Demurrer and Motion to Strike Complaint (Judge Michael E. Whitaker)

Case Number: 24SMCV00306    Hearing Date: June 5, 2024    Dept: 207

TENTATIVE RULING

DEPARTMENT 207
HEARING DATE June 5, 2024
CASE NUMBER 24SMCV00306
MOTIONS Demurrer and Motion to Strike Complaint
MOVING PARTIES Defendants Alliance Property Management, Inc. and Great for Six, LLC
OPPOSING PARTY none

MOTIONS

On January 23, 2024, Plaintiff David Schlosberg (“Plaintiff”) filed suit against Defendants Alliance Property Management, Inc. and Great for Six LLC (“Defendants”) alleging four causes of action for (1) wrongful eviction; (2) vacate void judgment; (3) breach of covenant of quiet enjoyment of the premises; and (4) negligence.  Defendants now demur to the first three causes of action[1] on the grounds that they fail to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e).  Defendants also move to strike all claims for damages, including punitive damages, from the complaint.  Both motions are unopposed.

REQUEST FOR JUDICIAL NOTICE

            Defendants request judicial notice of the following:

  1. Exhibit A: Unlawful Detainer Complaint (the “UD Complaint”) filed on February 9, 2023, as case number 23SMUD00248.
  2. Exhibit B:  Answer to the UD Complaint filed by Mr. Schlosberg.
  3. Exhibit C: Judgment and Special Verdict in the UD action.
  4. Exhibit D: An action filed by Plaintiff against Alliance and others seeking damages related to his tenancy, as case number 23SMCV02310.
  5. Exhibit E: A Motion Notwithstanding the Verdict (“JNOV”) relating to the Judgment and Special Verdict in the Unlawful Detainer action.
  6. Exhibit F: The decision rendered on the JNOV against Plaintiff and in favor of Alliance.

Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because the requested exhibits are all court records within this state, the Court may take judicial notice of them.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)  Accordingly, the Court takes judicial notice of the court records, including the truth of results reached and legal implications of the records, the Court does not take judicial notice of the truth of hearsay allegations in the requested pleadings.

ANALYSIS

  1. DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

  1. FAILURE TO STATE A CAUSE OF ACTION

Defendant demurs to the first three causes of action on the grounds that the issues were already adjudicated in connection with a prior Unlawful Detainer (“UD”) action.  (See RJN Exs. A-C, E & F.)  Indeed, the Complaint alleges:

  1. Plaintiff executed a Fixed-Term Residential Lease (“Lease”) on or around January 28, 2006 concerning real property located at 846 4th Street, Unit #103, Santa Monica, CA 90403 (“Subject Property”). Alliance Property Management, Inc. is authorized agent for “Landlord” and owner of the property, Great For Six LLC (“Landlord”). The Lease includes a provision for attorney fees.
  2. On or around January 26, 2023, defendants Alliance and Landlord (collectively referred to herein as “Defendants”) caused to serve Plaintiff with a (curable) THREE (3) DAY NOTICE TO PERFORM OR QUIT (“Notice”) which required Plaintiff to remove “all unauthorizedoccupants from the Premises and to permanently cease and desist all subletting … and to utilize the Premises as your primary residence, or to vacate and return possession of the Premises to the  Landlord.” Defendants did not cause to serve a (non-curable) THREE (3) DAY TO QUIT.
  3. Defendants caused to file unlawful detainer case 23SMUD00248 on February 9, 2023, based on the 3-day notice to perform covenants or quit. Defendants checked item 7.b. “The tenancy 3 described in 6 is subject to the Tenant Protection Act of 2019.” Defendants checked item 9.a.(5) which stated: “3-day notice to perform covenants or quit (not applicable if item 7b checked).
  4. Judgment was entered against Plaintiff on 9/12/23. Plaintiff informed Defendants on or around 11/28/23 that the judgment was void because the unlawful detainer complaint was void for failure to serve a 3-day notice to quit in compliance with the Tenant Protection Act. Defendants refused to vacate the judgment or otherwise stay the judgment in any manner.
  5. Plaintiff was evicted from the subject property on or around 11/24/23. Plaintiff has been harmed by Defendants’ wrongful eviction and is entitled to damages as a matter of law.

(Complaint ¶¶ 7-11.)

            “A litigant may collaterally attack a final judgment for lack of personal or subject matter jurisdiction, or for granting relief that the court had no power to grant, but may not collaterally attack a final judgment for nonjurisdictional errors.”  (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854.)

            Personal jurisdiction in an Unlawful Detainer action is conferred by virtue of service of the summons and unlawful detainer complaint, not the 3-Day Notice to Quit, and whether Plaintiff was properly served with the 3-day Notice to Quit is an element of an unlawful detainer claim, not a jurisdictional prerequisite.  (Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 612-613 [“Those courts and treatises that have […] described the service of the three-day notice as jurisdictional are incorrect”].)

            Therefore, Plaintiff’s allegations that only a 3-Day Notice to Perform or Quit and no subsequent 3-Day Notice to Quit was served following Plaintiff’s failure to perform, in violation of the Tenant Protection Act, does not allege a jurisdictional defect on the face of the judgment that renders the judgment void and subject to collateral attack.

Therefore, the Court sustains Defendants’ demurrer to the first three causes of action.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.)

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff’s rights. Plaintiff’s injuries were exacerbated by the malicious conduct of Defendants. Defendants’ conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].)

Moreover, “the imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

            Here, because the Court sustains Defendants’ demurrer to the first three causes of action, Plaintiff’s claims for damages related to those causes of action, including the punitive damages claim asserted in connection with the First Cause of Action, are moot.

            The only claims for damages that remain at issue are alleged in connection with the Fourth Cause of Action for negligence.  Defendants base their request to strike such non-punitive damages claims on the same grounds as the demurrer to the first three causes of action –res judicata bars the claims which arise from Plaintiff’s tenancy with Defendants.  Because Defendant did not demur to the Fourth Cause of Action, the Court declines to strike the request for damages on that basis.

  1. LEAVE TO AMEND

 

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int’l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int’l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet this burden as Plaintiff failed to oppose the demurrer and motion to strike, and therefore does not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted.

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendants’ Demurrer to the First, Second, and Third Causes of Action without leave to amend.

The Court denies Defendants’ motion to strike Plaintiff’s claims for damages, including the claim for punitive damages, concerning the First, Second and Third Causes of Action as moot, and denies as procedurally defective the request to strike Plaintiff’s claims for damages alleged in connection with the fourth cause of action.

Further, the Court orders Defendants to file and serve an Answer to the Complaint on or before June 26, 2024.

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  June 5, 2024                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court

[1] “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”  (Code Civ. Proc., § 430.60.)  Although the Memorandum of Points and Authorities indicates that the demurrer “is directed to all causes of action” (Demurrer at p. 6), the Demurrer itself only lists the first three causes of action (Demurrer at p. 3.)  Therefore, the Court finds that Defendants have only demurred to the first three causes of action.  (See also California Rules of Court, rule 3.1320.)