Demurrer and motion to strike by defendant Glen Raft

1. Requests for Judicial Notice

Defendant Glen Raft’s requests for judicial notice are GRANTED. Raft complied with California Rules of Court (“CRC”), rules 3.1113(l) and 3.1306(c). The Court, however, does not take judicial notice of the truth of the hearsay statements contained in Case No. 1-13-CV-248685. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

2. Demurrer

a. First Cause of Action

Raft’s demurrer to the first cause of action for wrongful eviction on the ground of failure to state sufficient facts is OVERRULED. Raft argues that by bringing this action, plaintiff Kophi Niamien asserts an affirmative defense that should have been raised in the unlawful detainer action (Case No. 1-13-CV-248685) (i.e., the cause of action is barred by the doctrine of res judicata). The doctrine of res judicata rests upon the ground that the party had an opportunity to litigate the same matter in a former action, and should not be permitted to litigate it again. (Fairchild v. Bank of Am. (1958) 165 Cal.App.2d 477, 482.)

Niamien alleges that he was a tenant at property that Raft owned. (Complaint, ¶ 5.) In June 2013, Raft filed an unlawful detainer action against Niamien (Case No. 1-13-CV-248685). (Id., ¶ 10.) The unlawful detainer action was based on Niamien’s purported failure to comply with a notice to cease breaching the rental agreement. (Id., ¶ 11.) While the unlawful detainer action was pending, Niamien tendered and Raft accepted the rent for the premises. (Id., ¶ 12.) By accepting Niamien’s tender of the rent, Raft reinstated Niamien’s tenancy and waived any right to proceed with evicting Niamien. (Id.) Based upon the tender and acceptance of the rent, Niamien did not file a written response with the court in the unlawful detainer action. (Id., ¶ 13.) Despite having reinstated Niamien’s tenancy, Raft proceeded to obtain a default judgment against Niamien and thereafter wrongfully evicted him. (Id., ¶ 14.)

Tender and acceptance of rent during the notice period may constitute an implicit withdraw of the notice. (Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 11; see Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440 [“The acceptance of rent by the landlord from the tenant, after the breach of a condition of the lease, with full knowledge of all the facts, is a waiver of the breach and precludes the landlord from declaring a forfeiture of the lease by reason of said breach.”].) On the face of the complaint, therefore, Niamien did not have the opportunity to litigate her wrongful eviction claim in the unlawful detainer action because it was only after Raft obtained a default judgment against Niamien that Niamien was wrongfully evicted from the premises based on a notice that may have no longer been in effect.

b. Second Cause of Action

Raft’s demurrer to the second cause of action for conversion on the ground of uncertainty is OVERRULED. This is a limited jurisdiction matter, and uncertainty is a ground for a special demurrer. (See Code Civ. Proc., § 92, subd. (c) [special demurrers are disallowed in limited civil matters].)

3. Motion to Strike

Raft’s motion to strike the punitive damages allegations from paragraphs 19 and 25 is DENIED. Civil Code section 3294, subdivision (a), provides that “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” The complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct. (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) What is important is that the complaint as a whole contains sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. (Perkins, supra, 117 Cal.App.3d at pp. 6-7.)

As Niamien points out in his opposition, the complaint adequately alleges punitive damages based on Raft’s action of accepting a rent payment − thereby reinstating the tenancy − yet wrongfully evicted Niamien from the premises. (Complaint, ¶¶ 11-14.) Raft also refuses to return Niamien’s personal belongings. (Id., ¶¶ 17, 21-23.) This conduct allegedly was oppressive and malicious. (Id., ¶¶ 19, 25.) These allegations when read in context with the factual allegations suffice to plead a claim for punitive damages.