Judge Upinder S. Kalra, Case Number: 23STCV11611, Date: 2024-01-05 Tentative Ruling

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1. Demurrer to the entire Cross-Complaint for failure to state facts sufficient and uncertainty.

On May 23, 2023, Plaintiff Archie Donovan (Plaintiff) filed a Complaint against Defendant Christopher Spencer (Defendant) with one cause of action for [violation] of Civil Code Sec. 1950.5.

According to the Complaint, Plaintiff was a tenant at property located at 1489 Stebbins Terrance, Los Angeles, California 90069 (the Property) which Defendant owned and/or operated as the onsite manager. Plaintiff alleges that he paid a security deposit of $30,000. Plaintiff vacated the Property on April 14, 2023 and Defendant mailed an itemized statement deducting the entire security deposit without evidence or legal support.

On August 7, 2023, Defendant filed an Answer and a Cross-Complaint against Plaintiff with three causes of action for: (1) Breach of Contract, (2) Trespass, and (3) Conversion.

According to the Cross-Complaint, the parties disputed the habitability of the Property during Plaintiff/Cross-Defendant’s tenancy, resulting in a prior lawsuit that reached a settlement on March 21, 2023.[1] Defendant/Cross-Complainant alleges that Plaintiff/Cross-Defendant violated the settlement agreement by trespassing onto the Property, destroying furniture, rummaging, ransacking the Property, and stealing various items.

On September 7, 2023, Plaintiff/Cross-Defendant filed a Declaration In Support of Automatic Extension.

On October 6, 2023, Plaintiff/Cross-Defendant filed a Demurrer to the Cross-Complaint.

Plaintiff/Cross-Defendant’s reply brief was due on or before December 28, 2023. As of January 2, 2024, no reply brief 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.)¿

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).)

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

According to the Declaration of David R. Greene, the parties met and conferred via telephone on September 15, 2023. (Greene Decl. ¶ 3.) The parties could not reach an agreement. (Ibid.)

As a threshold matter, the court declines to develop Plaintiff/Cross-Defendant’s argument that the Cross-Complaint is uncertain. “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) Here, aside from the notice of demurrer, Plaintiff/Cross-Defendant does not develop his argument that the Cross-Complaint is uncertain.

Plaintiff/Cross-Defendant contends that this cause of action is premised on an agreement that was already litigated and settled. Defendant/Cross-Complainant argues he sufficiently pled breach of contract.

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 Cross-Complaint, Defendant/Cross-Complainant has sufficiently alleged a cause of action for breach of contract. First, Defendant/Cross-Complainant attached a copy of the Settlement Agreement as Exhibit 2 to the Cross-Complaint. (Cross-Compl. ¶ 15, Exhibit 2.) Second, Defendant/Cross-Complainant alleges to have performed or have his performance excused due to Plaintiff/Cross-Defendant’s breach. (Cross-Compl. ¶ 16.) Third, Defendant/Cross-Complainant alleges Plaintiff/Cross-Defendant breached by destroying furniture, rummaging, and ransacking the Property, damaged the kitchen island, damaged the interior and exterior of the household causing damage to the ceiling, floors and walls as well as stealing various items. (Cross-Compl. ¶ 17, 18.) Finally, Defendant/Cross-Complainant alleges to have suffered damages in the amount of no less than $31,432.77 due to Plaintiff/Cross-Defendant’s breach.

Accordingly, the court OVERRULES Plaintiff/Cross-Defendant’s demurrer to the First Cause of Action.

Plaintiff/Cross-Defendant contends that this cause of action fails to allege when the trespass allegedly occurred. Defendant/Cross-Complainant argues he alleged Plaintiff/Cross-Defendant entered the Property after April 15, 2023 and the trespass was a substantial factor in causing the harm.

The elements of a trespass claim are: “(1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262; Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 90-91.)

Upon reviewing the Cross-Complaint, Defendant/Cross-Complainant has sufficiently alleged a cause of action for trespass. First, Defendant/Cross-Complainant owned the Property. (Cross-Compl. ¶ 21.) Second, Plaintiff/Cross-Defendant intentionally entered the Property after the April 15, 2023 vacate date. (Cross-Compl. ¶ 22.) Third, Plaintiff/Cross-Defendant did not have permission to enter the Property. (Cross-Compl. ¶ 23.) Fourth, the entry caused harm to Defendant/Cross-Complainant’s property – including damage to the ceiling, floors, and walls of the structure. (Cross-Compl. ¶¶ 17, 25.) Finally, Plaintiff/Cross-Defendant’s alleged conduct was a substantial factor in causing the harm because he is alleged to have done the harm. (Ibid.) The court otherwise rejects Plaintiff/Cross-Defendant’s argument about failure to allege the time of the trespass for two reasons: (1) it is alleged to have occurred after the April 15, 2023 vacate date; and (2) Plaintiff/Cross-Defendant provided no authority indicating the date of trespass is an element of trespass.[2]

Accordingly, the court OVERRULES Plaintiff/Cross-Defendant’s demurrer to the Second Cause of Action.

Plaintiff/Cross-Defendant provides legal standards for conversion but does not actually argue how this cause of action is deficient. Defendant/Cross-Complainant argues he sufficiently pled this cause of action and can provide an itemized list of property if needed.

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 Cross-Complaint, Defendant/Cross-Complainant has sufficiently alleged a cause of action for conversion. First, Defendant/Cross-Complainant alleges ownership of the Property (and impliedly the contents of the Property). (Cross-Compl. ¶¶ 10, 28.) Second, Plaintiff/Cross-Defendant intentionally took possession of kitchenware, furniture, bath and bedding accessories, and other personal belongings and prevented Defendant/Cross-Complainant’s access to these items. (Cross-Compl. ¶ 29.) Finally, Defendant/Cross-Complainant alleges damages of at least $31,432.77 as a result. (Cross-Compl. ¶ 31.)

Accordingly, the court OVERRULES Plaintiff/Cross-Defendant’s demurrer to the Third Cause of Action.

[1] Both parties failed to file a Notice of Related Cases in 23STCV03905 and 23STCV03997.

[2] Plaintiff/Cross-Defendant’s reliance on Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1 is misplaced. There, the trespass discussion turned on when a consensual entry turned into nonconsensual entry. Here, the alleged entry was always nonconsensual.