Case No.: 1-14-CV-269467

Demurrer by defendants Lam Do, individually and dba 3Dos LLC, Western Property Group, Inc., Barry Ford, and Sheila Kerns, to Plaintiff’s Second Amended Complaint

Plaintiff Sahib Mann, individually and dba The Mann Sales Team alleges Defendant Lam Do (“Do”), individually and dba 3Dos LLC (“3Dos”), is the owner of premises located at 6010 Hellyer Avenue in San Jose. (SAC, ¶16.) The premises located at 6010 Hellyer Avenue in San Jose consist of a commercial office building split into two suites: Suite 100 and Suite 150. (SAC, ¶17.) Within these suites are singular office units which Do/3Dos leased to different commercial tenants. (Id.)

On May 8, 2013, Mann entered into a written lease agreement with Defendant 3Dos for the lease of two office units within the building located at 6010 Hellyer Avenue, Suite 150. (SAC, ¶18 and Exh. A.) The lease identifies the specific office units as Room 1 and Room 2, but are commonly referred to as Unit Nos. 6 and 7. (Id.) The May 8, 2013 lease agreement is the subject of an unlawful detainer complaint filed on March 26, 2014 by 3Dos (“Unlawful Detainer Action”). (SAC, ¶20 and Exh. B.) 3Dos obtained a judgment in the Unlawful Detainer Action entitling 3Dos to possession of 6010 Hellyer Avenue, Suite 150, Unit Nos. 6 – 7. (SAC, ¶21 and Exh. C.) On June 24, 2014, 3Dos obtained a writ of possession entitling 3Dos possession to 6010 Hellyer Avenue, Suite 150, Unit Nos. 6 – 7. (SAC, ¶22 and Exh. D.)

Plaintiff had already vacated 6010 Hellyer Avenue, Suite 150, Unit Nos. 6 – 7 on January 1, 2014 and gave Plaintiff Do notice that he had vacated and surrendered the premises. (SAC, ¶23.) After vacating 6010 Hellyer Avenue, Suite 150, Unit Nos. 6 – 7, Plaintiff came into possession of 6010 Hellyer Avenue, Suite 150, Unit No. 1, pursuant to an oral agreement with Defendant Do individually. (SAC, ¶¶24 – 25 and Exh. E.)

On July 1, 2014, while Plaintiff was lawfully in possession of 6010 Hellyer Avenue, Suite 150, Unit No. 1, Defendants wrongfully evicted Mann from 6010 Hellyer Avenue, Suite 150, Unit No 1. (SAC, ¶¶26 – 33.)

On January 15, 2015, Plaintiff Mann filed a second amended complaint (“SAC”) which now serves as the operative pleading in this action. The SAC asserts causes of action for:

(1) Forcible Eviction
(2) Intentional Infliction of Emotional Distress
(3) Defamation
(4) Intentional Interference with Contractual Relations
(5) Unfair Competition
(6) General Negligence
(7) Negligent Infliction of Emotional Distress

On April 6, 2015, Defendants Do, individually and dba 3Dos, Western Property Group, Inc., Barry Ford, and Sheila Kerns filed this demurrer to the SAC.

I. Requests for judicial notice

A. Defendants’ request for judicial notice is GRANTED.

In support of their demurrer, Defendants request judicial notice of various records from the Unlawful Detainer Action. Evidence Code section 452, subdivision (d) states that 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, Defendants’ request for judicial notice is GRANTED, but only insofar as the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein.

B. Plaintiff’s request for judicial notice is GRANTED.

In opposition to the demurrer, Plaintiff requests judicial notice of records from this action. Based on the same authority cited above, Plaintiff’s request for judicial notice is GRANTED, but only insofar as the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein.

II. Defendants’ demurrer to the SAC is SUSTAINED, in part, and OVERRULED, in part.

A. Res judicata/ Collateral estoppel

The doctrine of res judicata may be raised on demurrer. (See Lincoln Property Co. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905 (Lincoln).)

‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them … [Citation.] Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action. A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. [Citation.] A predictable doctrine of res judicata benefits both the parties and the courts because it seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.

(Lincoln, supra, 137 Cal.App.4th at p. 912.)

“The doctrine of res judicata applies when: (1) there is a final judgment on the merits in a previous action; (2) the party against whom the plea is raised was a party or in privity with a party to the previous action; and (3) the issues decided in the previous action are identical to those in the later action.” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)

“Collateral estoppel is a doctrine which prevents relitigation of issues previously argued and resolved in a prior proceeding. [Citation.] In order to apply this principle: (1) the issue must be identical to that decided in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) the issue must have been necessarily decided in the prior proceeding; (4) the decision must have been final and on the merits; and (5) preclusion must be sought against a person who was a party or in privity with a party to the prior proceeding. [Citation.]” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233 (Alvarez).) “In deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.” (Alvarez, supra, 143 Cal.App.4th at p. 1233.)

Defendants argue that the SAC is barred by the doctrines of res judicata and/or collateral estoppel. Defendants have asked the court to take judicial notice of the underlying Unlawful Detainer Action and assert that the judgment in the Unlawful Detainer Action precludes Plaintiff from now pursing this litigation. Defendants rely heavily upon Hamilton v. Waters (1949) 93 Cal.App.2d 866 (Hamilton), where the plaintiff brought a wrongful eviction action against defendant after defendant obtained a judgment in an unlawful detainer action and a writ of possession had been issued and executed.

Appellant alleges that she was not served with a 30-day notice of termination of tenancy or a three-day notice to pay rent or quit and that summons and complaint in the unlawful detainer action were not served upon her. Insofar as this action for damages is concerned such contentions have been disposed of by the judgment of the municipal court and the dismissal of the appeal therefrom. Her only relief, if such allegations be true, is by an action in equity to set aside the judgment. The instant cause is a collateral attack on a valid, final judgment. An action for damages cannot be maintained against respondents by reason of the enforcement of an execution regularly issued upon a valid judgment. [Citation.] A judgment of a court of general jurisdiction cannot be attacked in a collateral proceeding. [Citation.]

(Hamilton, supra, 93 Cal.App.2d at pp. 867- 868.)

Because of the judgment and writ of possession issued against Plaintiff for possession of premises described as 6010 Hellyer Avenue, Suite 150 (without any reference to room or unit numbers), Defendants argue, the eviction was proper.

Defendants acknowledge Plaintiff’s allegations that the Unlawful Detainer Action concerned the written lease for 6010 Hellyer Avenue, Suite 150, unit nos. 6 – 7, but that Plaintiff came into possession of 6010 Hellyer Avenue, Suite 150, unit no. 1, pursuant to a separate oral lease. Defendants contend that this fact is of no importance because the Unlawful Detainer Action encompassed Plaintiff’s possession of Suite 150 regardless of which particular unit he actually possessed.

The court, however, is not prepared to reach the conclusion that the doctrines of res judicata and/or collateral estoppel bar this action simply because the judgment and writ of possession in the Unlawful Detainer Action refer to Suite 150. As discussed above, one of the critical elements in applying either res judicata or collateral estoppel is identity of the issues and that they are actually and necessarily decided in the previous action. Here, it cannot be determined, as a matter of law, whether the propriety of Plaintiff’s possession of 6010 Hellyer Avenue, Suite 150, unit no. 1, was actually and necessarily decided in the Unlawful Detainer Action.

Accordingly, the demurrer on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.

B. Intentional Infliction of Emotional Distress

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)

“In order to state a cause of action for intentional infliction of emotional distress a plaintiff must show, [among other things], outrageous conduct by the defendant.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) “Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by a trier of fact, the court may determine in the first instance whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Id.) “With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051; punctuation and citation omitted.)

Importantly, whether emotional distress was severe is generally a question of fact. (See Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 51.) Defendants contend the SAC does not include allegations of severe emotional distress. The allegation is found at paragraph 37. Accordingly, the demurrer to the second cause of action 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 intentional infliction of emotional distress is OVERRULED.

C. Defamation

“Defamation is effected by either of the following: (a) Libel; (b) Slander.” (Civ. Code, §44.) “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, §45.)

“Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

As alleged, Defendants defamed Plaintiff “by leaving a sign that they had directed the Sheriff’s deputies to place over the door of Unit No. 1 which stated that Plaintiff would be arrested for trespass if he tried to re-enter the premises because he had been removed from the premises by process of law and pursuant to a lawful adjudication.” (SAC, ¶39.)

Defendants demur additionally to the third cause of action by arguing that the publication is privileged because it is a statutory posting by the Santa Clara County Sheriff pursuant to a judicial proceeding. (See Civ. Code, §47, subd. (a)—“A privileged publication or broadcast is one made … in the proper discharge of an official duty.”)

In opposition, Plaintiff apparently concedes the posting of the sign was privileged, but Defendants’ refusal to remove the sign was not. Plaintiff seeks to impose a new form of liability based upon a refusal to remove a privileged publication. Plaintiff cites no valid legal authority to support such a cause of action.

Accordingly, the demurrer to the third cause of action 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 defamation is SUSTAINED WITHOUT LEAVE TO AMEND.

D. Unfair Competition

Defendants apparently conflate legal principles governing intentional interference with contractual relations with those governing unlawful business practices. For instance, defendants cite Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392 – 393, where the court wrote, “a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ [Footnote.] [Citation.]” Plaintiff’s fifth cause of action asserts a claim for unlawful business practices, not interference with prospective economic relations.

Accordingly, the demurrer to the fifth cause of action 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 unfair competition is OVERRULED.

E. Negligence/ Negligent Infliction of Emotional Distress

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “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.)

“One observation is necessary at the beginning of any case involving an emotional distress claim based on negligence. When courts use the acronym ‘NIED’ for ‘negligent infliction of emotional distress’ (and they commonly do) they are in danger of falling into a semantic trap.” (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656 (Lawson).) “At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress.” (Lawson, supra, 69 Cal.App.4th at p. 656.) “The negligent causing of emotional distress is not an independent tort, but the tort of negligence.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.)

With no specific discussion, Defendants argue generically that Plaintiff has “failed to allege facts that support any of the aforementioned elements.” Plaintiff has made the following factual allegations: Defendants owed Plaintiff a duty as “a tenant in legal possession of the premises Unit No. 1 located at 6010 Hellyer Avenue” (SAC, ¶¶66 and 71); Defendants breached by “wrongfully remov[ing] and evict[ing]” Plaintiff from the premises (SAC, ¶¶67 and 71); “[a]s an actual and proximate result of said negligent wrongful eviction on the part of the Defendants, the Plaintiff has suffered and incurred loss of use of property and damages in an amount to be determined at the time of trial.” (SAC, ¶¶70 and 71.) Defendants’ argument is without merit.

Accordingly, the demurrer to the sixth and seventh causes of action 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 negligence or negligent infliction of emotional distress, respectively, is OVERRULED.