Judge: Shirley K. Watkins, Case: 22VECV01584, Date: 2023-04-25 Tentative Ruling

Case Number: 22VECV01584    Hearing Date: April 25, 2023    Dept: T

22VECV01584 MINDY SUE HAWKINS, AN INDIV... vs ELIYAHU NISSIM ZILBERSTEIN

FIRST APPEARANCE FEES ARE DUE FROM DEFENDANTS.  THE COURT WILL NOT CONSIDER THE DEMURRER IF FEES ARE NOT PAID BEFORE THE HEARING.

[TENTATIVE] ORDER: 

Defendants Eliyahu Zilberstein and Total Capital, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant 28 Varna Partnership’s Demurrer to the First Amended Complaint is OVERRULED.

Introduction

            Defendants Eliyahu Zilberstein (Zilberstein,) 28 Varna Partnership (28VP,) and Total Capital, Inc. (TCI) (collectively, Defendants) demurred to Plaintiff Mary Hawkins (Plaintiff) First Amended Complaint (FAC. )  Defendants placed into issue the all five causes of action (COA) alleged in the FAC. 

            Discussion 

            As to the first COA for breach of contract, the second COA for breach of the warranty of habitability, the third COA for breach of the covenant of quiet enjoyment, the fourth COA for negligence, and the fifth COA for violation of the statutory warranty of habitability (Civ. C. sec. 1942.4,)  Zilberstein and TCI argued that Plaintiff failed to allege facts showing a landlord-tenant relationship between them and Plaintiff.  Plaintiff only alleged that she entered into a lease agreement with 28VP and the attached lease agreement shows that 28VP is the only identified party as the contracting landlord.  (FAC par. 8, Exh. A.)  However, all five COAs alleged that the parties against whom it is directed is “all Defendants.”  Plaintiff’s Opposition to the demurrer to the first COA did not address this pleading defect.  Because facts alleged in the attached exhibit are given precedence over inconsistent allegations in the FAC, there is insufficient fact pleading to show that Zilberstein and TCI are contracting parties and that a landlord-tenant relationship existed between them.  Without facts/argument from Plaintiff to show that the pleading defect can be cured, the demurrer by Zilberstein and TCI to the first COA for breach of contract is persuasive.

            As to the second, third, fourth, and fifth COAs, Plaintiff argued that Zilberstein and TCI were agents of the Owner/Landlord 28VP and Plaintiff communicated directly with Zilberstein and TCI.  However, alleging a principal-agent relationship between Co-Defendants is insufficient to impose the duties and liabilities of a landlord to the landlord’s agent.  Plaintiff’s contention to impose liability upon an agent is not supported by any legal authority. 

            The Court noted that the Demurrer did not argue any pleading defects specific to 28VP.  28VP is not seen as a moving party on the demurrer to all COAs despite the Notice to the Demurrer identifying 28VP as a moving party.

            Zilberstein and TCI’s Demurrer to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND.

            To the extent 28VP also argues the same arguments asserted by Zilberstein and TCI, 28VP’s Demurrer to the FAC is OVERRULED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.