Judge Upinder S. Kalra, Case Number: 22STCV21962, Date: 2023-05-24 Tentative Ruling

1. Demurrer
as to the 1^st, 2^nd, 3^rd, 4^th, 5^th,
6^th, and 8^thcauses of action is SUSTAINED, without leave
to amend.

On July 7, 2022, Plaintiff Johann Jauregui (“Plaintiff”)
filed a complaint against Defendants Shoreline Group, LLC and Ata Hassani
(“Defendants.”) The complaint alleged 11 causes of action, including but not
limited to, breach of contract, breach of the warranty of habitability,
negligence, intentional infliction of emotional distress, and fraud. The
complaint alleges that Plaintiff has been living at the Subject Property since
1994, and in 2021, Defendants became the new owners. During Plaintiff’s time at
the subject property, they unknowingly were paying for utilities for the common
spaces until 2014, but has not been reimbursed, despite the meter being fixed
in 2017. In 2021, Plaintiff’s rent was $1,311, but Plaintiff alleges that
Defendants induced and coerced Plaintiff to signing a new lease for $2,000 a
month. Moreover, Defendants have failed to maintain the property in a habitable
condition.

On November 9, 2022, Defendants filed a Demurrer, which was
SUSTAINED, with leave to amend as to the 2^nd, 3^rd, 4^th,
5^th, 6^th, and 7^th, causes of action,
SUSTAINED, without leave to amend as to the 1^st, 10^th,
and 11^th causes of action, and OVERRULED, as to the 8^th
cause of action.

On March 14, 2023, Defendants filed a Demurrer. On May 15,
2023, Defendants filed a Notice of Non-Opposition. As of May 19, 2023, no
opposition has been filed.

A demurrer for sufficiency 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. 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. …. 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 147
Cal.App.4th at 747.)

Prior to filing a demurrer, the
demurring party is required to satisfy their meet and confer obligations
pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied
their meet and confer obligation by submitting a declaration pursuant to Code
of Civ. Proc. §430.41(a)(2) & (3). The Declaration of
Jacob Haghazadeh, attached to the end of the Demurrer, indicates that he made
an attempt at a meet and confer via telephone with Plaintiff’s counsel.
Plaintiff’s counsel could not be reached.

Defendant demurs on the grounds
that the entire FAC. Specifically, the entire FAC is copied and pasted from the
original complaint[1],
taking out the three causes of action this court sustained without leave to
amend, but failed to cure any of the deficiencies.[2]

Plaintiff did not file an
opposition to the original demurrer filed by Defendants on November 8^th,
2022. On the hearing date for the demurrer, Plaintiff did not appear. After the
Court issued its ruling, Plaintiff did not file an amended complaint within 20
days. Defendant filed an ex parte application to dismiss the case. The morning
of the ex parte hearing, Plaintiff filed an FAC.

Defendants makes
the same arguments has before: that this cause of action fails to state facts
to constitute a cause of action. Specifically, defendants argue that the
complaint does not contain factual allegations to support “the legal conclusion
that Defendants engaged in acts that constituted unlawful, unfair, and/or
fraudulent business practices that would violate FEHA” and the current statute.
(Demurrer 4: 6-8.)

California
Business and Professions Code section 17200 prohibits “any unlawful, unfair or
fraudulent business act or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50
Cal.4th 605, 610.) “An unlawful business practice or act is an act or
practice, committed pursuant to business activity, that is at the same time
forbidden by law.” (Klein v. Earth
Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) A violation of other laws
is deemed independently actionable under the UCL. (See Law Offices of Mathew Higbee v. Expungement Assistance Services (2013)
214 Cal.App.4th 544, 554.) “‘Virtually any law—federal, state or local—can
serve as a predicate for a section 17200 action.’” (Id. (quoting Troyk v. Farmers
Group, Inc. (2009) 171 Cal.App.4th 1305, 1335).)

“A plaintiff
alleging unfair business practices under these statutes must state with
reasonable particularity the facts supporting the statutory elements of the
violation.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 619).

Here, the Court finds that the Complaint
fails to provide sufficient factual allegations to support a cause of action
for a § 17200 violation. As stated in Khoury,
there must be reasonable particularity as to the facts supporting the elements
of this violation. However, the complaint contains conclusory allegations that
Defendants harassed Plaintiffs and denied reasonable requests. The complaint
does not provide any further details about the specific discrimination and
harassment that would trigger this cause of action.

After
reviewing the FAC and as indicated above, the FAC is not substantially changed.
Plaintiff has merely copied and pasted the causes of action from the original
complaint. No new allegations have been made.

Defendants
makes the same arguments has before: that this cause of action fails for two
reasons. First, it is superfluous as it is duplicative of the breach of
contract cause of action. Second, this cause of action is barred by the statute
of limitations. Under CCP § 337, an action arising out of contract must be
brought within four years. The original contract was entered in 1994. Moreover,
the cause of action does not allege that Defendants caused injury to Plaintiff
as Defendants became owners in 2021.

“The
covenant of good faith and fair dealing, implied by law in every contract,
exists merely to prevent one contracting party from unfairly frustrating the
other party's right to receive the benefits of the agreement actually made.” (Guz v. Bechtel Nat. Inc. (2000) 24
Cal.4th 317, 349.)

After a
review of the Complaint, the Court finds that the cause of action for breach of
the implied covenant of good faith and fair dealing is insufficient. First, the
basis for the alleged breach is the 1994 lease agreement, with entities that
are not the current Defendants. Specifically, in paragraph 35, Plaintiff argues
that Defendants breached their duty by failing to reimburse Plaintiff from
electricity paid from 1994 to 2021. Again, Defendants did not own this
building, as the Complaint states earlier, until 2021. Thus, there was no
breach by Defendants as to the contract from 1994 with other individuals.
Moreover, the statute of limitations has run as the contract was entered in
1994.

Defendants makes the same
arguments has before: that this cause of action fails to allege sufficient
facts. Specifically, while the Complaint states that Defendants coerced
Plaintiff into signing a new lease agreement for $2,000, the complaint does not
show that “Defendant made a clear and unambiguous promise to Plaintiff with
regard to any rent related matter.” (Demurrer 7: 10-15.) Moreover, Plaintiff
has failed to allege injury because the CA Covid-19 Rent Relief Program covered
the difference in rent.

“The elements of a promissory
estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2)
reliance by the party to whom the promise is made; (3) [the] reliance must be
both reasonable and foreseeable; and (4) the party asserting the estoppel must
be injured by his reliance.’” (Jones v. Wachovia
Bank (2014) 230 Cal.App.4th 935, 945).

After a review of the complaint,
the Court finds that Plaintiff failed to sufficiently allege facts for this
cause of action.“[A] promise is an indispensable element of the doctrine of
promissory estoppel. The cases are uniform in holding that this doctrine cannot
be invoked and must be held inapplicable in the absence of a showing that a
promise had been made upon which the complaining party relied to his
prejudice.” (Garcia v. World Savings, FSB
(2010) 183 Cal.App.4th 1031, 1044.) Moreover, “to be enforceable, a promise
need only be “ ‘definite enough that a court can determine the scope of the
duty[,] and the limits of performance must be sufficiently defined to provide a
rational basis for the assessment of damages.” (Id. at 1045.) Here, while the complaint alleges a promise (to not
raise rent) and reliance on that promise, Plaintiff has failed to plead injury.
The complaint states that Plaintiff has agreed to a monthly rent increase and
then states that “in order to avoid inequity that will result if Defendants are
allowed to raise the rent to $2,000.” Therefore, the facts as alleged do not
indicate that Plaintiff has been injured, only a potential to be injured by a
raise in rent.

Defendant makes the same arguments as before: that Plaintiff
fails to plead with the required specificity for fraud causes of action. The
complaint does not state specific claims or statements that were made by
Defendant to “induce” Plaintiff into signing a new lease.

“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.” (Lazar
v. Superior Court (1996) 12 Cal.4th
631, 638.)

“In California, fraud must be pled specifically; general and
conclusory allegations do not suffice…this particularity requirements
necessitates pleading facts which
show how, when, where, to whom, and by what means the representations were
tenders.” (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.)“[W]hen averments of fraud are made, the circumstances
constituting the alleged fraud must be specific enough to give defendants
notice of the particular misconduct so that they can defend against the charge
and not just deny that they have done anything wrong.” (Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003)
(internal quotations and citations omitted).

After a review of the Complaint, Plaintiff has failed to
allege facts that constitute fraud. AS stated above, fraud requires
specificity, the “who, what, where, when” of the alleged statements. Nowhere in
the complaint does it state when these alleged statements occurred, where they
occurred, or by what means, other than stating they “coerced and induced.” This
is insufficient for a claim for fraud.

Defendant makes similar arguments as
before, that this cause of action fails for two reasons. . First, no exhibits
were attached, yet this cause of action is based on a written agreement. The
complaint does not contain the terms of the agreement or at least a copy of the
agreement. Second, Defendant argues that the acknowledges that Defendant
purchased the Subject Property 201, but states the contract was breached
because the Subject Property has not been maintained since 1994.

“To establish a cause of action for breach
of contract, the plaintiff must plead and prove (1) the existence of the
contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the
defendant’s breach, and (4) resulting damages to the plaintiff.
[Citation.]” (Maxwell v. Dolezal
(2014) 231 Cal.App.4th 93, 97-98.)

After a review of the complaint, Plaintiff
has failed to allege sufficient facts that constitute a breach of contract. The
complaint merely alleges that Defendant promised to honor the lease agreement.
However, it does indicate if the contract was oral or written, and fails to
provide other terms of the agreement. Moreover, the alleged breach of the
agreement in Complaint paragraph 50, the failure to maintain the property, is
also unsupported by facts. The Complaint contains conclusory allegations,
without facts.

Defendant argues that
this cause of action fails because the conditions that are the basis for this
cause of action were present and occurred prior to Defendants’ purchase of the
Subject Property. Moreover, the FAC does not allege that notified the prior landlord
or Defendants in a timely manner.

The elements of a cause
of action for breach of the implied warranty of habitability “are the existence
of a material defective condition affecting the premises' habitability, notice
to the landlord of the condition within a reasonable time after the tenant's
discovery of the condition, the landlord was given a reasonable time to correct
the deficiency, and resulting damages.” (Peviani
v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874,
891 review denied (July 14, 2021)).

After a review of the complaint,
the Court finds that the Complaint does not sufficiently allege a cause of
action for breach of the warranty of habitability. Specifically, Plaintiff has
not pleaded with sufficient facts as to the second element. The Complaint does
not allege when Plaintiff was aware of these conditions and provided notice to
the landlord. In the complaint, one of the allegations that does contain a date
is 1994, where Plaintiff alleges that the carpets and paint have not been
changed since Plaintiff moved in. However, Defendants did not own this property
until September 2021, and the complaint fails to provide any facts indicating
that they informed Defendants in a timely manner after the discovery of the
condition.

Defendants argue that the complaint
fails to plead facts that would support a cause of action for Intentional
Infliction of Emotional Distress. Specifically, the Complaint contains
conclusory allegations. Moreover, Defendant argues that Plaintiff did not
provide facts as to the problems started, but “merely shifts the blame and
burden to Defendants upon their acquisition of the Subject Property.” (Demurrer
12: 26-28.)

Intentional infliction of emotional
distress requires the Plaintiff to show “(1) outrageous conduct by the
defendant; (2) the defendant's intention of causing or reckless disregard of
the probability of causing emotional distress; (3) the plaintiff's suffering
severe or extreme emotional distress; and (4) actual and proximate causation of
the emotional distress by the defendant's outrageous conduct. Conduct, to be ‘
“outrageous” ’ must be so extreme as to exceed all bounds of that usually
tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer,
the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she
believes are so extreme as to exceed all bounds of that usually tolerated in a
civilized community.” (Yau v. Santa
Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160).

Generally, conduct will be found
to be actionable where the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, “Outrageous!” (Ess v. Eskaton
Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)

Although emotional distress may
consist of any highly unpleasant mental reaction such as fright, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment or worry [citation],
to make out a claim, the plaintiff must prove that emotional distress was
severe and not trivial or transient.” (Wong
v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376.) Such distress must be “of such substantial
quality or enduring quality that no reasonable person in civilized society
should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal. 4th 965, 1004.)

The Court finds that while the
conduct may have been outrageous, in the sense that a reasonable person would
not tolerate such living conditions, there are insufficient allegations of
emotional distress. The allegations are conclusory, merely stating that
Plaintiff suffered and continues to suffer from “humiliation, embarrassment,
shock, sever mental and emotional distress, anguish, and indignity.” Allegations
that a defendant’s conduct caused a plaintiff to suffer a heart attack, was
sufficient for an IIED cause of action. (Kiseskey
v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222.)
Similarly, allegations that a plaintiff suffered depression, anxiety, and
physical illness, including vomiting, stomach cramps, and diarrhea, were
adequate for an IIED claim. (Hailey v.
California Physicians' Service (2007) 158 Cal. App. 4th 452, as modified on
denial of reh'g (Jan. 22, 2008).) In
contrast, allegations that a plaintiff lost sleep, had symptoms of anxiety, and
suffered from nervousness, but sought no medical treatment, are not adequate to
state a claim for IIED. (Girard v. Ball (1981) 125 Cal. App. 3d
772.) Here, the symptoms described are not severe enough for an IIED cause of
action.

Leave to amend should
be liberally granted if there is a reasonable possibility an amendment could
cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
The Plaintiff has the
burden of demonstrating that leave to amend should be granted, and that the
defects can be cured by amendment. (“Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his pleading.”
Goodman v. Kennedy (1976) 18 Cal.3d
335, 349). Previously, this Court allowed Plaintiff an opportunity to amend the
Complaint. However, despite this Court giving Plaintiff an opportunity to do
so, and providing the reasoning as to why the original complaint was
insufficient, this Plaintiff merely copied and pasted the original complaint
and made no changes. Moreover, Plaintiff has failed to file an opposition to
explain these deficiencies and the likelihood of curing these deficiencies in
any future pleadings. Therefore, since Plaintiff failed to make the needed
changes, or even attempt to change the FAC in a meaningful way (adding 3
paragraphs to the FAC is not meaningful), the Court finds that leave to amend
is DENIED.

Demurrer as
to the 1^st through 6^th, and 8^th Causes of
Action are SUSTAINED, without leave to amend.

[1]
As a note, the original complaint was misnumbered. However, the Court can tell
that the original complaint was copied and pasted because the numbering is off.
In the FAC, the first cause of action should start on paragraph 31. However, it
starts with paragraph 25. In the Breach of Implied Covenant cause of action,
the original complaint is misnumbered going from the 2^nd cause of
action ending at paragraph 35 to the 3^rd cause of action starting at
33. In the FAC, the same cause of action starts with paragraph 33, but should
be 36, or even at least 30 based on the preceding cause of action.

[2]
Additionally, the Court has compared the original complaint with the FAC. The
Court found only 3 paragraphs where changes were made:

1. Paragraph
27 states: Now the walls around and the support board beneath the water heater
in Plaintiff’s unit have fallen apart due to water damage, and Defendants
refused to fix it. On the original complaint, and through Plaintiff’s request
directly to Defendants, Defendants had notice the supporting board and wall
around the water heater were falling apart, yet Defendants took no steps to
cure their default, instead filed an Unlawful Detainer against Plaintiff, his
wife, and his minor son, all in effort to oppress and intimidate Plaintiff into
relinquishing his rights.

2. Paragraph
28 states: Toxic mold is present throughout Plaintiff’s unit. (The word Toxic
was added to this sentence, which was previously included in paragraph 27.)

3. Paragraph
30: Since the filing of this action Defendants have not made any efforts to
cure their default and make the repairs and maintenance required by law on the
Subject Property.