Judge Upinder S. Kalra, Case Number: 23STCV29354, Date: 2024-12-03 Tentative Ruling

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MOVING PARTY: Defendants Fox Holdings, LLC, Tal Hassid, Alona Hassid (Fox Defendants); Defendant Nathalie Lara

1. Demurrer by the Fox Defendants to the First and Second Causes of Action for failure to state facts sufficient to constitute a cause of action;

2. Demurrer by Defendant Lara to the entire Complaint for failing to state sufficient facts sufficient to constitute a claim.

On December 1, 2023, Plaintiff Orlando Garcia (Plaintiff) filed a Verified Complaint against Defendants Link Investment Group, LLC, Fox Holdings, LLC, Tal Hassid, Alona Hassid, and Nathalie Lara (Defendants) with nine causes of action for: (1) Wrongful Eviction; (2) Violation of Civil Code 1940.2; (3) Negligent Hiring, Training, Supervision; (4) Negligence; (5) Unfair Business Practices; (6) Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional Distress; (8) Violation of County of Los Angeles Rent Stabilization Ordinance (RSPTO); (9) Elder Abuse – Physical and Emotional Abuse (Cal. WIC Sec. 15600, et seq.).

According to the Complaint, Plaintiff leased and occupied a two bedroom dwelling located at 1631 Nadeau St., Los Angeles, CA 90001 (the Property). Plaintiff alleges Defendants wrongfully evicted him from the Property.

On October 24, 2024, Plaintiff filed what is labeled an opposition to the Fox Demurrer that indicated Plaintiff had passed away.

On November 6, 2024, the court held a hearing on the Fox Defendants’ demurrer whereby counsel conferred with the court regarding status of a personal representative for the deceased Plaintiff.

On November 21, 2024, Plaintiff filed untimely oppositions to the Fox Defendants’ and Defendant Lara’s demurrers. Reply briefs were due on or before November 22, 2024. As of November 26, 2024, the court has not received reply briefs.

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.)

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.)¿¿

The court grants the Fox Defendants’ request for judicial notice. (Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

The Fox Defendants contend that this claim fails because a landlord cannot be held liable for wrongful eviction when they recover possession pursuant to orderly judicial process. Plaintiff argues their claim survives because they alleged Defendants used fraud to evict Plaintiff by providing a deficient proof of service on the court in the unlawful detainer matter.[2]

Plaintiff’s claim for wrongful eviction is premised on violation of Civ. Code § 789.3. That section prohibits landlords from interrupting or terminating utility services with the intent to terminate a tenancy. (Civ. Code § 789.3(a).) It also prohibits landlords from intending to terminate a tenancy by: (1) “[p]reventing the tenant from gaining reasonable access to the property by changing the locks . . .”; (2) removing “outside doors or windows”; or (3) removing “from the premises the tenant’s personal property . . . .” (Id. at subd. (b).) However, that section “shall [not] be construed to prevent the lawful eviction of a tenant by appropriate legal authorities . . . .” (Ibid.)

Here, Plaintiff’s claim fails because they allege the Sheriff locked them out of the Property after an Unlawful Detainer action in Defendants’ favor. (Complaint ¶¶ 24, 25, 28, 52, 56.) As plead, this is not a violation of Civ. Code § 789.3.

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

The Fox Defendants contend that this claim fails because executing on a valid writ of possession is not a violation of Civ. Code § 1940.2. Plaintiff argues this claim survives because the writ of possession was fraudulently obtained. However, Plaintiff provides no authority supporting this argument.

A landlord shall not influence a tenant to vacate a dwelling by the following acts:

“(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code.

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.

Here, Plaintiff’s claim against the Fox Defendants is not for any of the aforementioned conduct. Instead, as discussed above, the misconduct is pursuing an Unlawful Detainer action. (Complaint ¶¶ 24, 25, 28, 52, 56.)

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

Defendant Lara contends that all of the claims against her fail because Plaintiff has not alleged that she is the landlord and that she cannot improperly oversee herself as an agent. Plaintiff does not dispute that Defendant Lara is an agent but argues, without authority, that she is nonetheless liable to Plaintiff.

Here, Plaintiff has insufficiently alleged any claim against Defendant Lara in her individual capacity. The court rejects Plaintiff’s arguments and will not research the merits of their claim for them.

Accordingly, the court SUSTAINS Defendant Lara’s demurrer to the Complaint in its entirety.

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 burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Here, Plaintiff did not request leave to amend. The court is inclined to deny leave to amend because Plaintiff is deceased and counsel has not indicated who, if anyone, will succeed his claims.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment as to Defendant Reddit, Inc. and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case.

[1] The court notes that Plaintiff is deceased according to Counsel. The oppositions are purportedly filed by Plaintiff.

[2] Plaintiff cites no authority supporting this argument.