Judge: Virginia Keeny, Case: 24STCV10609, Date: 2025-02-13 Tentative Ruling

Case Number: 24STCV10609    Hearing Date: February 13, 2025    Dept: 45

KIEHL V. BIRNBAUM, ET AL.

DEMURRER TO COMPLAINT

Date of Hearing:          February 13, 2025                   Trial Date:       N/A

Department:               45                                            Case No.:         24STCV10609

Moving Party:             Defendants George Birnbaum and Annie Melloul

Responding Party:       Plaintiff Jennifer Kiehl

BACKGROUND

This is a landlord-tenant dispute. Plaintiff Jennifer Kiehl (“Plaintiff”) sued defendants George Birnbaum (“Birnbaum”), Annie Melloul (“Melloul”), and 825 South Sherbourne LLC aka 825 S. Sherbourne LLC (“Sherbourne LLC” or “the LLC”) on April 29, 2024, asserting claims for:

            1. Breach of Contract,

            2. Avoidance of Contract,

            3. Unfair Competition,

            4. False Advertising,

5. Breach of the Implied Warranty of Habitability,

            6. Restitution based on Quasi-Contract/Unjust Enrichment,

            7. Breach of the Implied Covenant of Good Faith and Fair Dealing,

            8. Fraud/Concealment,

            9. Fraud/Intentional Misrepresentation,

10. Breach of the Implied Covenant of Quiet Enjoyment,

            11. Negligence,

            12. Intentional Infliction of Emotional Distress,

            13. Negligent Infliction of Emotional Distress, and

            14. Civil Harassment (Civ. Code § 1940.2).

Plaintiff asserts all her causes of action against Birnbaum and Sherbourne LLC. Of those, she also asserts the third, fourth, eighth, ninth, and eleventh against Melloul. This leaves the first second, fifth, sixth, seventh, tenth, twelfth, thirteenth, and fourteen asserted against Birnbaum and the LLC only.

As alleged in Plaintiff’s complaint and accepted as true upon demurrer:

Plaintiff rented a residential property located at 825 S. Sherbourne Drive, Los Angeles, Unit #100 (“the Property”), from defendant Sherbourne LLC, its owner. The Property was not registered for residential rental with the proper authorities. It was also not maintained in habitable condition. When Plaintiff attempted to assert her rights as a tenant, Birnbaum and/or Melloul (“the Individual Defendants”) harassed her to prevent her from doing so. Plaintiff alleges upon information and belief that “[825 Sherbourne] and Mr. Birnbaum share a unity of interest such that a separateness of the LLC has ceased to exist and recognition of the individuality of the LLC would promote injustice.” (Compl., ¶ 4.) Melloul signed Plaintiff’s lease as agent for Sherbourne LLC. (Id., ¶ 9.)

On June 6, 2024, Birnbaum and Melloul demurred to various causes of action in the complaint.

Birnbaum demurs to the fourth, fifth, sixth, seventh, eighth, tenth, and twelfth causes of action. Melloul demurs to the third, fourth, eighth, and twelfth.

Plaintiff filed her opposition on January 31, 2025.

[Tentative] Ruling

The demurrer is sustained in its entirety with thirty (30) days’ leave to amend.

LEGAL STANDARD

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Cal. Code Civ. Proc., § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220.)

When considering a demurrer, a court reads the allegations stated in the challenged pleading liberally and in context, and “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Put differently: for purposes of demurrer, the court treats all facts alleged – but only the facts alleged – in the complaint as true. (Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732.) “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 v. Mirda (2007) 147 Cal.App.4th 740, 747.)

MEET & CONFER

“Before filing a demurrer ... , the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)

Defendant’s counsel attests she sent a single email to Plaintiff’s counsel stating the grounds for Defendants’ demurrer, and Plaintiff failed to respond. (Long Decl., ¶ 3.). A single email to Plaintiff does not satisfy meeting-and-conference requirements, regardless of Plaintiff’s purported failure to respond. The Code requires meeting and conference in person, by telephone, or by videoconference.

Nonetheless, Plaintiff’s declaration in support of her opposition shows further effort by both counsel to confer by phone. (G. Murai Decl., Exh. A.) Due to both counsel’s efforts, the Court forgives the oversight and proceeds to the merits. The Court recommends counsel make better effort moving forward to avoid unnecessary continuances.

ANALYSIS

Evidentiary Matters

Plaintiff submitted evidentiary material in support of her opposition; the Court may not consider extraneous evidence upon demurrer. (See Hahn v. Mirda, supra, 147 Cal.App.4th at p. 747.) Although some of Plaintiff’s exhibits could feasibly be subject to judicial notice, Plaintiff did not request as much. The Court considers the materials only to the extent they demonstrate the capacity to cure the complaint by amendment.

Notice of Demurrer

Although Defendants have construed their moving papers broadly by category – discussing, e.g., “each cause of action predicated on breach of any express or implied obligations of the alleged contract” (MPA, 6:1-3) – they have only challenged specific causes of action in their Notice of Demurrer. The Notice of Demurrer controls the scope of their pleading challenge. (See Cal. Rules of Court, rule 3.1320.)

As a result, Birnbaum has not challenged the first, second, third, ninth, or eleventh causes of action, and this ruling does not apply to those claims. Melloul has not challenged the eleventh cause of action, and this ruling does not apply to that claim.

Discussion

            Claims against Melloul

The third, fourth, and eighth causes of action against Melloul fail. Plaintiff alleges nothing as to Melloul except that Melloul signed her lease as the LLC’s agent. (Compl., ¶ 9.)

The twelfth cause of action is not alleged against Melloul; she does not have standing to challenge it. But Birnbaum does, and his challenge is successful, for reasons discussed below.

Melloul’s demurrer to the third, fourth, and eighth causes of action is sustained with leave to amend.

            Claims against Birnbaum

As to Birnbaum, Plaintiff alleges, by conclusion only, that 825 Sherbourne is Birnbaum’s alter ego; she alleges no facts to support this conclusion. (See Compl., ¶ 4.) Thus, her challenged contract claims - the fifth, seventh, and tenth - fail as to Birnbaum.

Plaintiff alleges no other facts specific to Birnbaum except that he illegally entered her Property. This allegation is unrelated to claims for false advertising, quasi-contract, or fraud. By itself, it is insufficiently outrageous to sustain a claim for intentional infliction of emotional distress. (See Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1242 [conduct “ ‘ “exceed[ing] all bound of that usually tolerated in a civilized society” ’ ”].)

Birnbaum’s demurrer is sustained in its entirety with leave to amend.

CONCLUSION

The Individual Defendants’ demurrer is sustained in its entirety with thirty (30) days’ leave to amend.