Judge William A. Crowfoot, Case Number: 23AHCV02028, Date: 2024-02-05 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV02028, Date: 2024-02-05 Tentative Ruling

On September 1, 2023, plaintiff Thomas Tran (“Plaintiff”) filed this action against defendant Li Lin (“Defendant”) asserting causes of action for: (1) negligence, (2) breach of implied warranty of habitability, (3) negligent infliction of emotional distress (“NIED”), (4) breach of oral contract. (5) conversion. (6) constructive eviction, (7) damages for renting unpermitted unit (California Civil Code section 1924.4), and (8) quantum meruit for services.

On December 11, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”).

On January 9, 2024, Defendant filed this demurrer and a special motion to strike pursuant to Code of Civil Procedure section 425.16.

Plaintiff alleges that in September 2022, Defendant offered to rent her “unit” on 8246 Yarrow Street in Rosemead, California (the “Subject Property”) to Plaintiff if Plaintiff would perform renovation work on said unit. (FAC, ¶¶ 2, 4.) Plaintiff would allegedly pay $500 per month and would be able to stay in the unit until the end of 2023. (FAC, ¶ 4.) Subsequently, in October 2022, Plaintiff allegedly performed 43 hours of work at an hourly rate of $75 on the following: “installation of toilet, water heater, faucet, shower, curtains, bathroom sink, mirror, molding [sic], kitchen sink, assembled and mounted closet cabinet, blinds, electrical work, paint wall and ceiling, cleaned and organized studio.” (FAC, ¶ 5.)

Plaintiff moved into the unit on October 20, 2022. (FAC, ¶ 6.) On November 12, 2022, a dispute arose between Plaintiff and a neighbor about parking. (FAC, ¶ 6.) On December 5, 2022, Defendant asked Plaintiff to move out. (FAC, ¶ 6.) Plaintiff refused because that was not the agreement they made. (FAC, ¶ 6.)

On January 8, 2023, Defendant allegedly locked the gate to the Subject Property to prevent Plaintiff from accessing the unit. (FAC, ¶ 9.) The gate was unlocked after Plaintiff called the police and Defendant was ordered to unlock the gate. (FAC, ¶ 10.) On or around January 29, 2023, Defendant allegedly entered the unit and removed Plaintiff’s personal belongings, including a refrigerant tank, tools, a metal cabinet with hand tools, small appliances, clothing, a night stand, and a Samsung tablet. (FAC, ¶ 10.) Plaintiff asked Defendant where his personal items were removed to and Lin informed him that they were left at a neighbor’s property; however, when Plaintiff contacted the neighbor, the neighbor denied that he had received Plaintiff’s personal belongings. (FAC, ¶ 10.)

On February 1, 2023, while Plaintiff was working, Defendant “had the unit’s toilet, molding [sic] and floor tiles removed; displaced the Refrigerator [sic], kitchen sink and cabinet.” (FAC, ¶ 11.) These acts were allegedly done to make the unit uninhabitable and constructively evict Plaintiff. (FAC, ¶ 11.) When Plaintiff contacted the police, Defendant claimed that Plaintiff had vacated or abandoned the unit and promised to a police officer that she would restore the toilet and other items, although she never did so. (FAC, ¶ 12.)

Defendant moves to strike the entire FAC pursuant to Code of Civil Procedure section 425.16 on the grounds that the FAC is predicated on: (1) Defendant’s unlawful detainer action (Case No. 23PDUD00050) (the “Unlawful Detainer Action”) filed on January 10, 2023, and dismissed on February 21, 2023, and (2) a temporary restraining order (Case No. 23PDR000032) (“TRO”) which was obtained by Defendant on January 10, 2023, and expired on February 1, 2023. Defendant requests the Court take judicial notice of “said case files” and documents attached as Exhibits A and B, which are copies of the complaint in the unlawful detainer and the application for the TRO.

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) To satisfy the first prong of the two-prong test, the defendant’s acts underlying the cause of action must themselves have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16(e): (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e); City of Cotati, supra, 29 Cal.4th at p. 78.)¿

In determining whether a cause of action is based on protected activity, we “examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 110 [citation omitted].) “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct ... that provides the foundation for the claim.’” (Id. at p. 111 [citation omitted].) In other words, section 425.16 does not apply if Defendant’s constitutionally protected activity is “merely incidental” or “collateral” to the unprotected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Ibid.)

In Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1279, the Second District Court of Appeal held that a tenant's complaint against a landlord filed after the service of a notice of termination and the filing of a complaint for unlawful detainer does not arise from those particular activities if the gravamen of the tenant's complaint challenges the decision to terminate the tenancy or other conduct in connection with the termination apart from the service of a notice of termination or filing of an unlawful detainer complaint. This decision followed others which similarly held that neither breaching an agreement nor wrongfully terminating a tenancy is an activity taken in furtherance of the constitutional right of petition or free speech. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 161; Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286-1287.) “The pivotal distinction” in the case law “is whether an actual or contemplated unlawful detainer action by a landlord ... merely ‘preceded’ or ‘triggered’ the tenant's lawsuit, or whether it was instead the ‘basis’ or ‘cause’ of that suit.” (Clark, supra, 170 Cal.App.4th at p. 1289.)

Here, Defendant fails to meet its burden to show that the first prong is satisfied. “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral, supra, 1 Cal.5th at p. 396.) Remarkably, Defendant does not include any analysis of how Plaintiff’s causes of actions (or specific allegations) are predicated on Defendant’s protected activity, i.e., filing the Unlawful Detainer Action or applying for the TRO. Instead, Plaintiff broadly states that “Plaintiff’s causes of action . . . are all predicated on [Defendant];s actions taken in furtherance of her right of petition in the underlying lawsuit.” (Motion, pp. 12-13.) This interpretation of the FAC ignores the allegations stating that Defendant’s wrongful conduct that: (1) occurred prior to both proceedings, or (2) is unrelated to either proceeding. For instance, the conduct underlying Plaintiff’s claim for breach of contract is Defendant’s demand for Plaintiff to move out. The demand occurred in December 2022, but the Unlawful Detainer Action was not filed until January 10, 2023. (See Trilogy at Glen Ivy Maintenance Association v. Shea Homes, Inc. (2015) 235 Cal.App.4th 361 [lawsuit may not trigger protection under the anti-SLAPP statute if the underlying conduct involves legal obligations that allegedly arose and were breached before any litigation activities were undertaken]. As another example, Plaintiff’s claim for conversion relates to Defendant’s removal of Plaintiff’s personal property in January 2023. It is unclear how this conduct would even be related to the Unlawful Detainer Action or TRO. Defendant fails to show how the Unlawful Detainer Action or TRO is a necessary element for any of Plaintiff’s claims. Accordingly, Defendant has not met her initial burden to show that Plaintiff’s claims arise from protected activity and the Court need not determine whether Plaintiff has a probability of prevailing on the merits of his claims. (Code Civ. Proc., § 425.16, subd. (b)(1).)

“Alternative” Motion to Strike Pursuant to Code of Civil Procedure section 435

In the alternative, Defendant moves to strike Plaintiff’s request for attorney’s fees in connection with Plaintiff’s breach of contract claim. Plaintiff concedes the issue in his opposition brief. Accordingly, the motion to strike Plaintiff’s prayer for attorneys’ fees is GRANTED.

As for Plaintiff’s punitive damages claim, Defendant argues that Plaintiff fails to allege conduct that demonstrates “oppression, malice, or fraud” pursuant to Civil Code section 3294. “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.)

Here, Plaintiff alleges that Defendant’s conduct was malicious with the required specificity. Plaintiff alleges that Defendant intentionally failed to repair and restore the unit’s bathroom shower when it was flooded with sewage and left it to fester for weeks. (See, e.g., FAC, ¶¶ 34, 61.) Defendant also allegedly took Plaintiff’s personal property worth over $10,000, removed it, and lied about its whereabouts. (See, e.g., FAC, ¶¶ 42, 54.) Defendant also allegedly removed all plumbing, appliances, flooring, and “molding” to make the unit uninhabitable. (FAC, ¶ 50.) Given these allegations, the Court finds that Plaintiff has adequately stated a prima facie claim for punitive damages.

As an initial matter, it is unclear which ground for demurrer applies to the FAC or individual causes of action. In its notice, Defendant states that the FAC is vague, ambiguous, and unintelligible, and fails to state sufficient facts to constitute any of the causes of action, before stating that Defendant demurs to all causes of action. Defendant does not adhere to California Rules of Court rule 3.1320, which requires each ground of demurrer to be stated “in a separate paragraph” and “whether it applies to the entire complaint. . . or specified causes of action.” However, based on the remainder of Defendant’s memorandum of points and authorities, it appears that Defendant is demurring on the grounds that Plaintiff’s FAC fails to state sufficient facts to constitute any cause of action.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Serrano v. Priest (1971) 5 Cal.3d 584, 591; 290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 452.)

Because a demurrer tests the legal sufficiency of a pleading, the plaintiff must show that the pleading alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) Where the pleading fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Defendant repeatedly argues that Defendant did not owe Plaintiff a duty to repair in February or March 2023 because Plaintiff failed to pay rent after December 20, 2022. Defendant cites to no legal authority for the novel proposition that a landlord is absolved of their statutory duty to provide a habitable dwelling if a tenant fails to pay rent. (Civ. Code, § 1941, 1941.1.)

Defendant also argues that Plaintiff does not allege that Defendant received notice of any uninhabitable conditions and that even if there was notice, Defendant was entitled to a reasonable amount of time to make the repairs. Defendant ignores the allegation that Defendant individually rendered the unit uninhabitable by removing appliances and fixtures and allowed the shower to flood with sewage water. (FAC, ¶ 34.) Defendant’s ancillary claim that she was entitled to have a reasonable time to make repairs under Civil Code section 1954 is irrelevant as an issue of fact not determined on a demurrer. (Demurrer, p. 8.)

Defendant demurs to the First and Third Causes of Action on the grounds that Plaintiff’s negligence-based claims are duplicative of his habitability claim. (Demurrer, pp. 6-7.) However, a plaintiff is permitted to plead alternative theories. The court of appeals held in Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 that duplicative causes of action are not ground on which a demurrer can be sustained. (Id. at 890.) In its reasoning, the court examined the legislative history of CCP section 430.41, which states the grounds for objections to pleadings including demurrers. (Ibid.) The court compared former CCP section 453, which was repealed in 1982, to current section 436(a). (Ibid.) Former section 453 authorized the striking of “irrelevant and redundant” matter from a pleading, whereas current section 436(a) now only empowers the court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Ibid.) The court reasoned that “[t]he elimination of the reference to redundancy may have rested on the irreproachable rationale that it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (See¿Civ. Code, § 3537¿[“Superfluity does not vitiate”].) This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Ibid.)

Defendant also incorporates her arguments regarding her duty to repair which, as stated above, the Court rejects. (Demurrer, p. 7.)

Defendant argues that Plaintiff does not have a claim for conversion because she legally disposed of his abandoned property pursuant to Civil Code section 1980 et seq. To support this assertion, Defendant misquotes paragraph 55 of the FAC and states that she “contacted Plaintiff regarding his personal property left at the residence and removed the property.” (Demurrer, p. 8.) However, Paragraph 55 states the opposite, which is that “Plaintiff reached out to [D]efendant” after his belongings were removed. (FAC, ¶ 55.) On reply, Defendant even admits that any “notice of belief of abandonment” was “unalleged in the complaint.” (Reply, p. 5.) Therefore, the demurrer to the Fifth Cause of Action is OVERRULED.

Defendant argues that Plaintiff’s breach of contract claim fails because Plaintiff “will be unable to allege or prove the performance of the contract because Plaintiff only alleged that he paid rent to reside at the property up through December 20, 2022.” This argument, which is unsupported by any legal authority, ignores the allegation that Defendant breached the contract first on December 5, 2022.

On reply, Defendant argues that Plaintiff’s cause of action also fails because “there are no damages resulting from [her] resquest that Plaintiff move out.” (Reply, p. 3.) This is an issue of fact. Plaintiff adequately alleges that he has suffered “immeasurable amount of financial and emotional/mental damages in an amount no less than $50,000” as a result of Defendant’s breach. (FAC, ¶ 51.)

Defendant’s moving papers only argue that the sixth cause of action is subject to the special motion to strike. (Demurrer, p. 9.) As discussed above, the special motion to strike is denied. Therefore, the demurrer on this ground is OVERRULED.

On reply, Defendant argues for the first time that any alleged lockout would not result in any actual damages. (Reply, p. 5.) Defendant also argues that “if Plaintiff moved out in January 2023 (FAC ¶ 73), then he cannot obtain damages for habitability issues at the premises arising in February and March 2023.” Nowhere in the Complaint, let alone paragraph 73, does Plaintiff allege that he moved out in January 2023.
The demurrer to the Sixth Cause of Action is OVERRULED>

Defendant did not discuss this cause of action in the moving papers, but argues on reply that Plaintiff fails to allege facts that allow her to “understand the time period for which Plaintiff complains of the habitability issues.” (Reply, p. 5.) To the extent there is any confusion or uncertainty in the allegations, this is a matter remedied in discovery. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Defendant also argues that Plaintiff cannot recover damages because he “consented” to the lack of amenities and did not pay rent after December 20, 2022. (Reply, pp. 5-6.) However, a landlord is not entitled to collect or request rent from a tenant in an unpermitted unit. (See Gruzen v. Henry (1978) 84 Cal.App.3d 517, 519.)

Defendant argues that Plaintiff cannot sue for quantum meruit because Plaintiff received consideration for the services provided, “namely, staying at the unit.” (Demurrer, p. 9.) This is a misreading of the FAC, which alleges that in exchange for installing amenities and fixtures, Plaintiff was supposed to reside in the until the end of 2023 and pay a reduced monthly rent of $500. (FAC, ¶ 6.)

Defendant also argues that Plaintiff cannot recover for the services he provided as an unlicensed contractor, but whether Plaintiff is licensed is an issue of fact outside the pleadings. (Demurrer, p. 10.)

The special motion to strike pursuant to Code of Civil Procedure section 425.16 is DENIED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.