Judge Upinder S. Kalra, Case Number: 23STCV08667, Date: 2023-12-13 Tentative Ruling

[Related to Lawrence Molbury, et al. v. Robert Babish, et al. 23STCV11717 and Lawrence Molbury, et al. v. Robert Babish, et al. 23STCV09241]

On April 19, 2023, Plaintiffs Lawrence Molbury and Rebecca Molbury (Plaintiffs) filed a Complaint against Defendants Michael Sinkov, Robert Babish, and S M Management LLC (Defendants) with four causes of action for (1) Harassment, (2) Extortion, (3) Negligence, and (4) Discrimination Against the Disabled. (The Sinkov Matter)

On April 26, 2023, Plaintiffs Lawrence Molbury and Rebecca Molbury (Plaintiffs) filed a Complaint against Defendants Domonique Cojone, Katja Seib, and Robert Babish (Defendants) with four causes of action for (1) Dereliction of Duty, (2) Harassment, (3) Discrimination Against Persons with Disabilities, and (4) Inhabitability Violations. (The Cojone Matter)

On May 24, 2023, Plaintiffs Lawrence Molbury and Rebecca Molbury (Plaintiffs) filed a Complaint against Defendants Jake Ellwood Mallot and Robert Babish (Defendants) with five causes of action for (1) Intentional Infliction of Emotional Distress, (2) Negligence, (3) Fraudulent Misrepresentation, (4) Unfair Business Practices, and (5) Conversion. (the Mallot Matter)

On September 6, 2023, Plaintiffs filed a First Amended Complaint (FAC) to the Sinkov Matter which adding eight additional causes of action for: (5) Intentional Infliction of Emotional Distress, (6) Breach of Contract, (7) Invasion of Privacy, (8) Violation of Fair Housing Act, (9) Violation of Tenant Protection Ordinances, (10) Fraud or Misrepresentation, (11) Abuse of Process or Malicious Prosecution, and (12) Unlawful Business Practices.

On September 7, 2023, Plaintiffs filed a First Amended Complaint (FAC) to the Cojone Matter which added two more defendants, S M Management LLC and The Place LLC as well as adding nine additional causes of action for: (5) Intentional Infliction of Emotional Distress, (6) Retaliatory Eviction, (7) Breach of Contract, (8) Violation of the Americans with Disabilities Act, (9) Constructive Eviction, (10) Fraud or Misrepresentation, (11) Private Nuisance, (12) Invasion of Privacy, and (13) Unjust Enrichment.

On September 7, 2023, Plaintiffs filed a First Amended Complaint (FAC) in the Mallot matter which added two more defendants, S M Management LLC and The Place LLC as well as adding six additional causes of action for: (6) Breach of Contract, (7) Harassment, (8) Defamation, (9) Constructive Eviction, (10) Violation of Consumer Protection Laws, and (11) Retaliation.

On October 19, 2023, Plaintiffs filed a Motion for Preliminary Injunction in the Sinkov Matter which the court DENIED.

On October 20, 2023, the court ordered the Complaint stricken in all three matters and granted Plaintiffs 30 days leave to file an amended complaint properly stating the causes of action.

On November 15, 2023, Plaintiffs filed the operative Second Amended Complaint (SAC) to the Sinkov Matter with six causes of action for: (1) Harassment, (2) Retaliation, (3) Discrimination Against the Disabled, (4) Breach of Contract, (5) Violation of the Fair Housing Act, (6) Intentional/Negligent Infliction of Emotional Distress, and (7) Deceitful Business Practices.

On November 16, 2023, Plaintiffs filed the operative Second Amended Complaint (SAC) to the Cojone Matter with six causes of action for: (1) Breach of the Covenant of Habitability, (2) Breach of Contract, (3) Negligence, (4) Harassment, (5) Unlawful Business Practices, and (6) Invasion of Privacy.

On November 17, 2023, Plaintiffs filed the operative Second Amended Complaint (SAC) in the Mallot Matter with eleven causes of action for: (1) Assault, (2) Conversion, (3) Intentional Infliction of Emotional Distress, (4) Harassment, (5) Defamation, (6) Unfair Business Practices, (7) Breach of Contract, (8) Constructive Eviction, (9) Retaliation, (10) Invasion of Privacy, and (11) Disability Discrimination.

On February 20, 2024, Defendants filed this motion. On March 12, 2024, Plaintiffs filed an untimely opposition.

“Code of Civil Procedure section 128, subdivision (a)(5) gives courts the power to order a lawyer's disqualification…[A] trial court's decision concerning a disqualification motion will not be disturbed absent an abuse of discretion…’ The trial court's exercise of this discretion is limited by the applicable legal principles and is subject to reversal when there is no reasonable basis for the action.’” (See DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831-832 (2002).)

“Disqualification motions implicate several important interests, among them are the clients' right to counsel of their choice, the attorney's interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. The ‘paramount’ concern in determining whether counsel should be disqualified is the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. It must be remembered, however, that disqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety.” (Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218-219 (citations and quotations omitted).)

The duty of loyalty is at stake when an attorney’s representation of one client is adverse to the interests of a another current client. (Flatt v. Superior Court (1994) 9Cal.4th 275, 284.) “Disqualification in cases of successive representation is based on the prohibition against ‘employment adverse to a [. . .] former client where, by reason of the representation of the [. . .] former client, the [attorney] has obtained confidential information material to the employment.’” (See H.F. Ahmanson & Company v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1451.)

The scope of the clients’ consent determines whether disqualification is necessary “when the prior representation involves joint clients, and the subsequent action relates to the same matter.” (Zandor Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1294-1295.)

“[C]lients may consent in writing [citation] to continued representation by the conflicted attorney after the attorney discloses ‘the relevant circumstances and … the actual and reasonably foreseeable adverse consequences to the client….” [Citation.] In order for there to be valid consent, clients must indicate that they ‘know of, understand and acknowledge the presence of a conflict of interest….’” (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 429 (citations omitted).)

Plaintiffs move to disqualify Mr. Wilson for the following reasons: (1) his simultaneous representation of all defendants in this matter, (2) his discussion of (unidentified) confidential matters, (3) his alleged perjury, and (4) lack of communication with Plaintiffs.[1] Defendants did not file an opposition.

The court is not persuaded by Plaintiffs’ arguments. First, there is no evidence that Mr. Wilson cannot competently represent the Defendants. Second, Plaintiffs’ evidence (and arguments) show general displeasure with litigating the three pending cases against the same Defendants with the same counsel. In sum, the court does not see a basis to take the drastic action of disqualifying the counsel chosen by Defendants because of Plaintiffs’ perceived deficiencies in counsel’s conduct.

[Related to Lawrence Molbury, et al. v. Robert Babish, et al. 23STCV11717 and Lawrence Molbury, et al. v. Robert Babish, et al. 23STCV09241]

MOVING PARTY: Defendants Dominique Cornejo, Katja Seib, Robert Babish, S M Management LLC, and The Place LLC

1. Demurrer to the Entire SAC for Failure to State Sufficient Facts Constituting a Cause of Action and for Uncertainty.

1. Demurrers to the First Cause of Action is OVERRULED as to Defendant The Place and SUSTAINED as to Defendants Michael Sinkov, Robert Babish, and S M Management, LLC;

2. Demurrers to the Second, Third, Fifth, Sixth, and Seventh Causes of Action are SUSTAINED.

1. Demurrers to the Third Cause of Action is OVERRULED as to Defendant The Place and SUSTAINED as to Defendants Robert Babish, Dominique Cornejo, Katja Seib, and S M Management LLC;

2. Demurrers to the First, Second, Fourth, Fifth, and Sixth Causes of Action are SUSTAINED.

1. Demurrers to the Fourth Causes of Action is OVERRULED as to Defendant The Place and SUSTAINED as to Defendants Robert Babish, Jake Ellwood Mallot, and S M Management LLC.

2. Demurrers to the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Causes of Action are SUSTAINED.

On October 19, 2023, Plaintiffs filed a Motion for Preliminary Injunction in the Sinkov Matter which the court DENIED.

On October 20, 2023, the court ordered the Complaint stricken in all three matters and granted Plaintiffs 30 days leave to file an amended complaint properly stating the causes of action.

On January 5, 2024, Defendants filed the instant demurrer. On February 22, 2024, Defendants filed an Amended Demurrer . On March 4, 2024, Plaintiffs filed an untimely opposition. Defendants’ reply brief was due on or before March 6, 2024. As of March 8, 2024, there is no reply brief filed with the court.

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). Here, Defendants sent a meet and confer letter to Plaintiffs on January 2, 2024. (Wilson Decl. ¶ 2, Exhibit A.) One letter is hardly sufficient meet and confer efforts. However, failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).)

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).)¿

Upon reviewing the SAC, Plaintiffs’ claim for harassment is really a claim for negligence.[1]

The basic elements of a negligence claim are: a duty on the part of the defendant towards the plaintiff; defendant’s breach of that duty; causation; and harm to plaintiff. (Kesner v. Sup. Ct. (Pneumo Abex, LLC) (2016 1 Cal.5th 1132, 1142.)

Here, there are sufficient factual allegations supporting Plaintiffs’ claim for negligence against Defendant LANDLORD. First, Defendant LANDLORD owed Plaintiffs a duty to keep the property in a safe condition, they breached that duty by removing the sensors from the mechanized fence, that removal injured Plaintiff Lawrence Molbury, and he sustained damages. (Sinkov SAC 3:9-14.) However, there are no facts that the remaining defendants owed Plaintiffs a duty or breached any such duties.

Accordingly, the court OVERRULES Defendants’ demurrer to the First Cause of Action as to Defendant The Place and SUSTAINS as to Defendants Michael Sinkov, Robert Babish, and S M Management LLC.

Upon reviewing the SAC, Plaintiffs appear to allege a cause of action for Breach of the Covenant of Quiet Enjoyment.

The implied covenant of quiet enjoyment is breached when there is an eviction, actual or constructive, of the tenant. (Marchese v. Standard Realty & Development Co. (1977) 74 Cal.App.3d 142, 148.) Actual eviction occurs when there is an expulsion or ouster of the tenant by the landlord. (Giraud v. Milovich (1938) 29 Cal.App.2d 543.) Constructive eviction occurs when there is a substantial and material interference with the tenant’s beneficial use and enjoyment of the premises, causing the tenant to vacate. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.) An interference by the landlord amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals following his eviction. Upon surrendering possession of the premises, the tenant is relieved of the obligation to pay rent and may sue for damages, or may plead damages by way of offset in an action brought by the landlord to recover any unpaid rent that accrued prior to surrender. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590.) Alternatively, a tenant may elect to stand upon the lease, remain in possession and sue for breach of contract damages as well as for injunctive relief. (Ibid.) Minor inconveniences and annoyances are not actionable. (Id., at pp. 589-590.)

Here, Plaintiffs have insufficiently alleged a cause of action for Breach of the Covenant of Quiet Enjoyment.[2] First, Plaintiffs allege a slew of conduct by Defendants that does not interfere with Plaintiffs’ possession of the property. (SAC pg. 3:13-4:26.) Second, Plaintiffs apparently remain in possession of the property.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Second Cause of Action.

Under FEHA, the plaintiffs must make a prima facie showing of discrimination in housing accommodations as defined by Gov. Code § 12927(c). Gov. Code § 12955(f) prohibits harassing, evicting or otherwise discriminating in the rental of housing when the dominant purpose is retaliation against a person opposing unlawful housing discrimination under FEHA (among other things). (See also 42 USC § 12203(a).)

Upon reviewing the SAC, Plaintiffs have insufficiently alleged Discrimination Against the Disabled under FEHA. Specifically, while Plaintiffs allege tasteless conduct by Defendants, there are no allegations that the conduct was retaliation for Plaintiffs’ opposing unlawful housing discrimination.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Third Cause of Action.

The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A written contract may be pleaded by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) To plead a contract by its legal effect, a plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Ibid.)¿

Upon reviewing the SAC, while Plaintiffs appear to have sufficiently alleged a claim for breach of contract as to Defendant LANDLORD,[3] their attachments undermine the allegations. Plaintiff alleged to be tenants in good standing, meaning, they performed under the lease. However, as indicated above, Plaintiffs include exhibits indicating they are withholding rent which is a breach under the lease.[4] “Under the doctrine of truthful pleading, the courts ‘will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.’ ” (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) While they may have had a reason for not performing under the lease, Plaintiffs admit through their attachments that they were not performing under the lease. “If the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.)

Accordingly, the court SUSTAINS Defendants’ demurrer to the Seventh Cause of Action as to Defendant The Place and also SUSTAINS Defendants’ demurrer as to Defendants Michael Sinkov, Robert Babish, and S M Management LLC.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Fifth Cause of Action.

Sixth Cause of Action – Intentional/Negligent Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See¿Moncada¿v. West Coast Quartz Corp.¿(2013) 221 Cal.App.4th 768, 780.) To satisfy the element of extreme and outrageous conduct,¿defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Ibid.) (internal citations omitted.)

While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Cochran v. Cochran¿(1998) 65 Cal.App.4th 488, 494.)¿¿Recovery for emotional distress caused by injury to property is permitted in IIED claims. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203-04.) (internal citations omitted.)

A claim for negligent infliction of emotional distress (NIED) requires: (1) a legal duty to use due care (direct victim or bystander), (2) breach of such legal duty, (3) damage or injury (serious emotional distress), and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)

Upon reviewing the SAC, Plaintiffs have not sufficiently alleged a claim for IIED or NIED. As to IIED, the allegations do not rise to “outrageous” conduct. Indeed, the allegations are demanding documentation related to a service animal, delaying requests for accommodations, blocking communication with Plaintiffs, and delaying services related to habitability which, taken in the context of the entire SAC, amount to alleged failure to respond quickly enough to maintenance requests.[5] There are no allegations addressing the NIED claim.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Sixth Cause of Action.

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.) A business practice is unfair when it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." (Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4th 886, 894.) A business practice is unlawful if it violates another law. (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) A business practice is fraudulent if “members of the public are likely to be deceived." (See Wang v. Massey Chevrolet (2002) 97 Cal. App. 4th 856, 871.) “A plaintiff alleging unfair business practices . . . 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.)¿

Upon reviewing the SAC, Plaintiffs failed to sufficiently plead a claim for Unfair Business Practices. Plaintiffs allege conclusory statements of misrepresentation, false statements, and violating various Civil Codes and Regulations. These are not facts.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Fifth Cause of Action.

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)). A violation of a statutory housing standard that affects health and safety is a strong indication of a materially defective condition. (Ibid.)

Here, Plaintiffs have insufficiently alleged a cause of action for breach of the warranty of habitability. First, Plaintiffs allege a slew of problems with the property. (SAC pg. 3:13-4:26.) However, Plaintiffs include exhibits that indicate they blocked Defendants’ ability to remediate the deficiency.

Accordingly, the court SUSTAINS Defendants’ demurrer to the First Cause of Action.

Generally, invasion of privacy requires: (1) a legally protected privacy interest; (2) reasonable expectation of privacy under the circumstances; and (3) defendant’s serious invasion of privacy. Four distinct kinds of activities have been found to violate this privacy protection and give rise to tort liability: (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person’s name or likeness. To prevail on an invasion of privacy claim, the plaintiff must have conducted himself or herself in a manner consistent with an actual expectation of privacy. (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129; Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 213.)

Intrusion upon private affairs requires: (1) the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy; and (2) the intrusion must occur in a manner highly offensive to a reasonable person. (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.)

Upon reviewing the SAC, Plaintiffs have insufficiently alleged a claim for invasion of privacy. Notably, the claimed invasion occurred when the Defendants shared complaints made by Plaintiffs concerning the property. This is not a reasonable expectation of privacy under the circumstances. The other allegations in this cause of action are conclusory.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Sixth Cause of Action.

To prevail on an assault claim, plaintiff must prove: “(1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he [or she] was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; So v. Shin (2013) 212 Cal.App.4th 652, 668-669; Lowry v. Standard Oil Co. of Calif. (1944) 63 Cal.App.2d 1, 6-7.)

Upon reviewing the SAC, Plaintiffs’ claim fails to sufficiently allege assault.[6] In particular, Plaintiffs allege that Defendant Mallot threw a large cup of soda and ice at Plaintiff’s vehicle, but there are no allegations that Plaintiffs believed they would be hit by the soda or that the soda hit anything other than the vehicle. (SAC, pg. 6:26-28.) The court is unaware of authority indicating that apprehension of a chattel sustaining damage constitutes assault.

Accordingly, the court SUSTAINS Defendants’ demurrer to the First Cause of Action.

The elements for a claim of conversion are: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property right; and (3) damages.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 650; Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271.) Intentional destruction or alteration of property may constitute conversion of property. (Martinez v. Robledo (2012) 210 Cal.App.4th 384, 387.) If the interference is less significant than the exercise of complete dominion or control, the proper claim is for trespass to personal property. (See Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401.) Wrongful intent is not required. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1405.)

Upon reviewing the SAC, Plaintiffs’ claim fails to sufficiently allege conversion.[7] Notably, Plaintiffs allege damage to their vehicle by Defendant Mallot’s throwing the soda cup, which is not “complete dominion or control” over the property. (SAC pg. 7:11-13.)

Accordingly, the court SUSTAINS Defendants’ demurrer to the Second Cause of Action.

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.)

Upon reviewing the SAC, Plaintiffs have insufficiently alleged defamation. Notably, there are no statements alleged in the SAC.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Fifth Cause of Action.

The elements of a Disability Discrimination claim in violation of FEHA are: (1) Plaintiff suffers from a disability defined by FEHA, (2) defendant knew or should have known of the disability, (3) accommodating is necessary to provide plaintiff the equal opportunity to use and enjoy the dwelling, and (4) the defendant refused an accommodation. (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592.)

Upon reviewing the SAC, Plaintiffs have insufficiently alleged Disability Discrimination in violation of FEHA. Notably, Plaintiffs fail to allege what the reasonable accommodations were and that Defendants refused such accommodations.[8]

Accordingly, the court SUSTAINS Defendants’ demurrer to the Eleventh 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).

Here, Plaintiffs have had multiple opportunities to amend their claims. The Court wonders how further amendment would cure such deficiencies. Unless Plaintiffs can explain to the court in what manner they can amend the complaints, leave to amend will be denied.

1.Demurrers to the First Cause of Action is OVERRULED as to Defendant The Place and SUSTAINED with leave to amend as to Defendants Michael Sinkov, Robert Babish, and S M Management, LLC;

2.Demurrers to the Second, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action are SUSTAINED with leave to amend.

1.Demurrers to the Third Cause of Action is OVERRULED as to Defendant The Place and SUSTAINED with leave to amend as to Defendants Robert Babish, Dominique Cornejo, Katja Seib, and S M Management LLC;

2.Demurrers to the First, Second, Fourth, Fifth, and Sixth Causes of Action are SUSTAINED with leave to amend.

1.Demurrers to the Fourth Cause of Action is OVERRULED as to Defendant The Place and SUSTAINED with leave to amend as to Defendants Robert Babish, Jake Ellwood Mallot, and S M Management LLC.

2.Demurrers to the First, Second, Third, Fifth, Sixth, Seventh Eighth, Ninth, Tenth, and Eleventh Causes of Action are SUSTAINED with leave to amend.

[1] The court is not bound by the captions or labels of a cause of action in a pleading and the nature and character of a pleading is to be determined from the facts alleged, not the name given by the pleader to the cause of action. Thus, regardless of whether the complaint gives the causes of action a label imbued with personal property law meaning, it is the facts behind the label which govern the nature and character of the primary right sued upon. (Ananda Church of Self-Realization v. Massachusetts Bay Insurance (2002) 95 Cal. App. 4th 1273, 1281.)

[2] Should the court interpret the factual allegations as a Breach of the Implied Warranty of Habitability, that claim would also fail. In particular, Plaintiffs include as exhibits to their SACs correspondence from Plaintiffs indicating they blocked Defendant LANDLORD’s ability to remediate the conditions of which Plaintiffs complain.

[3] Interestingly enough, Plaintiffs label this claim as breach of the implied covenant of quiet enjoyment.

[4]Plaintiffs, otherwise, plead all of the elements for a breach of contract. First, they alleged a month-to-month lease with Defendant LANDLORD. Second, they alleged breach by Defendants for the same slew of behaviors identified in the first cause of action. Third, Plaintiffs allege damages.

[5] Indeed, upon reviewing the exhibits Plaintiffs included with the various SACs, Plaintiffs incessantly sent emails to Defendant LANDLORD.

[6] Even if Plaintiffs did, this cause of action would only apply to Defendant Mallot.

[7] As with the first cause of action, this claim would only apply to Defendant Mallot.

[8] The court cannot provide legal advice to Plaintiffs as requested in the SAC. (SAC pg. 10:7-8.)

[1] Plaintiffs separate these claims into six items, but there is some overlap.