Judge: Stephen P. Pfahler, Case: 22CHCV00415, Date: 2023-03-28 Tentative Ruling

Case Number: 22CHCV00415    Hearing Date: March 28, 2023    Dept: F49

Dept. F-49

Date: 3-28-23

Case #22CHCV00415

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendant, Federal National Mortgage Association (“Fannie Mae”)

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.

 

On March 8, 2023, the court sustained the demurrer of REO Management Solutions, LLC with 20 days leave to amend to all causes of action except for the trespass claim.

 

RULING: Moot/Overruled in Part.

Defendant Federal National Mortgage Association (“Fannie Mae”) 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 one day late opposition defends all claims, and alternatively requests leave to amend if the court is inclined to sustain the demurrer. The reply reiterates the lacking factual basis in support of any of the pled causes of action.

 

As of the date of the tentative ruling publication cutoff, the court shows no amended pleading on file following the March 8, 2023, demurrer of REO Management Solutions, LLC to the second amended complaint. The court therefore finds the demurer to all but the trespass cause of action MOOT. The court will therefore only consider the demurrer to the trespass action. The court declines to consider the demurrer for the possibility of a demurrer sustained without leave to amend as to this moving party given the ruling in the March 8, 2023, demurrer.

 

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.]

 

4th Cause of Action, Trespass: Overruled.

Fannie Mae challenges the subject claim on grounds that Plaintiff lacks a basis for a claim of trespass given the right of a landlord to enter the premises upon 24 hours notice.  Plaintiff contends the lease entitled Plaintiff to control of the premises during the relevant period, and the locks were improperly changed during said relevant lease period. Personal property ended ended up being missing following the period of asserted control.

 

“‘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.)

 

Fannie Mae 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

 

Fannie Mae 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 declines to make any determination regarding the propriety of the notice for purposes of ruling on the demurrer.

 

Regardless of the right to enter the premises or not, the operative complaint still 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.)

 

Fannie Mae otherwise offers no argument challenging the validity to the trespass claim as to property rights. 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 and interference with property rights. 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.

 

The demurrer is therefore overruled as to the trespass cause of action, and moot as to the remainder. The time frame for leave to amend as granted in the March 8, 2023, order sustaining the demurrer of REO Management Services, LLC remains applicable. If Plaintiff elects to file an  amended pleading ONE, third amended complaint will be filed representing ALL claims against ALL defendants. If Plaintiff choses not to file an amended pleading, moving defendant is ordered to answer the operative complaint within 10 days of the lapse of the amendment deadline.

 

Demurrer of National Field Representatives set for April 3, 2023, may go off-calendar as moot, if Plaintiff files an amended complaint prior to the hearing. The court also reserves the right to continue the hearing prior to the filing of any amended pleading.

 

Defendant to provide notice to ALL parties.