Judge: Stephen P. Pfahler, Case: 22CHCV00415, Date: 2023-03-08 Tentative Ruling

Case Number: 22CHCV00415    Hearing Date: March 8, 2023    Dept: F49

Dept. F-49

Date: 3-8-23

Case #22CHCV00415

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendant, REO Management Solutions, LLC

RESPONDING PARTY: Plaintiff, Dominic Barbar, pro per

 

RELIEF REQUESTED

Demurrer to the Second Amended Complaint

·         1st Cause of Action: Conversion

·         2nd Cause of Action: Breach of Covenant of Good Faith and Fair Dealing

·         3rd Cause of Action: Breach of Covenant of Quiet Enjoyment of Premises

·         4th Cause of Action: Trespass

·         5th Cause of Action: Nuisance

·         6th Cause of Action: Intentional Infliction of Emotional Distress

·         7th Cause of Action: Negligent Infliction of Emotional Distress

·         8th Cause of Action: Negligence

·         9th Cause of Action: Fraud

·         10th Cause of Action: Fraud

 

SUMMARY OF ACTION

On May 24, 2021, plaintiff Dominic Barbar entered into a one year lease with third party Ehsan Yaghoubi for certain real property located at 25511 Schubert St., unit F, Stevenson Ranch. On March 31, 2022, a trustee sale occurred for the premises, which led to the recording of the Trustees Deed upon Sale on April 4, 2022. Defendant Federal National Mortgage Association (“Fannie Mae”) acquired the property in the sale.

 

Following the sale, on May 19, 2022, Fannie Mae served a notice of intent to evict Barbar and a notice to vacate the premises. While the lease was set to expire on May 23, 2022, Plaintiff alleges discussing an impending business trip out of the country with an expected return date on May 24, 2022 with Raquel Magro, an agent for defendant Pinnacle Estate Properties, Inc. (Pinnacle). Plaintiff requested additional time for an unspecified purpose.

 

Plaintiff maintains that said notice to the real estate agent rendered the subsequent “lockout” of the premises (e.g. changed locks), completed without a court or Los Angeles County Sheriff order, constituted an “illegal” act by Fannie Mae and REO Management Solutions, LLC. Plaintiff alleges denial of access to the premises by his son on May 14, 2021, and subsequently missing property. As a result of the lockout and missing property, Plaintiff filed a sheriff’s report on May 22, 2021.

 

On June 8, 2022, Plaintiff filed a complaint for Conversion, Breach of Covenant of Good Faith and Fair Dealing, Breach of Covenant of Quiet Enjoyment of Premises, Trespass, Nuisance, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligence, and Fraud (twice). On September 19, 2022, Plaintiff filed a first amended complaint. Because the first amended complaint was filed after the opposition due date on the September 27, 20222, scheduled demurrer, the court sustained the demurrer on the complaint, and deemed the first amended complaint filed. (Code Civ. Proc., § 472.)

 

On September 26, 2022, Plaintiff dismissed Pinnacle Estate Properties and Raquel Magro. On October 12, 2022, Plaintiff filed the second amended complaint for Conversion, Breach of Covenant of Good Faith and Fair Dealing, Breach of Covenant of Quiet Enjoyment of Premises, Trespass, Nuisance, Intentional Infliction of Emotional Distress (6th and 7th Causes of Action), Negligence, and Fraud (9th and 10th Causes of Action.) The second amended complaint was filed without leave of court.

 

RULING: Sustained with Leave to Amend in Part/Overruled in Part.

Defendant REO Management Solutions, LLC (REO) brings the subject demurrer to the entire complaint on grounds of insufficient facts and/or legal basis of support for the individual causes of action. Plaintiff in a four court/six calendar late opposition defends all claims, and alternatively requests leave to amend if the court is inclined to sustain the demurrer. The court accepts the late filed reply. The reply reiterates the lacking factual basis in support of any of the pled causes of action.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.

 

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

1st Cause of Action, Conversion Sustained with Leave to Amend.

REO challenges the subject cause of action based on lack of facts supporting a claim of conversion against it. Plaintiff in opposition recites the elements to the claim, and relies on a series of conclusions suggesting the “dominion” over the property exercised by Defendant led to the conversion.

 

“‘A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.’” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

 

The plain language of the complaint itself states that the alleged conversion of property and funds occurred upon REO and Fannie Mae obtaining the lockout, thereby excluding Plaintiff and his son from the property. [Sec. Amend. Comp., ¶¶ 27-28.] Notwithstanding the plain language of the operative pleading, REO cites to the exhibits incorporated into the complaint. REO contends the exhibits show that Plaintiff was actually granted access to the property with the new keys (the court cannot determine the actual documents relied upon, as the cited pages in the demurrer only refer to pages on otherwise non-paginated documents, and the represented pages in no way support the argument). Regardless, the court assumes that upon access to the premises following the demand for entry, Plaintiff discovered the allegedly missing items.

 

Given the presumption of the loss of property during the period after REO asserted control of the premises leads to the question of whether said changing of the locks constituted conversion. Nothing in the operative complaint actually alleges any interference with the personal property itself by REO. The rekeying of the locks certainly interfered with entry into the premises, but the operative complaint lacks facts supporting the nexus to the loss of the personal property. The court therefore finds Plaintiff fails to allege a articulate any actual factual basis, with REO. In other words, while denial of access of the premises ostensibly supports a finding of dominion over the premises, nothing in the operative pleading sufficiently establishes actual exercise of control over the personal property within the premises found ultimately missing.

 

“However, every failure to deliver is not such a serious interference with the owner's dominion that the defendant should be required to pay the full value of the goods. (Citation.) And the act of taking possession of a building and locking it does not, of itself, constitute conversion of the personal property therein. Nor does the permission of the possessor of the realty by which personal property is allowed to remain upon the premises make him liable for the goods. (Citations.) To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property. … And ordinarily the courts have declared that one rightfully in possession of real property who removes, to a warehouse or other place, chattels found on it belonging to another, does not assert ownership or control over them to the extent of making him liable for conversion.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 550–551.) The demurrer is sustained.

 

2nd Cause of Action, Breach of Covenant of Good Faith and Fair Dealing: Sustained with Leave to Amend.

REO challenges the subject cause of action based on the lack of an underlying contractual agreement. Plaintiff reflexively cites back to the operative complaint, and makes additional argument for privity and/or a successor in interest relationship.

 

The court finds no actual basis for an underlying contractual agreement between the parties. The lack of a valid contractual agreement supports the demurrer. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) The demurrer is sustained.

 

3rd Cause of Action, Breach of Covenant of Quiet Enjoyment of Premises: Sustained with Leave to Amend.

REO challenges the subject cause of action on grounds that no underlying contract/lease agreement exists between the parties, thereby requiring the provision of the implied covenant of quiet enjoyment. Plaintiff counters with claims of a “valid contact” between the parties by once again arguing for privity established via the foreclosure. Plaintiff then relies on the subsequent lockout, and subsequent lack of access after the expiration of the lease term either way, as additional support.

 

The court finds no basis of a lease/contractual relationship between the parties. Regardless, under the terms of the lease, Plaintiff was admittedly out of the country and returned after the expiration of any and all agreements. The court finds no basis for a breach of the implied covenant of quiet enjoyment against REO. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.) The demurrer is sustained.

 

4th Cause of Action, Trespass: Overruled.

REO challenges the subject claim on grounds that Plaintiff lacks a basis for a claim of trespass given the lapse of the lease. Plaintiff again reiterates the complaint, and contends the lease entitled Plaintiff to control of the premises during the relevant period.

 

“‘Trespass is an unlawful interference with possession of property.’ (Citation.) The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.)

 

REO also cites to Civil Code section 1954 in regards to landlord rights to enter the premises.

 

(a) A landlord may enter the dwelling unit only in the following cases:

(1) In case of emergency.

(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

…

(b) Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.

(c) The landlord may not abuse the right of access or use it to harass the tenant.

(d)(1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.

(2) If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

…

(e) No notice of entry is required under this section:

(1) To respond to an emergency.

(2) If the tenant is present and consents to the entry at the time of entry.

(3) After the tenant has abandoned or surrendered the unit.

 

Civ. Code, § 1954

 

REO alleges the provision of sufficient notice for entry into the premises. The court fundamentally finds a lack of any basis establishing a landlord tenant relationship between the parties. The court otherwise an insufficiently articulated basis for violation of Civil Code section 1954.

 

As for the trespass claim itself, the operative complaint alleges interference with access to the property. “[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property ‘not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.’ (Citation.) [¶] Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels ‘lies where an intentional interference with the possession of personal property has proximately caused injury.’ (Citation.) In cases of interference with possession of personal property not amounting to conversion, ‘the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.’ (Citations.) In modern American law generally, ‘[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort’ of conversion. (Citation.) [¶] The Restatement, too, makes clear that some actual injury must have occurred in order for a trespass to chattels to be actionable. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350–1351.)

 

For purposes of the subject demurrer, the court finds the second amended complaint alleges a claim for trespass based on the deprivation of entry to the premises. NOTHING in this ruling reflects on the quality of the damages claim; the court only finds the trespass claim sufficiently pled. The demurrer is overruled.

 

5th Cause of Action, Nuisance: Sustained with Leave to Amend.

REO challenges the claim on grounds that Plaintiff fails to allege any supporting facts. Plaintiff in opposition sets forth certain elements for nuisance, and contends Defendant interfered with land rights.

 

A private nuisance arises from the interference with the quiet use and enjoyment of land. (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534.) “Anything which is injurious to health, including … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…” constitutes a private nuisance. (Civ. Code, §§ 3479, 3481.) “A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.)

 

The denial of access to the property while potentially constituting an interference with the enjoyment of the property insufficiently supports the finding of a nuisance in that a mere lockout is not an activity associated with a nuisance causing activity. Given the trespass cause of action, the court finds allowing the nuisance claim on essentially the same core of facts renders the nuisance claim too broad. The demurrer is sutained.

 

6th Cause of Action, Intentional Infliction of Emotional Distress: Sustained with Leave to Amend.

REO challenges the claim on grounds of a lack of outrageous conduct. Plaintiff contends the lockout constituted outrageous conduct.

 

“‘The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.’ [¶] Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.)

 

Nothing in the lockout and subsequent agreement to allow Plaintiff back into the premises supports a finding of outrageous conduct directed towards Plaintiff, or more logically, a reckless disregard for tenant rights of Plaintiff, with the purpose or result of emotional distress. The demurrer is sustained.

 

7th Cause of Action, Negligent Infliction of Emotional Distress: Sustained with Leave to Amend.

8th Cause of Action, Negligence: Sustained with Leave to Amend.

REO challenges the lack of any basis of duty, or independent basis for the claim. “The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Negligent infliction of emotional distress depends on the existence of a valid negligence claim. The court finds no basis of duty, or independent bystander or direct victim theory pled. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) The demurrer is sustained.

 

9th Cause of Action, Fraud: Sustained with Leave to Amend.

10th Cause of Action, Fraud: Sustained with Leave to Amend.

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” … [¶] ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

 

“‘Active concealment or suppression of facts by a nonfiduciary “is the equivalent of a false representation, i.e., actual fraud.” [Citation.] (Citation).)’ A fraud claim based upon the suppression or concealment of a material fact must involve a defendant who had a legal duty to disclose the fact. (Civ.Code, § 1710, subd. (3) [a deceit includes “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact”]; Citation.)” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186.) “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612–613.)

 

“A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Lazar v. Superior Court, supra,12 Cal.4th at p. 645.)

 

The court finds insufficient factual particularity for any form of fraud. Nothing in the operative complaint alleges any wrongful misrepresentation or basis of reliance. The demurrer is sustained.

 

The demurrer is therefore overruled as to the trespass cause of action, and sustained with leave as to the remainder. Plaintiff is granted 20 days leave to amend. Plaintiff may only add facts in support of the pled claims. Plaintiff may NOT add any new causes of action, but may add facts. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If Plaintiff fails to timely file an amended complaint, defendant shall answer the remaining cause of action for trespass within 10 days of the lapsed period for the filing of the amended pleading. If Plaintiff adds any new claims without leave of court, Defendant may bring a motion to strike on these items.

 

“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).) The court has now considered two iterations of the complaint. The court will consider the applicable standard should a third amended complaint, and subsequent demurrer get filed.

 

Demurrers of Federal National Mortgage Association (“Fannie Mae”) and National Field Representatives set for March 28, 2023 and April 3, 2023, respectively, may go off-calendar as moot, if Plaintiff files an amended complaint. The court also reserves the right to continue the hearings prior to the filing of any amended pleading.

 

Defendant to provide notice to ALL parties.