Judge: Teresa A. Beaudet, Case: 22STCV21631, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV21631    Hearing Date: February 9, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Nechama Kravitz (“Plaintiff”) filed this action on July 5, 2022 against Defendant Conrad Property Management Inc. (“Defendant”), asserting causes of action for (1) declaratory relief, (2) Business and Professions Code § 17200, (3) unlawful retention of security deposit, (4) breach of residential lease agreement, (5) negligence, and (6) conversion. 

Defendant now demurs to each of the causes of action of the Complaint and moves to strike portions of the Complaint. Plaintiff opposes both.

Demurrer

A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[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.) 

B.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that she rented a residential home from Defendant which was located at 5127 Dickens Street Unit C, Sherman Oaks, CA 91403 (the “Home”). (Compl., ¶ 19.) As a term of the agreement to rent the home, Plaintiff was required to pay, and did pay, a security deposit in the amount of $1,849.00. (Compl., ¶ 20.) In addition, pursuant to the terms of the agreement, Defendant was required to return the security deposit to Plaintiff. (Compl., ¶ 21.) Plaintiff alleges that she was charged a $215 standard cleaning deposit fee, that she repeatedly protested the charge, and that she was told that the fee is charged to all tenants. (Compl., ¶ 26- 27.)

C.    First Cause of Action – Declaratory Relief

Defendant asserts that the declaratory relief cause of action fails to state a cause of action as it attempts to have the Court decide a past wrong. Defendant notes that “[d]eclaratory relief operates prospectively, serving to set controversies at rest. If there is a controversy that calls for a declaration of rights, it is no objection that past wrongs are also to be redressed; but there is no basis for declaratory relief where only past wrongs are involved. Hence, where there is an accrued cause of action for an actual breach of contract or other wrongful act, declaratory relief may be denied.” ((Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366 [internal quotations and emphasis omitted].)

In support of the first cause of action, Plaintiff alleges she is “entitled to a judicial declaration that the non-refundable deposit in the form of a standard clean fee clause is invalid and request that the Court issue a declaration of the parties’ rights in that regard.” (Compl., ¶ 32.) Defendant asserts that the declaratory relief cause of action accordingly does not seek to proactively address matters pending between the parties. Plaintiff does not appear to address this point in the opposition. 

Defendant also notes that “before declaratory relief may be denied on the ground of the existence of other remedies, it must clearly appear that the asserted alternative remedies are available to the plaintiff and that they are speedy and adequate or as well suited to the plaintiff’s needs as declaratory relief.” ((Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753, 761 [internal quotations omitted].) Defendant asserts that Plaintiff’s declaratory relief cause of action “is synonymous with the balance of Plaintiff’s remaining causes of action, all which concern section 1950.5.” (Demurrer at p. 4:4-6.) In the declaratory relief cause of action, it is alleged that “Plaintiff contends that Defendant cannot charge a non-refundable security deposit since it is expressly unlawful and constitutes security deposit theft under Civil Code section 1950.5.” (Compl., ¶ 30.) Each of Plaintiff’s remaining causes of action also concern alleged violations of Civil Code section 1950.5. Plaintiff does not address this point in the opposition.

Based on the foregoing, the Court sustains Defendant’s demurrer to the first cause of action.  

D.    Second Cause of Action – Business and Professions Code § 17200

Business and Professions Code section 17200, et seq. (the “Unfair Competition Law” or “UCL”) prohibits fraudulent, unlawful and unfair business practices. “By proscribing ‘any unlawful’ business act or practice . . . , the UCL ‘borrows’ rules set out in other laws and makes violations of those rules independently actionable.” ((Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) A “violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.” ((Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) However, even beyond violations of another law, “[u]nder the broad scope of the UCL, [t]he statutory language referring to ‘any unlawful, unfair or fraudulent’ practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. . . . [T]he Legislature . . . intended by this sweeping language to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.” ((Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 678 [internal quotations and citations omitted].)

Defendant asserts that the second cause of action must fail because “section 17200, et seq., is intended to protect the consumer – not parties to a lease agreement.” (Demurrer at p. 5:7-8.) But Defendant fails to cite to any legal authority to support this assertion.

Defendant also asserts that Plaintiff fails to allege any on-going wrongful business conduct or practice. “An unlawful business activity includes anything that can properly be called a business practice and that at the same time is forbidden by law. The Legislature intended . . . to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.” ((People v. McKale (1979) 25 Cal.3d 626, 632 [internal quotations and citations omitted].) But in the second cause of action, it is alleged that “Plaintiff was charged a non-refundable deposit in the amount of $215, because Defendant has a business plan and practice of charging all tenants at least $215 from their security deposit, no matter how clean the home is when the tenant leaves, as compared to when they took possession of the property.” (Compl.,      ¶ 39, emphasis added.)

The Court does not find that Defendant has demonstrated that Plaintiff failed to state a cause of action for violation of Business and Professions Code section 17200, et seq., and thus overrules the demurrer to the second cause of action.

E.     Third Cause of Action – Unlawful Retention of Security Deposit under Civil Code section 1950.5

“Civil Code section 1950.5 defines and regulates the use of security for a rental agreement for residential property…The section provides, as relevant, that security means any payment, fee, deposit or charge, including, but not limited to, an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following, and lists compensation for a tenant’s default, repair of damages to the premises, cleaning upon termination of the tenancy, and to remedy future defaults. The section limits the amount the landlord may demand as security, however denominated, in an amount or value in excess of an amount equal to two months’ rent, in the case of unfurnished residential property…The section specifies how the security may be used by the landlord, when the security must be refunded to the tenant, how the security may be transferred if the property is sold, the penalties for noncompliance with the section, and the manner of proving a security deposit.” ((People v. Tannenbaum (1994) 23 Cal.App.4th Supp. 6, 9 [internal quotations and citations omitted].) 

Defendant argues that the third cause of action is insufficient because “nowhere are there to be found any allegations that Plaintiff is entitled to recover the entirety of her security deposit…Plaintiff’s allegations are insufficient to allege that Defendant was not entitled to withhold the $215 from Plaintiff’s security deposit in order to clean Plaintiff’s unit after she vacated so as to return the Property to the condition it was in at the time Plaintiff’s tenancy commenced.” (Demurrer at p. 7:1-7.)

In the Complaint, Plaintiff alleges that she was “charged a non-refundable deposit in the amount of $215, because Defendant has a business plan and practice of charging all tenants at least $215 from their security deposit, no matter how clean the home is when the tenant leaves, as compared to when they took possession of the property.” (Compl., ¶ 51.) But Plaintiff does not appear to allege that she was charged $215 notwithstanding the fact that it cost less than $215 for Defendant to clean Plaintiff’s premises to the extent “necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.” ((Civ. Code, § 1950.5, subd. (b)(3).) Pursuant to Civil Code section 1950.5, subdivision (b)(3), “security” means “any payment, fee, deposit, or charge…that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or that is imposed as an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following…[t]he cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.”

Based on the foregoing, the Court sustains the demurrer to the third cause of action.

F.     Fourth Cause of Action – Breach of Residential Lease Agreement

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Careau & Co . v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

            Defendant asserts that the fourth cause of action must fail because Plaintiff does not identify whether the subject lease agreement is written, oral, or implied by conduct. “[T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct.
(Otworth v. Southern Pac. Transportation Co . (1985) 166 Cal.App.3d 452, 458-459.) The Court notes that in connection with the sixth cause of action for conversion, Plaintiff alleges that “Plaintiff paid to Defendant a security deposit for the home leased which were intended to be returned under the subject lease agreement and deducted from only [sic] as allowed by Cal. Civ. Code §1950.5, pursuant to both California law and the written lease agreements between the parties.” (Compl., ¶ 77, emphasis added.) However, the paragraphs in the conversion cause of action are not incorporated into the fourth cause of action.  

            Next, Defendant notes that Plaintiff fails to attach either a copy of the lease agreement to the Complaint or set forth the terms verbatim by their effect. “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co., supra, 166 Cal.App.3d at p. 459.) Plaintiff fails to respond to this point in the opposition.

            Based on the foregoing, the Court sustains the demurrer to the fourth cause of action.

G.    Fifth Cause of Action – Negligence

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” ((Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

Defendant asserts that the fifth cause of action must fail because it contains only conclusory allegations that “Defendant’s outrageous, abusive, and intrusive acts as described herein constitute negligence.” (Compl., ¶ 64.) But the Complaint also alleges that “Defendant owed Plaintiff a duty to refrain from unlawful retention of security deposit in violation of Ca. Civ. Code 1950.5,” and that “[t]he breach of such duty proximately caused injury to Plaintiff.” (Compl., ¶¶ 67-68.) 

Next, Defendant asserts that the Complaint fails to allege any particular dates, whether it be concerning the commencement or termination of Plaintiff’s tenancy, rendering the negligence cause of action uncertain. Plaintiff does not respond to this point or address the negligence cause of action in the opposition. Defendant cites to Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20, where the Court of Appeal noted that “Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.” 

Based on the foregoing, the Court sustains the demurrer to the fifth cause of action.

H.    Sixth Cause of Action for Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” ((Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 221 [internal quotations omitted].)

Defendant asserts that the sixth cause of action must fail because Plaintiff fails to sufficiently allege that she has an entitlement to the return of the entirety of the security deposit. In support of the sixth cause of action, Plaintiff alleges that she “paid to Defendant a security deposit for the home leased which were intended to be returned under the subject lease agreement and deducted from [sic] only as allowed by Cal. Civ. Code §1950.5, pursuant to both California law and the written lease agreements between the parties.” (Compl., ¶ 77.) Plaintiff further alleges that “Plaintiff suffered, and will continue to suffer, actual damages, in the amount of the security deposit wrongfully withheld, in the amount of the security deposit, which is $215.00.” (Compl., ¶ 79.)

As discussed above in connection with the third cause of action for unlawful retention of security deposit, Plaintiff does not appear to allege that it cost less than $215 to clean Plaintiff’s premises to the extent “necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.” (Civ. Code, § 1950.5, subd. (b)(3).) Plaintiff acknowledges in the sixth cause of action that Defendant may take certain deductions from a security deposit, pursuant to Civil Code section 1950.5. (Compl., ¶ 76.)

Based on the foregoing, the Court sustains the demurrer to the sixth cause of action.

            Motion to Strike

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Defendants move to strike a number of allegations from the Complaint.

As an initial matter, because the Court sustains Defendant’s demurrer to the third, fifth, and sixth causes of action, Defendant’s motion to strike portions of paragraph 53 and paragraphs 55, 71, 73, 83, 85, and 87 from the Complaint is denied as moot.

Defendant also moves to strike paragraphs 3, 4, 5, 6, and 7 from the Complaint. Defendant contends that these paragraphs refer to alleged events that are not pertinent to Plaintiff’s causes of action and are thus irrelevant. The Court does not find that the background allegations set forth in paragraphs 3-7 of the Complaint are irrelevant and thus declines to strike them.  

Next, Defendant moves to strike Plaintiff’s request for attorney’s fees. Defendant notes that “[t]he Legislature, following the general American rule, has established that each party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees.” ((Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.)

Defendant notes that Plaintiff alleges that she “seeks an award of attorneys’ fees as a private attorney general.” (Compl., ¶ 42(e).) Pursuant to Code of Civil Procedure section 1021.5, “[u]pon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” Defendant asserts that attorney’s fees are not appropriate under Code of Civil Procedure section 1021.5 here, because the interests Plaintiff seeks to vindicate by this action are not important, substantial, or public, and no nonpecuniary benefit flows to the public as a result of this action.

In the opposition, Plaintiff does not argue that attorney’s fees are appropriate under Code of Civil Procedure section 1021.5 here. Rather, Plaintiff asserts that she should be given the opportunity in discovery to explore whether a basis for attorney’s fees exists here. Plaintiff cites to Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699, where the Court of Appeal noted that “Camenisch also argues that the court erred in refusing to strike Burns’s prayer for attorney fees. Camenisch asserts that the prayer must be stricken because the complaint did not allege a contract allowing recovery of attorney fees by the prevailing party. Burns replies, correctly, that the court was not required to strike the prayer before he has had a full opportunity to determine, through discovery, whether a basis for recovery exists.” Plaintiff also cites to Yassin v. Solis (2010) 184 Cal.App.4th 524, 533, where the Court of Appeal found that “[t]here is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings.” Based on the foregoing, the Court denies Defendant’s motion to strike Plaintiff’s request for attorney’s fees.

Defendant also moves to strike Plaintiff’s request for punitive damages. (See Compl., ¶ 8, p. 16:19.) A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. ((Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code., § 329, subd. (c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

            Defendant asserts that the request for punitive damages should be stricken from the Complaint because it is devoid of any facts that would support an allegation of malice, despicable conduct, or a conscious disregard for the rights and safety of others. The Court agrees that Plaintiff has not alleged facts sufficient to demonstrate a basis for punitive damages. Accordingly, Defendant’s motion to strike the portion of paragraph 8 of the Complaint referencing punitive damages and page 16:19 of the Complaint is granted.   

            Defendant moves to strike the entirety of paragraph 8 of the Complaint, which alleges that “[s]ince the landlord in this matter stole the security deposit of a tenant in ‘bad faith’, this tenant demands a return of the security deposit, interest on that amount, statutory damages of two times the entire deposit amount, payment for emotional distress damages and inconvenience, and punitive damages.” (Compl., ¶ 8.)

            Defendant asserts that Plaintiff fails to allege any facts demonstrating that she is entitled to recover two times $3,698.00 in statutory damages. In connection with the third cause of action, Plaintiff alleges, inter alia, that she is “entitled to two times $3,698.00 in statutory damages.” (Compl., ¶ 53.) As set forth above, the Court sustains Defendant’s demurrer to the third cause of action. Thus, the Court does not find that Plaintiff has alleged a basis for requesting “statutory damages of two times the entire deposit amount” in paragraph 8 of the Complaint, and grants Defendant’s motion to strike that allegation.

Defendant also asserts that Plaintiff fails to allege any facts demonstrating that she is entitled to recover emotional distress damages. Defendant notes that “a preexisting contractual relationship, without more, will not support a recovery for mental suffering where the defendant’s tortious conduct has resulted only in economic injury to the plaintiff.” ((Erlich v. Menezes (1999) 21 Cal.4th 543, 554-555); (see also Mercado v. Leong (1996) 43 Cal.App.4th 317, 324 [“A plaintiff can only recover for serious emotional distress, i.e., emotional distress such that a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case. Such damages are unlikely where the interests affected are merely economic.” (internal quotations and citation omitted).]) Defendant asserts that here, Plaintiff has solely alleged an economic injury, i.e., that Defendant has wrongfully withheld a portion of Plaintiff’s security deposit, such that Plaintiff’s request for emotional distress damages should be stricken. The Court agrees. In the opposition, Plaintiff does not address the foregoing legal authority. Rather, Plaintiff argues that “[t]o steal money from a tenant that is already engaged in a costly residential move is facts to support a tenant from suffering emotional harm.” (Opp’n at p. 6:25-26.) Plaintiff fails to cite to any legal authority in support of this assertion. Based on the foregoing, the Court grant’s Defendant’s motion to strike the request for “payment for emotional distress damages” from paragraph 8 of the Complaint. 

Defendant also asserts that Plaintiff’s request for injunctive relief is inappropriate based upon the facts alleged. In paragraphs 16, 17, and 18 of the Complaint, Plaintiff alleges that she seeks “permanent public injunctive relief.” Plaintiff also seeks injunctive relief in connection with the second cause of action for violation of Business and Professions Code section 17200, and in the prayer for relief. (Compl., ¶ 42(a)-(c), pp. 16:20-17:2.)

Defendant cites to Civil Code section 3422, which provides that “[e]xcept where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: 1. Where pecuniary compensation would not afford adequate relief; 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, 4. Where the obligation arises from a trust.” Defendant asserts that here, Plaintiff has an adequate remedy at law under Civil Code section 1950.5, and that monetary damages are identifiable.

Defendant also asserts that Plaintiff, as a former tenant, no longer maintains any particular relationship with Defendant which would subject Plaintiff to additional potential harm or render equitable relief appropriate herein. Defendant further contends that “Plaintiff fails to identify even one particular individual other than Plaintiff that would benefit from this nebulous injunctive relief Plaintiff seeks, all of which seems to have been pled in order to avoid both the appropriate small claims jurisdiction for this matter and any particularized issues Plaintiff may encounter due to the inescapable fact that Plaintiff is no longer a tenant of the Premises and faces no future ongoing harm that an equitable remedy might cure.” (Mot. at p. 12:2-6.) In the opposition, Plaintiff does not address the foregoing arguments or her request for injunctive relief. Based on the foregoing, the Court grants Defendant’s motion to strike Plaintiff’s request for injunctive relief. (Compl., ¶¶ 16, 17, 18, 42(a)-(c), pp. 16:20-17:2.)

Lastly, the Court notes that Defendant’s notice of motion also indicates that Defendant seeks to strike Plaintiff’s request for “[g]eneral Damages according to proof.” (Compl., p. 16:18.) Defendant’s motion to strike does not contain any argument as to why Plaintiff’s request for general damages should be stricken, and the Court thus declines to strike it.

Conclusion

For the foregoing reasons, the Court sustains Defendant’s demurrer to the first, third, fourth, fifth, and sixth causes of action, with leave to amend. The Court overrules Defendant’s demurrer to the second cause of action.

The Court grants Defendant’s motion to strike in part and denies the motion to strike in part, as set forth above.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Defendant is ordered to file and serve its answer within 30 days of the date of this Order.¿ 

Defendant is ordered to give notice of this Order.¿ 

DATED:  February 9, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court