Judge: Virginia Keeny, Case: 22VECV00051, Date: 2023-05-05 Tentative Ruling

Case Number: 22VECV00051    Hearing Date: May 5, 2023    Dept: W

ROBERT ECHEVARRIA V. ALLEN GEHRKE, ET AL.

MOTION FOR JUDGMENT ON THE PLEADINGS

Date of Hearing:        May 5, 2023                                       Trial Date:       None set.  

Department:              W                                                        Case No:         22VECV00051

Moving Party:            Defendants Paul Rahbar and Jeffrey Gehrke

Responding Party:     No opposition

Meet and Confer:      Yes. (Weston Decl. ¶2.)

FACTUAL BACKGROUND

This is a wrongful eviction case. On January 12, 2022, Plaintiff Robert Echevarria filed their complaint against Defendants Pazargad Rahbar (“Paul”), Ira Coleman, Allen Gehrke and Matt Thompson. Plaintiff filed a first amended complaint on September 2, 2022, alleging breach of contract, trespass, invasion of privacy, defamation, assault, conversion, intentional infliction of emotional distress, landlord harassment, violation of L.A. Tenant Anti-Harassment Ordinance, wrongful eviction, forcible detainer, trespass to chattels and malicious prosecution. Plaintiff alleges he entered into a residential lease agreement with owners Defendants Rahbar and Coleman; however, Plaintiff alleges the Defendants forcibly removed Plaintiff and his belongings from the premises. During this incident, Plaintiff grabbed a revolver and fired a shot, for which Rahbar called the police.

On February 7, 2023, Plaintiff dismissed Matthew Thompson. Defendants Paul Rahbar and Jeffrey Gehrke now move for judgment on the pleadings as to the third, fourth, sixth, eighth, ninth, tenth, and eleventh causes of action.

TENTATIVE RULING:

Defendants Paul Rahbar and Jeffrey Gehrke’s Motion for Judgment on the Pleadings is GRANTED.

DISCUSSION

Defendants Paul Rahbar and Jeffrey Gehrke move this court for an order granting the Motion for Judgment on the Pleadings without leave to amend on the grounds the third, fourth, sixth, eighth, ninth, tenth, and eleventh causes of action are barred by the statute of limitations and Plaintiff has not stated a cause of action for conversion.

It is well established in California that either prior to trial or at the trial the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense.  (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; See also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.].)  

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.)

Defendants contend the alleged occurrences transpired between November 2019 and January 12, 2020. However, even after accounting for the emergency Covid tolling, six of the causes of action are subject to a one-year statute of limitations. Emergency Rule 9 states, “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” The Advisory Committee Comments to the rule also indicate the rule was “intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action … The rule also applies to statutes of limitations on filing of causes of action in court found in codes other than the Code of Civil Procedure, including the limitations on causes of action found in, for example, the Family Code and Probate Code.” Essentially, statutes of limitations that exceed 180 days were tolled from April 6, 2020, until October 1, 2020, a period of 178 days.

As noted above, the alleged incident occurred no later than January 12, 2020. As a result, the statute of limitations for the fourth,  eighth, ninth, and eleventh causes of action ran January 12, 2021. (See CCP §§340), as each has a one year statute of limitations.  Adding 178 days to January 12, 2021, Emergency Rule 9 pushed the last day to file to July 9, 2021. Plaintiff did not file their complaint until January 12, 2022. Because the defect appears on the face of the pleadings, Plaintiff cannot state a claim for the fourth, eighth, ninth, and eleventh causes of action.

As for the tenth cause of action for wrongful eviction, the court notes there the statute of limitations depends on the specific facts that give rise to the claim. Regardless, “’[a]n essential element of a wrongful eviction claim is that the tenant has vacated the premises. [Citations.]’ (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 900, 141 Cal.Rptr.3d 62.)” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 293.) Plaintiff admits he is paying rent directly to the owner of the premises, Ira, under a month-to-month lease agreement. (FAC ¶6.)   Therefore, the wrongful eviction claim fails on its face.

As for Plaintiff’s conversion claim, Defendants argue Plaintiff has not alleged substantial interference with Plaintiff’s property personal property. “The tort of conversion applies to personal property, not real property.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295.)  As alleged, it is not clear what personal property Defendants purportedly converted.  

Accordingly, Defendants’ motion for judgment on the pleadings as to the fourth,  eighth, ninth, tenth, and eleventh causes of action is GRANTED WITHOUT LEAVE TO AMEND. The court grants Defendants’ motion for judgment on the pleadings as to the sixth cause of action with leave to amend.

As for the third cause of action for invasion of privacy, because the statute of limitations is two years, as with any personal injury action, the motion must be overruled.