Judge Upinder S. Kalra, Case Number: 22STCV39334, Date: 2023-05-25 Tentative Ruling

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On December 19, 2022, Plaintiffs Andrew Stafford and Alexa Greger (Plaintiffs) filed a Complaint against Defendant Christine Fadley (Defendant) with nine causes of action for: (1) Private Nuisance, (2) Intentional Influence to Vacate, (3) Termination of Estate, Civil Code § 789.3 (4) Business and Professions Code §§ 17200, (5) Slander/Defamation, (6) Breach of Covenant of Quiet Enjoyment, (7) Breach of Implied Covenant of Good Faith and Fair Dealing, (8) Violation of California Civil Code § 1946.2, and (9) Intentional Infliction of Emotional Distress. Plaintiffs allege that they were tenants of the Subject Property, which was owned and/or managed by Defendant. During Plaintiffs time at the Subject Property, Defendant locked the gate to prevent Plaintiffs from entering. Additionally, Defendant turned off electrical power and glued the locks shut to further prevent Plaintiffs from entering the Subject Property. Defendant also attempted to increase Plaintiffs’ rent by 37%, increasing it from $2,700 to $2,700, or stating that Plaintiffs have to vacate.

On May 25, 2023, the court SUSTAINED Defendant’s Demurrer as to the 5th Cause of Action, with leave to amend, and OVERRULED as to the remaining causes of action. The court also DENIED Defendant’s Motion to Strike.

On June 12, 2023, Plaintiffs filed a First Amended Complaint (FAC) with the same causes of action as the Complaint alleged in the caption, however, the Eighth Cause of Action states it is for Conversion of Private Property.

On July 31, 2023, Defendant filed the instant demurrer and motion to strike. On September 21, 2023, Plaintiffs filed an opposition to the demurrer and motion to strike. On November 3, 2023, Defendant filed replies.

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.)

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)

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. (CCP § 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 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.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.)

Here, the Declaration of Doron F. Eghbali submitted with the demurrer indicates that Defendant sent Plaintiffs counsel a meet and confer letter on June 26, 2023. (Eghbali Decl. ¶ 8.) Plaintiffs counsel did not respond. (Eghbali Decl. ¶ 11.) However, one letter does not evidence sufficient meet and confer efforts. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

Defendant contends that the court should strike Plaintiffs’ FAC because it was filed outside of the timeframe previously ordered by the court. Plaintiffs argue that the court should not strike the FAC because it was untimely due to counsel’s calendaring error and it was only filed eight days late.

“The court may dismiss the complaint as to that defendant when: . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (CCP § 581(f)(2).)

Here, the court will not strike the FAC because, even though it was filed after the deadline imposed by the court, the court “may” dismiss rather than “must” dismiss, Defendant did not move to strike the FAC before it was filed, Defendant extended their time to respond to the FAC via automatic declaration, and Plaintiffs’ counsel admits to a calendaring error.[1] (See, e.g., Brown v. Brown (1959) 169 Cal.App.2d 54; see also, Cal. Rules of Court, Rule 3.1320(j) [providing for 10 days to answer or otherwise plead to the complaint after a demurrer is overruled or sustained.])

Defendant contends that this cause of action fails because the statements in question are opinions or expressions of personal belief rather than verifiable facts, that the statements do not meet the requirements for slander per se, and that the statements as alleged lack specificity. Plaintiff argues that the FAC asserts slanderous allegations of criminal activity which is also slanderous per se.

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its consequence, causes action damage.

“Publication means a communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

To constitute libel, a “ ‘statement must contain a provable falsehood . . .’” and to this end, “ ‘courts distinguish between statements of fact and statements of opinion for purposes of defamation liability.’” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695.) “’[A]n opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion’ but ‘[a]n opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true.’ . . . . To decide whether a statement expresses or implies a provable false assertion of fact, courts use a totality of the circumstances test. [citation.] ‘[A] court must put itself in the place of an average reader and determine the natural and probably effect of the statement . . . .’ [citation.] Thus, a court considers both the language of the statement and the context in which it is made. [citation.] ‘The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeting by the publication.’” (Bently Rsr. LP v. Papaliolios (2013) 218 Cal.App.4th 418, 427.)

Under the totality of the circumstances as alleged in the FAC, the court disagrees with Defendant that the FAC fails to sufficiently allege defamation. First, the FAC alleges that Defendant called Plaintiffs “thieves” and “spread rumors to other neighbors about how ‘bad these tenants’ were and about how they ‘stole’ from the Defendant.”[3] (FAC ¶ 78.) Unlike the opinion that Plaintiff Stafford is a “bad guy,” a “deadbeat person,” and was not entitled to the property, claiming to neighbors that Plaintiffs stole from her is not an opinion, but a provable fact – it either did or did not happen.

Accordingly, the court OVERRULES Defendant’s demurrer to the fifth cause of action.

Defendant demurrers to these causes of action because they were improperly added and insufficiently pled.

“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint . . . on grounds that could have been raised by demurrer to the earlier version of the complaint . . . .” (CCP § 430.41(b).)

Upon review of the FAC, and comparing it to the original Complaint, the court disagrees with Defendant. First, the Complaint also listed Violation of California Civil Code § 1946.2 as the Eighth Cause of Action in the caption and then stated “Conversion of Private Property” in the body (Compare Compl. at p. 27 with FAC at p. 28.) The Complaint states the Ninth Cause of Action for Intentional Infliction of Emotional Distress. (Compare Compl. at p. 29 with FAC at p. 30.) The court also notes that Defendant did not previously demurrer to the Eighth or Ninth Causes of Action. Because Defendant could have raised these grounds when they filed the earlier demurrer, they are barred from doing so now. (CCP § 430.41(b).)

Accordingly, the court OVERRULES Defendant’s demurrer to the Eighth and Ninth Causes of Action.

11. The Complaint in its entirety as related to the fifth cause of action for Slander/Defamation;

12. The Complaint in its entirety as related to the eighth cause of action of Breach of Conversion of Private Property;

13. The Complaint in its entirety as related to the ninth cause of action for Breach of Intentional Infliction of Emotional Distress;

The court has already addressed Defendant’s two contentions in the above demurrer: addition of the Eighth and Ninth Causes of Action and untimeliness of the FAC.

As to Punitive damages and attorney fees, the initial Motion does not discuss the basis for the request. In any event, the Court previously overruled the Motion to Strike as to these allegations in an Order entered on May 25, 2023.[4]

As these are the only arguments Defendant puts forth, the court DENIES Defendant’s motion to strike in its entirety.

[1] The court notes that CCP § 473 does not apply to the instant dispute because there is no judgment or order that the court need set aside due to mistake or neglect. Instead, the dispute is whether the court may consider the FAC on its merits or if it should dismiss the FAC because Plaintiffs filed it eight days late.

[2] In reply, Defendant argues that they were never served with the opposition for either the demurrer or motion to strike. However, the proof of service attached to the end of the memorandum in opposition states that on September 20, 2023, Plaintiffs’ counsel served the documents to Defendant’s counsel via overnight mail. The address on the proof of service matches the address Defendant’s counsel uses on its caption. Also, Defendant’s timely reply brief and direct argument against points Plaintiffs made in their opposition weigh against finding prejudice, as Defendant asks the court to do. Accordingly, the court disregards this argument.

[3] The court notes that the other allegations of calling Plaintiff Stafford a “bad guy” is unchanged from the original Complaint.

[4]In their Reply, as to attorney fees, counsel indicates that it is based upon their Demurrer to the fifth cause of action: violation of Penal Code § 496. This is puzzling, to say the least, since the fifth cause of action alleges Slander/Defamation and not a violation of Penal Code § 496. Moreover, the Court previously denied the motion pointing out that attorney fees are statutorily available for a successful prosecution of the third cause of action, alleging a violation of Civil Code § 789.3.