Case Number: BC575091 Hearing Date: August 04, 2015 Dept: 46
Case Number: BC575091
CHRISTINA MUNIOZ ET AL VS LONDRADE INVESTORS LLC ET AL
Filing Date: 03/11/2015
Case Type: Other Real Property Rights Case (General Jurisdiction)

08/04/2015
(1) Defendant Londrade Investors, LLC Demurrer and Motions to Strike
(2) Defendant Isquierdo’s Demurrer and Motion to Strike
(3) Conference-Case Management

NOTICE OF POSTING OF TENTATIVE RULING AND TELEPHONIC SUBMISSION

This tentative ruling is posted at 1:21 p.m. on 07/31/2015.

If there are no parties who have appeared in the action other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 633-0646, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

TENTATIVE RULING

Summary of Ruling

Londarade demurrer is sustained with ten (10) days leave to amend. Londrade motion to strike is off calendar as moot. Isquierdo demurrer is sustained only as to the 5th and 6th causes of action, but not otherwise.

Discussion

On 3/11/15, Plaintiffs (“P”) filed their complaint for (1) Breach of a Common law Warranty of Habitability; (2) Breach of Statutory Warranty of Tenantability; (3) Violation of CC §1942.4 and Injunctive Relief; (4) Declaratory Relief; (5) Unfair Business Practices and Competition in Violation of B&P §§17200 et seq. and (6) Breach of K against Defemdans Londrade Investors LLC (hereinafter, “Londrade”); Catalina Isquierdo, individually and as a TE of the Catalina Isquierdo Trust (hereinafter, “C. Isquierdo”); Oscar Isquierdo (hereinafter, “O. Isquierdo”) and DOES 1-50. On 6/2/15, Plaintiff dismissed C. Isquierdo, without prejudice.

(1) Londrade’s Request for Judicial Notice is GRANTED. Londrade’s demurrer to the 5th and 6th Causes of Action (“COAs”) in P’s complaint are SUSTAINED with 10 days leave to amend on the basis that they both fail to state facts sufficient to constitute COAs pursuant to CCP §430.10.

(a) Unfair Business Practice

The 5th Cause of Action for Unfair Business Practices and Violation of B&P §17200 et. seq. are defective as Plaintiffs have not alleged any unlawful, or unfair, or fraudulent conduct by Londrade. Podolsky v. First Healthcare Corp. (1996) 50 C.A.4th 632, 647 [“Business and Professions Code section 17200…establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent.”];

As to the unlawful prong plaintiff has not met the required pleading standard. G.H.I.I. v. MTS (1983) 147 C.A.3d 256 [“If a business practice is alleged to be “unlawful,” then the complaint “must state facts supporting the statutory elements of the alleged violation;”] Khoury v. Maly’s of Calif. (1993) 14 C.A.4th 612, 619 [“demurrer to B&P §17200 cause of action is properly sustained; complaint identified no particular statutory section that was violated and failed to describe with reasonable particularity facts supporting violation.] To same effect see 5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 779, p. 196.

Relative to the “unfair” prong, see Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 C.4th 163, 187 [“[A]ny finding of unfairness to competitors under section 17200 [must] be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition.” Id. at 186-187.]

As to the “fraudulent business practice” prong see Pastoria v. Nationwide Ins. (2003) 112 C.A.4th 1490, 1498 [“In order to state a cause of action under the fraud prong of [section 17200] a plaintiff need not show that he or others were actually deceived or confused by the conduct or business practice in question. “The ‘fraud’ prong of [section 17200] is unlike common law fraud or deception. A violation can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Instead, it is only necessary to show that members of the public are likely to be deceived.” [Citations.]’ (Schnall v. Hertz Corp. (2000) 78 C.A.4th 1144, 1167).” Progressive West Ins. Co. v. Yolo County Superior Court (2005) 135 C.A.4th 263, 284.

(b) Breach of Contract

The 6th Cause of Action for Breach of Contract is incomplete. While the complaint describes the contract in detail, it fails to mention whether or not Londrade is a party thereto or otherwise responsible for performance on the contract. This is an necessary element of the cause of action. Furthermore the pleading of the complaint presents a the Statute of Frauds problem for which no exception is pled. An amendment to the pleading is required to address these issues, if possible.

“’A cause of action for damages for breach of K is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’ (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 C.A.4th 221, 228.

Plaintiffs have alleged, in pertinent part, as follows:

“10. Pursuant to a verbal rental agreement for the rental of the subject premises entered into between the plaintiffs and defendants CATALINA ISQUIERDO TRUST, CATALINA ISQUIERDO and OSCAR ISQUIERDO on or about November 29, 2006, plaintiffs agreed to pay and did pay to defendants for the rental of the subject premises a security deposit of $500.00 and rent in the sum $700.00 per month, beginning on or about December 1, 2006…
55. On or about November 29, 2006, plaintiffs and defendants entered into a written rental agreement by the terms of which plaintiffs paid a security deposit of $500.00 and $700.00 per month rent for the Subject Premises and in consideration thereof Defendants let the Subject Premises to the Plaintiffs.
56. Plaintiffs have fully performed all of Plaintiffs’ legal duties and obligations under the terms of the Rental Agreement. .
57. Thereafter, Plaintiffs discovered that consideration for said agreement had failed in that the Subject Premises were constructed without Building Permits, have no Certificate of Occupancy, are declared Substandard by a governmental agency pursuant to Health and Safety Code § 17920.3, are non-compliant with LARSO and violate other provisions of the law.
58. Plaintiffs rescinded the contract for failure of consideration and demanded restitution of the monthly rental payments paid to Defendants.
59. Defendants have failed, refused and continue to fail and refuse to restore to Plaintiff the consideration paid to them by Plaintiffs, or any part thereof.
60. By reason of Defendants’ failure to restore the consideration to Plaintiffs, Plaintiff has been damaged in the sum which is more specifically set forth in the prayer for relief for this cause if action…” (Complaint, ¶¶ 10 and 55-60).

Plaintiffs do not identify Londrade as a party to the contract. Additionally, this purported oral rental agreement is barred by the Statute of Frauds; CC §1624 states, in relevant part, as follows:

“(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:…

(3) An agreement for the leasing for a longer period than one year…”

(c) Motion to Strike

Londrade also moves this court for an order, per CCP §§ 435-437, striking out portions of the complaint. The motion is moot as an amended pleading must be filed that will supersede the one currently under consideration. In order to assist in the formulation of an amended pleading the court would deny the MTS – Londrade’s argument that it cannot be liable for $67,200.00 in retroactive rents because it only became the owner of the subject property in 12/14 is not the proper subject of a MTS.

(2) Isquiredo’s Demurrer

The court does not take judicial notice of a Certificate of Occupancy that was not filed with the court. Isquierdo demurs, per CCP §430.10(d)&(e), are directed to the 1st-6th COAs in Plaintiff’s complaint, on the basis that they each fail to state facts sufficient to constitute COAs AND because they appear to be barred by the applicable Statute of Limitations. Isquirdo also argues that Plaintiffs cannot state any supporting facts in regards to the element ,of an uninhabitable condition as a Certificate of Occupancy in fact exists for the subject property. Furthermore, Isquierdo argues that there is an insurmountable defect/misjoinder of parties, because C. Isquierdo is deceased.

As a preliminary matter, O. Isquierdo’s defect/misjoinder argument is MOOT, inasmuch as Ps dismissed C. Isquierdo, without prejudice, on 6/2/15.

Further, O. Isquierdo’s argument that a “Certificate of Occupancy” exists may not be entertained, as this constitutes an extraneous matter which is not the subject of a valid RJN.

The Statute of Limitations argument fails as Plaintiffs have pled a continuing breach up through the time he sold the subject property to Londrade, in 12/14.

However, for the same reasons as the court sustained the demurrer as to Londrade above, the Isqueerdo demurrer is SUSTAINED with leave to amend (i.e., as to the 5th and 6th COAs – Ps’ 5th COA is deficient, for the reasons set forth above; the 6th COA is deficient, inasmuch as Plaintiffs have inconsistently pled that the lease was oral (¶10) and written (Id., ¶55) but the demurrer as to Isquierdo is otherwise OVERRULED.

(3) Case Management Conference

As the pleadings are unsettled, the CMC is continued to 11/12/2015 at 8:30 a.m. in Dept. 46.

IT IS SO ORDERED:

Frederick C. Shaller, Judge