.) “Any
person may pursue representative claims or relief on behalf of others only if
the claimant meets the standing requirements of Section 17204 and complies with
Section 382 of the Code of Civil Procedure.” (Id.) Any person “who has
suffered injury in fact and has lost money or property as a result of such
unfair competition” may prosecute an action under the UCL. (B&P §17204.)
“The 2004 amendment essentially stripped private plaintiffs of the power to
maintain such a suit unless they could assert an entitlement to restitutionary
relief in their own right. A private plaintiff unable to state a factual basis
for personally recovering such relief can no longer maintain an action under
the UCL.” (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th
210, 245.)
“A plaintiff alleging unfair business practices under these
statutes must state with reasonable particularity the facts supporting the
statutory elements of the violation.” (Khoury v. Maly’s of California, Inc.
(1993) 14 Cal.App.4th 612, 619.) "Although section 17200 contains sweeping
language as to what is considered a business practice, standing to sue under
the statute, as defined by Business and Professions Code section 17204, is
confined ` ‘to any `person who has suffered injury in fact and has lost money
or property' as a result of unfair competition. [Citations.]’” (Bower v.
AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1553-1554 at 1554
[quoting Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310,
320–321].) “[S]tatutory causes of action must be pleaded with particularity.” (Covenant
Care, Inc., supra, 32 Cal.4th at 790.)
The
Court cannot make out a cause of action or facts supporting a cause of action
for breach of the unfair competition law from the Complaint. Plaintiff has
simply recited conclusory and vague allegations with citations to the statutes
for mail fraud, conspiracy, and theft by false pretenses, but the vague,
unclear and conclusory allegations do not support any of these claims, and
thus, fail to support a cause of action under the unfair competition law.
The
Court therefore SUSTAINS the demurrer to the second cause of action with leave
to amend, for failure to state a cause of action and uncertainty.
Lastly, in the reply, Defendant argues that
Plaintiff’s complaint and its causes of action are barred by res judicata.
However, Defendant should have demurred on that basis in its demurrer, and not
in the reply. The only grounds on which Defendant demurred upon were failure to
state sufficient facts and uncertainty. While Defendant made this argument in
passing in its demurrer, it did not state the law and argue it was demurring on
this basis. In the reply, Defendant cites the law for res judicata and argues
that Plaintiff was able to raise the quiet enjoyment claims in the unlawful
detainer action. However, the Court cannot consider this argument made for the
first time in the reply, as Plaintiff has not had the opportunity to respond to
it. (See Reed v. Mutual Service Corp.
(2003) 106 Cal. App. 4th 1359, 1372, n.11.)
Conclusion
Accordingly, Defendant’s
demurrer is SUSTAINED with 30 days leave to amend.
Moving party is
ordered to give notice.