Case Number: LC105815    Hearing Date: October 10, 2017    Dept: T

The Court rules upon the general demurrers of Defendant Midway Investments, LLC (“Midway”) to the Complaint of Marisa Mendelson (“Plaintiff” or “Ms. Mendelson”), as follows:

First Cause of Action:  Negligence.

The demurrer to the First Cause of Action (for Negligence) is overruled.  Negligence may be pleaded generally. 4 B. Witkin, California Procedure, Pleading § 596.

Second Cause of Action:  Breach of the Covenant of Good Faith and Fair Dealing.

The demurrer to the Second Cause of Action is overruled.  Plaintiff’s complaint firmly alleges that the rental agreement in this case is not legal, and that at some point in the relationship she learned of the illegality.  Complaint ¶ 13.  Likewise, Plaintiff’s opposition to the demurrer stoutly maintains the illegality of the Contract.  Opposition to Demurrer at 8:18-24.  Nevertheless, by this cause of action, Plaintiff seeks to enforce certain portions of an illegal contract that are perceived to be favorable to her.

In Tri-Q, Inc. v. Sta-Hi Corp. (1965) 63 Cal. 2d 199, the California Supreme court described an exception to the rule against either party seeking to enforce an illegal contract:

Where, by applying the rule, the public cannot be protected because the transaction has been completed, where no serious moral turpitude is involved, where the defendant is the one guilty of the greatest moral fault, and where to apply the rule will be to permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule should not be applied.”

 

63 Cal.2d at 219.  The extent to which this exception will apply depends on the kind of illegality and the particular facts of the case. Lewis & Queen v. N. M.Ball Sons (1957) 48 Cal.2d 141, 150.  Based on the facts alleged in the complaint, it cannot be determined whether the Plaintiff is in pari delicto, or otherwise should not be entitled to enforce in any way the implied covenant of habitability for any period of her tenancy.

The Court notes that the Second Cause of Action is uncertain in that it is referring to a written lease that is allegedly attached to the Complaint.  No lease is actually attached. Midway has not filed a special demurrer, and this is not a ground upon which a general demurrer can be sustained.

 

Third Cause of Action:  Violation of Los Angeles Municipal Code § 151.01, et seq.

The demurrer to the Third Cause of Action is sustained with leave to amend.  Once again, it cannot be inferred from the allegations of the Complaint that Plaintiff is not entitled to any protection of the Los Angeles Rent Control Ordinances.  See Carter v. Cohen (2010) 188 Cal.App.4th 1038.  Nevertheless, the Third Cause of Action seeks the very result and under the very terms that the Court of Appeal found to be an “absurd” result: allowing the tenant to live rent free and recover a treble damage penalty.  Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 768.

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