Judge: Theresa M. Traber, Case: 24STCV13827, Date: 2025-03-19 Tentative Ruling

Case Number: 24STCV13827    Hearing Date: March 19, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 19, 2025                      TRIAL DATE: NOT SET

CASE:                         Tara Rogachefsky, et al. v. SM 10000 Property, LLC

CASE NO.:                 24STCV13827           

DEMURRER TO COMPLAINT

MOVING PARTY:               Defendant SM 10000 Property, LLC

RESPONDING PARTY(S): Plaintiffs Tara and Richard Rogachefsky

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a habitability defect action that was filed on June 3, 2024. Plaintiffs leased a unit from Defendant which they allege had insufficient ventilation and water infiltration.

Defendant demurs to portions of the Complaint.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend as to the fourth cause of action and otherwise OVERRULED.

            Plaintiff shall have 30 days leave to amend the Complaint.

DISCUSSION:

Defendant demurs to portions of the Complaint.

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 Thomas Olsen in support of the Demurrer states that counsel for the parties met and conferred on July 12, 2024, but could not reach an agreement on the matters raised in this demurrer. (Declaration of Thomas F. Olsen ISO Dem. ¶ 2.) The declaration does not specify the method of conference, and therefore does not demonstrate compliance with the statutory meet-and-confer obligation.

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, Defendant’s Statement of Grounds for the Demurrer challenges the first cause of action for negligence and third cause of action for breach of lease on the grounds that those causes of action “fail[] to state facts sufficient to constitute a cause of action and [are] uncertain.” (Demurrer p. 3:1-5.) “[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 the demurrer for uncertainty is deficient as to these causes of action, the demurrer must be overruled.

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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.)

Defendant does not address the purported uncertainty of the pleadings beyond the bare assertion that they are so, instead arguing the merits of the various causes of action. 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, Defendant’s own demurrer plainly demonstrates that the Complaint is sufficiently comprehensible that Defendant could—and did—respond. The first and third causes of action in the Complaint are not uncertain.

            Accordingly, Defendant’s Demurrer to the first and third causes of action is OVERRULED.

Fourth Cause of Action: Violation of Los Angeles Municipal Code section 45.33

            Defendant demurs to the fourth cause of action for violation of Los Angeles Municipal Code section 45.33 for failure to state facts sufficient to constitute a cause of action. Defendant’s principal argument with respect to this claim is that Plaintiffs do not have standing to bring this suit under recent controlling authority construing the authorizing provision in the Government Code.

            Plaintiffs bring this cause of action under the City of Los Angeles Tenant Anti-Harassment Ordinance codified at Los Angeles Municipal  Code sections 45.30 et seq. Section 45.33 prohibits a landlord from engaging in “willful, reckless, or grossly negligent conduct,” directed at a specific tenant which causes the tenant detriment or harm and provides a non-exhaustive list of examples of such conduct. (L.A. Mun. Code § 45.33.) Section 45.35 subdivision (a) purports to create a private right of action for violation of the Ordinance, stating:

An aggrieved tenant under this article, the City of Los Angeles, or any person, organization, or entity who will fairly and adequately represent the interests of an aggrieved tenant(s) under this article, may institute civil proceedings as provided by law, against any landlord violating any of the provisions of this article and any person who aids, facilitates, and/or incites another to violate the provisions of this article, regardless of whether the rental unit remain occupied or has been vacated due to harassment.

(Id. § 45.35(a).) Defendant asserts, without explanation, that this ordinance is authorized and governed by Government Code section 36900 subdivision (a), which states that “[v]iolation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” (Gov. Code § 36900 (a).) According to Defendant, this statute does not create a private right of action under the express holding of the recent opinion Cohen v. Superior Court, which overruled the contrary Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599. (Cohen v. Superior Court (2025) 102 Cal.App.5th 706, 727 rev. granted Sept. 18, 2024.) As Cohen is under review by the California Supreme Court, it is of persuasive value only. (Cal. Rules of Court Rule 8.1105; 8.1115.) Moreover, close reading of Cohen reveals, as Plaintiffs contend in opposition, that Cohen was concerned with municipal code sections which did not contain a provision expressly creating a private right of action. (See Cohen, supra, 102 Cal.App.5th at 713; L.A. Mun. Code § 12.22; 62.169.) While Defendant argues in response that section 45.35 is immaterial because Government Code section 36900 is the authorizing statute, Defendant does not justify this conclusion by resort to either the text of the ordinance (which is silent on the matter) or any supporting materials which would clarify this issue. A bare conclusion is not sufficient to support Defendant’s challenge to this ordinance.

            In the alternative, however, Defendant offers the more persuasive argument that the Complaint fails to allege compliance with the written notice provision of the Ordinance. Subdivision (f) of section 45.35 states that a civil action for violation of the ordinance may only be commenced “after the tenant or any other person provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.” (L.A. Mun. Code § 45.35(f).) There is no waiting period if the conduct is “intentional and demonstrates a willful disregard for the comfort, safety or well-being of the tenant(s).” (Id.) Defendant argues that the Complaint fails to allege that written notice was given as specified in the ordinance. In response, Plaintiffs point to multiple allegations that Defendant had been repeatedly informed of the issues in Plaintiff’s rental unit. (See Complaint ¶¶ 7, 9, 11-12, 15-16, 26.) However, as Defendant states in reply, these allegations do not specify the manner of notice given, and therefore do not demonstrate compliance with the written notice provision as currently set forth. In that respect, the fourth cause of action is not adequately pled.

            Accordingly, Defendant’s demurrer to the fourth cause of action is SUSTAINED.

Leave to Amend

            When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate how they can amend their pleadings to state their claims against a defendant.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

            Plaintiffs have not specified how the Complaint might be amended to cure the deficiencies identified herein. However, as the primary defect in the fourth cause of action is the failure to specify whether the alleged notice of the habitability issues was given to Defendant in writing, the means of curing the deficiency is readily apparent. The Court will therefore exercise its discretion to permit Plaintiffs to amend their pleadings as to the fourth cause of action.

CONCLUSION:

            Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend as to the fourth cause of action and otherwise OVERRULED.

            Plaintiff shall have 30 days leave to amend the Complaint.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 19, 2025                                  ___________________________________

                                                                                    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.