Judge: Theresa M. Traber, Case: 24STCV00106, Date: 2024-12-04 Tentative Ruling
Case Number: 24STCV00106 Hearing Date: December 4, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: December 4, 2024 TRIAL
DATE: NOT SET
CASE: Susan Donjuan Lanzas, et al. v. Helen
Farzad, et al.
CASE NO.: 24STCV00106 
DEMURRER
TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED
COMPLAINT
MOVING PARTY: Defendants Helen Farzad and Kathy Farzad, individually
and as trustees of the HF Family Trust; and Golak LLC
RESPONDING PARTY(S): Plaintiffs Susan
Donjuan Lanzas and Horacio Lanzas
CASE
HISTORY:
·
01/02/24: Complaint filed.
·
06/10/24: First Amended Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a habitability, wrongful eviction, and fraud action. Plaintiffs
allege that they leased a rental unit from Defendants which Defendants falsely
claimed was properly permitted, and which developed numerous habitability
issues. Plaintiffs also allege Defendants evicted Plaintiffs from the unit by
changing the locks without first obtaining a judgment for unlawful detainer.
Defendants demur to the fourth, sixth,
and eighth causes of action in the First Amended Complaint and move to strike
portions of the First Amended Complaint.
TENTATIVE RULING:
Defendants’ Demurrer to the First
Amended Complaint is OVERRULED.
Defendant’s Motion to Strike is
GRANTED only as to Plaintiffs’ request for attorney’s fees in
connection with the third cause of action for negligence.
//
DISCUSSION:
Demurrer to First Amended Complaint
Defendants
demur to the First Amended Complaint with respect to (1) the fourth cause of
action for violation of Civil Code section 789.3; (2) the sixth cause of action
for violation of Civil Code section 1942.5; and (3) the eighth cause of action
for fraud.
Legal Standard
A demurrer 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.) 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.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “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 p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The
Declaration of Munther Tabel in support of the demurrer states that counsel for
the parties exchanged emails on July 12, 2024, at which time counsel for
Plaintiffs categorically stated they would not be amending the pleadings. (Declaration
of Munther Tabel ISO Demurrer ¶¶ 4-5.) The Code of Civil Procedure requires
that the parties meet and confer in person or by telephone before
a demurrer is brought. A bare exchange of email correspondence such as the one
described here in which the parties assert their respective positions is not
the good faith discussion contemplated by the Code. Defendants have not
satisfied their statutory obligations.
Deficient Statement of Grounds for Demurrer
A demurrer “shall
distinctly specify the grounds upon which any of the objections to the
complaint . . . are taken. Unless it does so, it may be disregarded.” (Code
Civ. Proc. § 430.60.) Pursuant to this statute, the Rules of Court require that
each grounds for a demurrer be stated in a separate paragraph. (Cal. Rules of
Court Rule 3.1320(a).)
Here,
Defendants did not separately include a Demurrer independent of their Notice of
Motion and their Memorandum of Points and Authorities, as required by the Code
of Civil Procedure and the Rules of Court. Moreover, to the extent that
Defendants’ Notice of Motion should be construed as their Demurrer, the Notice
challenges each of the three causes of action at issue by stating that each
cause of action “does not state facts sufficient to state a cause of action
against Defendants and is uncertain.” (Notice of Motion p.2:5-6, 9,
11-12.) “[W]here such separate grounds of demurrer are conjoined, the complaint
must be defective on each, or the demurrer must be overruled.” (Wilhoit v.
Cunningham (1891) 87 Cal. 453, 459; see also Kraner v. Halsey (1889)
82 Cal.209, 212; Butler v. Wyman (1933) 128 Cal.App.736, 740.) Thus, if
Defendants’ demurrer for uncertainty fails, the entire Demurrer must be
overruled.
Uncertainty
` Defendants
demur to the fourth, sixth, and eighth causes of action for uncertainty.
Demurrers¿for uncertainty are disfavored,
because discovery can be used for clarification, and they apply only where
defendants cannot reasonably determine what issues or claims are stated.¿(Chen
v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal.,
Inc.¿(1993) 14 Cal.App.4th 612, 616.) If the complaint is sufficiently
comprehensible that Defendant can reasonably respond, the complaint is not
uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14
Cal.App.5th 841, 848 n.3.)
Defendants
do not directly address their claims of uncertainty beyond the bare assertion
that the fourth, sixth, and eighth causes of action are uncertain because they
are not sufficiently pled. “The objection of uncertainty does not go to the
failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3
Cal.App.2d 454, 459.) Moreover, Defendants’ own demurrer plainly demonstrates
that the First Amended Complaint is sufficiently comprehensible that Defendants
could—and did—respond. The First Amended Complaint is not uncertain.
Conclusion
Accordingly,
Defendants’ Demurrer to the First Amended Complaint is OVERRULED.
//
//
Motion to Strike Portions of First Amended Complaint
Defendants
move to strike portions of the First Amended Complaint pertaining to punitive
damages and attorney’s fees.
Legal Standard
The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading. Code Civ.
Proc., § 436(a). The court may also strike all or any part of any pleading not
drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court. Id., § 436(b). The grounds for a motion to strike
are that the pleading has irrelevant, false or improper matter, or has not been
drawn or filed in conformity with laws. Id.§ 436. The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice. Id.§
437. “When the defect which justifies striking a complaint is capable of cure,
the court should allow leave to amend.” Vaccaro v. Kaiman (1998)
63 Cal.App.4th 761, 768. A motion to
strike can be used where the complaint or other pleading has not been drawn or
filed in conformity with applicable rules or court orders. Code Civ.
Proc., § 436(b). This provision is for "the striking of a pleading due to
improprieties in its form or in the procedures pursuant to which it
was filed." Ferraro v. Camarlinghi (2008) 161
Cal.App.4th 509, 528 (emphasis in original).
Meet and Confer
Before filing a motion to strike, the moving
party shall meet and confer in person or by telephone with the party who has
filed the pleading subject to the motion to strike and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 435.5(a).)
However, an insufficient meet and confer process is not grounds to grant or
deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).)
The
Declaration of Munther Tabel in support of the motion states that counsel for
the parties exchanged emails on July 12, 2024,, at which time counsel for
Plaintiffs categorically stated they would not be amending the pleadings.
(Declaration of Munther Tabel ISO Mot. ¶¶ 4-5.) The Code of Civil Procedure
requires that the parties meet and confer in person or by telephone
before a demurrer is brought. A bare exchange of email correspondence such as
the one described here in which the parties assert their respective positions
is not the good faith discussion contemplated by the Code. Defendants
have not satisfied their statutory obligations.
Punitive Damages
Defendants
contend that Plaintiffs have not properly set forth facts supporting a claim
for punitive damages.
Generally, punitive damages
may be awarded only when the trier of fact finds, by clear and convincing
evidence, that the defendant acted with malice, fraud, or oppression. (Civ.
Code, § 3294, subd. (a).) As nonintentional torts support punitive damages when
the defendant's conduct “involves conscious disregard of the rights or safety
of others,” our focus is on malice and oppression. (Gawara v. United States
Brass Corp. (1998) 63 Cal.App.4th 1341, 1361 [74 Cal. Rptr. 2d 663].) As
defined in the punitive damages statute, “[m]alice” encompasses “despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights and safety of others,” and “[o]ppression” means
“despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.” (Civ. Code, § 3294, subd. (c)(1),
(2).) The term “‘despicable,’” though not defined in the statute, is applicable
to “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ ” (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34 Cal. Rptr. 2d
898, 882 P.2d 894], quoting 4 Oxford English Dict. (2d ed. 1989) p. 529.)
Under the statute, “malice
does not require actual intent to harm. [Citation.] Conscious disregard for
the safety of another may be sufficient where the defendant is aware of the
probable dangerous consequences of his or her conduct and he or she willfully
fails to avoid such consequences. [Citation.] Malice may be proved either
expressly through direct evidence or by implication through indirect evidence
from which the jury draws inferences. [Citation.]” (Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1228 [44 Cal. Rptr. 2d 197].)
(Pfeifer v. John Crane, Inc., (2013) 220
Cal.App.4th 1270, 1299 (bold emphasis added).)
Civil Code § 3294(a)
provides:
In an action for the breach
of an obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.”
Civil Code § 3294(c)
defines malice, oppression and fraud:
(1) ‘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.
(2) ‘Oppression’ means despicable
conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person's rights.
(3) ‘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.
(Bold emphasis added.) Subdivision (b) defines
liability for an employer for the malicious, fraudulent, or oppressive conduct
of its employees:
An employer shall not be
liable for damages pursuant to subdivision (a), based upon acts of an employee
of the employer, unless the employer had advance knowledge of the unfitness of
the employee and employed him or her with a conscious disregard of the rights
or safety of others or authorized or ratified the wrongful conduct for which
the damages are awarded or was personally guilty of oppression, fraud, or
malice. With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing agent of the
corporation.
(Civ. Code § 3294(b).) To withstand a motion to
strike punitive damages allegations, the complaint must set forth facts
supporting a claim for punitive damages:
The mere allegation an
intentional tort was committed is not sufficient to warrant an award of
punitive damages. (Citation omitted.) Not only must there be circumstances of
oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim.
(Grieves v. Superior Court (Fox) (1984) 157
Cal.App.3d 159, 166 (emphasis added).)
Defendants
assert that the First Amended Complaint does not sufficiently allege fraud,
malice or oppression, and, moreover, does not allege wrongful conduct on the
part of an officer, director, or managing agent of the LLC Defendant. The Court
disagrees with Defendants’ interpretation. Plaintiffs allege that Defendants
were aware of numerous habitability defects on the subject property, including
mold, lack of heating, and holes in walls, lack of weather protection, exposed
nails, and faulty wiring. (FAC ¶¶ 22-32.) Plaintiffs allege that Defendants
were notified of these defects but failed to make repairs. (FAC ¶¶ 22, 25.)
Plaintiffs also allege that Defendants changed the locks to the gate leading to
the unit, barring Plaintiffs from accessing the unit without first obtaining an
unlawful detainer judgment. (FAC ¶ 38.) Construing the pleadings in the light
most favorable to Plaintiffs, as required on a motion such as this, the Court
cannot say that these allegations are insufficient to support the contention
that Defendants’ conduct was malicious or oppressive.
As
to Defendants’ argument that the First Amended Complaint does not allege conduct
by an officer, director, or managing agent of the LLC, that contention is
plainly belied by the allegation that Helen Farzad, who is an individual
Defendant, is the sole member and owner of Golak, LLC. (FAC ¶ 20.) The Court
therefore does not find that the allegations pertaining to punitive damages are
deficient.
Attorney’s Fees
Defendants
also move to strike portions of the First Amended Complaint pertaining to
attorney’s fees on the grounds that none of the causes of action for which
attorney’s fees are sought provide a basis for attorney’s fees.
With
respect to the first cause of action for breach of implied warranty of
habitability and second cause of action for breach of contract, both claims
sound in the lease agreement attached to the First Amended Complaint as Exhibit
A. Paragraph 24 of that exhibit expressly provides for attorney’s fees not to
exceed $500. (FAC Exh. A. ¶ 24.) Plaintiffs are therefore entitled to seek
attorney’s fees for these claims.
With
respect to the third cause of action for negligence, Plaintiffs concede that the
request for attorney’s fees should be stricken. As there is no dispute on this
point, the Court will strike that request.
With
respect to the fourth, sixth, seventh, and tenth causes of action for violation
of Civil Code sections 789.3, 1942.5, 1942.4 and Los Angeles Municipal Code
section 45.35, respectively, each of those code provisions expressly provide
for a prevailing party to recover attorney’s fees. (Civ. Code §§ 789.3(d);
1942.5(h)-(i); 1942.4(b); L.A.M.C. § 45.35(B).) Plaintiffs are therefore
entitled to seek attorney’s fees for these claims.
Conclusion
Accordingly,
Defendant’s Motion to Strike is GRANTED as to Plaintiffs’ request for
attorney’s fees only in connection with the third cause of action
for negligence.
CONCLUSION:
Accordingly, Defendants’
Demurrer to the First Amended Complaint is OVERRULED.
Defendant’s Motion to Strike is
GRANTED as to Plaintiffs’ request for attorney’s fees only in
connection with the third cause of action for negligence.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: December 4,
2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an order
which modifies the tentative ruling in whole or in part.