Case Name: Rosanne Mayhew v. MRD Enterprises, LLC, et al.

Case No.: 2015-1-CV-288449

Demurrer to Complaint and Motion to Strike Shawn Mawla as a Defendant by defendants MRD Enterprises, LLC and Shawn Mawla

On or about February 25, 2010, plaintiff Rosanne Mayhew, d.b.a. For Women by Women OB/GYN (“Mayhew”) and defendant MRD Enterprises, LLC (“MRD”) entered into a written lease agreement. (Complaint, ¶BC-1 and Exh. A.) At various times through December 2013, defendant MRD breached the lease agreement by providing substandard electrical wiring which led to a near fire in plaintiff Mayhew’s leased premises, caused destruction of plaintiff Mayhew’s property, and caused plaintiff Mayhew to temporarily shut down her business. (Complaint, ¶BC-2.) Plaintiff Mayhew complained about the faulty electrical wiring to the local government and, in retaliation, defendant MRD evicted plaintiff Mayhew. (Complaint, ¶¶GN-1, IT-1, and EX-2.)

On November 24, 2015, plaintiff Mayhew filed a Judicial Council form complaint against defendant MRD and Shawn Mawla (“Mawla”), alleged to be MRD’s principal, agent, property manager, and managing agent. (Complaint, ¶9.) Plaintiff’s complaint asserts causes of action for:

(1) Breach of Contract [versus MRD]
(2) General Negligence [versus MRD and Mawla]
(3) Retaliatory Eviction [versus MRD and Mawla]

On February 26, 2016, defendants MRD and Mawla filed this demurrer and motion to strike.

DISCUSSION

I. Procedural violation.

Effective January 1, 2016, Code of Civil Procedure section 430.41 requires a demurring party to meet and confer with the party who filed the challenged pleading to seek informal resolution of the demurring party’s objections. (Code Civ. Proc., § 430.41, subd. (a).) The meet and confer must be conducted in person or by telephone, and must address each cause of action to be included in the demurrer. (Ibid.) If these efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) While a court may not overrule a demurrer for insufficient meet and confer efforts (Code Civ. Proc., § 430.41, subd. (a)(4)), it may continue the hearing and order the parties to meet and confer as required (see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2).

Defendants MRD and Mawla failed to file a meet and confer declaration as required by Code of Civil Procedure section 430.41. In furtherance of judicial economy, the court will overlook defendants’ failure to comply with Code of Civil Procedure section 430.41 in this instance but hereby places defendants and their counsel on notice that they are required to comply with the Code of Civil Procedure in the future.

II. Request for judicial notice.

In support of the demurrer/ motion to strike, defendants request judicial notice of the court docket for Santa Clara County Superior Court, case number 2014-1-CV-262228, MRD Enterprises, LLC v. Mayhew. Pursuant to Evidence Code §452, subdivision (d), the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

Accordingly, the request for judicial notice in support of demurrer to complaint and motion to strike Shawn Mawla as a defendant is GRANTED.

III. Defendants MRD and Mawla’s demurrer to the complaint is OVERRULED.

A. First Cause of Action – Breach of Contract.

Interestingly, defendants begin by citing legal principles governing demurrers. In particular, defendants cite Code of Civil Procedure section 430.30, subdivision (a) which states, “When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Emphasis added.) In spite of their recognition of this principle, defendants proffer a number of extrinsic facts to support its demurrer to the complaint.

“A statement of a cause of action for breach of contract requires a pleading of (1) the contract, (2) plaintiff’s performance or excuse for non-performance, (3) defendant’s breach, and (4) damages to plaintiff therefrom.” (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.) In demurring, defendants apparently contend the allegation of breach is insufficient. Plaintiff Mayhew’s complaint specifically identified defendants’ breach of paragraphs 2.2, 2.3, and 11.1 (in conjunction with 50) of the lease agreement.

Paragraph 11.1 states, in relevant part, “Lessor shall provide … reasonable amounts of electricity for normal lighting and office machines… .” Paragraph 50 states, in relevant part, “Lessee shall be permitted to install 220 volt outlets as Lessee deems necessary for Lessee’s intended use.” Defendants contend there has been no breach of these provisions because defendants “did supply outlets for reasonable amounts of electricity for lighting and office machines and did allow Plaintiff to install a 220 volt outlet.” There is nothing on the face of the complaint or any fact(s) which this court has been asked or could take judicial notice of to support the factual assertion(s) made by defendants.

Defendants contend paragraphs 2.2 and 2.3 of the lease agreement cannot support plaintiff Mayhew’s first cause of action. However, in view of the court’s opinion above, a demurrer does not lie to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778—“[A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682—“A demurrer does not lie to a portion of a cause of action;” Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274—“ A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action.”)

Consequently, defendants MRD and Mawla’s demurrer to the first cause of action in plaintiff Mayhew’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of contract is OVERRULED. Defendants MRD and Mawla’s demurrer to the first cause of action in plaintiff Mayhew’s complaint on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED. In limited jurisdiction matters, Code of Civil Procedure section 92, subdivision (c) governs and states, “Special demurrers are not allowed.”

B. Second Cause of Action – General Negligence.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; see also CACI, No. 400.)

In demurring, defendants MRD and Mawla contend they did not breach the duty of care and, in fact, fulfilled their duty. Defendants cite legal authority for the proposition that, “the landlord’s responsibility to inspect is limited. Like a residential landlord, the duty to inspect charges the lessor ‘only with those matters which would have been disclosed by a reasonable inspection.’ [Citation.]” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 782.) Defendants explain that there have been no tenant complaints regarding the electrical system in the twelve years prior to plaintiff Mayhew’s occupation and had no complaints for the six months after her initial occupation. As discussed above, there is nothing on the face of the complaint or any fact(s) which this court has been asked or could take judicial notice of to support the factual assertion(s) made by defendants.

To the extent the second cause of action alleges negligence based on retaliatory eviction, defendants point to the judicially noticed court docket in Santa Clara County Superior Court, case number 2014-1-CV-262228, MRD Enterprises, LLC v. Mayhew for the assertion that defendants voluntarily dismissed that action so there was no eviction, retaliatory or otherwise. The court cannot deduce such a fact from the limited information appearing on the docket.

Consequently, defendants MRD and Mawla’s demurrer to the second cause of action in plaintiff Mayhew’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for general negligence is OVERRULED. Defendants MRD and Mawla’s demurrer to the second cause of action in plaintiff Mayhew’s complaint on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED. In limited jurisdiction matters, Code of Civil Procedure section 92, subdivision (c) governs and states, “Special demurrers are not allowed.”

C. Third Cause of Action – Retaliatory Eviction.

Defendants demur to the third cause of action for retaliatory eviction on the same grounds that it demurrer to the second cause of action. For the same reasons discussed above, defendants MRD and Mawla’s demurrer to the third cause of action in plaintiff Mayhew’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for retaliatory eviction is OVERRULED. Defendants MRD and Mawla’s demurrer to the third cause of action in plaintiff Mayhew’s complaint on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED. In limited jurisdiction matters, Code of Civil Procedure section 92, subdivision (c) governs and states, “Special demurrers are not allowed.”

IV. Defendants’ motion to strike is DENIED.

Defendants move to strike defendant Mawla from the complaint altogether. With regard to the first cause of action, defendant Mawla was not a party to the contract. Plaintiff Mayhew concedes this point, noting that the first cause of action is directed at defendant MRD only. (See Complaint, ¶BC-1—“…agreement was made between Plaintiff and Defendant, MRD Enterprises, LLC.”)

With regard to the second and third causes of action, defendants merely incorporate the arguments made in support of their demurrer to the second and third causes of action to argue that there are no facts to support the causes of action against Mawla.

Irrespective of the arguments raised, a motion to strike in a limited jurisdiction matters “are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., §92, subd. (d.)) Here, defendants’ motion to strike is not being made on the ground that damages or relief sought are not supported. Accordingly, defendants’ motion to strike Shawn Mawla as a defendant is DENIED.