Case Name: Cordes. v. Peterson
Case No.: 2017-1-CV-315495

On August 22, 1991, defendant Richard Peterson (“Defendant” or “Peterson”) and nonparty Virginia Galik entered into a month-to-month rental agreement. (See first amended complaint (“FAC”), ¶ 7, exh. A.) Plaintiff George Cordes (“Plaintiff” or “Cordes”) alleges that he occupied the subject property pursuant to an oral subtenancy agreement with the Galiks. (See FAC, ¶ 8.) On July 21, 2016, Pacific Gas and Electric issued a Hazard Notice regarding the water heater, noting that no natural gas conversion had been made. (See FAC, ¶ 11, exh. B.) On September 6, 2016, Defendant issued a 60 day notice of termination of tenancy. (See FAC, ¶ 12, exh. C.) Defendant prosecuted an unlawful detainer action, Richard Peterson v. Virginia Galik, et al. (Super. Ct. Santa Clara County, 2016, Case No. 2016-1-CV-302622). (See FAC, ¶ 13.) On the day of the December 29, 2016 trial, the parties—the Galiks, Cordes and Peterson—entered into a stipulation and order requiring the Galiks and Cordes to vacate the premises by February 28, 2017. The stipulation also provided that if Cordes did not vacate the premises by February 28, 2017, Peterson would be entitled to a judgment for cancellation of the rental agreement, possession of the premises, holdover damages from November 5, 2016, and court costs. The stipulation also provides that the security deposit shall be retained by Peterson without an accounting. Apparently, the Galiks and Cordes did not vacate the premises by February 28, 2017, and on March 3, 2017, the Court [Hon. Overton] entered judgment in favor of Peterson against the Galiks and Cordes for restitution and possession of the subject premises, forfeiture of the rental agreement, and for past due rent of $4,680.00 and court costs in the amount of $720.00, for a total judgment of $5,400.00. On March 21, 2018, Cordes filed the FAC against Peterson, asserting causes of action for:

1) Negligence;
2) Breach of the implied warranty of habitability;
3) Breach of the covenant of quiet enjoyability;
4) Intentional infliction of emotional distress;
5) Unlawful business practices;
6) Common law wrongful eviction;
7) Fraud; and,
8) Negligent misrepresentation.

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d).)

The demurrer to the seventh and eighth causes of action for fraud and negligent misrepresentation

Defendant demurs to the seventh and eighth causes of action for fraud and negligent misrepresentation on the ground that they are not pled with the requisite particularity. Indeed, “fraud actions are subject to strict requirements of particularity in pleading.” (Furia v. Helm (2003) 111 Cal.App.4th 945, 956; see also Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268 (stating same); see also Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (stating that “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice”).) The specificity requirement has two purposes: to apprise the defendant of certain definite accusations against him so that he can intelligently respond to them, and also to weed out nonmeritorious actions on the basis of the pleadings. (See Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838.) Minimally, a fraud cause of action must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 645; see also Tenet Healthsystem Desert, supra, 245 Cal.App.4th at p.838 (stating same).) Here, the Court agrees that the seventh and eighth causes of action are not pled with the requisite particularity.

Moreover, the seventh cause of action alleges that Defendant made misrepresentations regarding the legality or habitability of the subject premises while Plaintiff entered into the tenancy agreement. However, as Defendant argues, the FAC plainly alleges and the rental agreement attached to the FAC shows that the parties to the agreement are Virginia Galik and Defendant. (See Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145–1146 (stating that “[w]hile the ‘allegations [of a complaint] must be accepted as true for purposes of demurrer,’ the ‘facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence”), quoting Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767; see also Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627 (stating that “facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence”); see also Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 (stating that allegations of the complaint are not accepted as true if they contradict facts judicially noticed by the court); see also Def.’s memorandum of points and authorities in support of demurrer (“Def.’s memo”), p.2:5-13.) The FAC further alleges that “Plaintiff occupied a portion of the Premises from Defendants pursuant to an oral monthly Subtenancy Agreement… with the Galiks.” (FAC, ¶ 8.) The allegations that Plaintiff relied on misrepresentations by Defendant when Plaintiff entered into an oral subtenancy agreement with the Galiks, make no sense. In opposition, Plaintiff fails to explain any such inconsistency. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) The demurrer to the seventh and eighth causes of action is SUSTAINED with 10 days leave to amend after Defendant has served notice of entry of this order signed by the Court.

The demurrer to the fourth cause of action for intentional infliction of emotional distress

The fourth cause of action alleges that “Defendant knowingly rented an illegal unit to Plaintiff, thereby outing Plaintiff’s health and safety in danger, and then refused to make needed repairs to render the Premises habitable, including providing adequate heat.” (FAC, ¶ 47.) This allegation, however, is inconsistent with the prior allegations and the attached lease agreement which indicates that the lease agreement was between Defendant and Virginia Galik and Plaintiff entered into an oral subtenancy agreement with the Galiks despite the lease agreement’s prohibition on subleasing. Despite the inconsistent allegations of the fourth cause of action, the FAC otherwise alleges that Defendant did not knowingly rent to Plaintiff and instead, Plaintiff entered into a subtenancy agreement with the Galiks. Thus, these inconsistent allegations are fatal to the fourth cause of action for intentional infliction of emotional distress as the fourth cause of action does not explain the inconsistencies and are thus disregarded. (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384 (stating that “[i]f [the pleader] fails to… explain the inconsistency… the policy against sham pleading permits the court to take judicial notice of the prior pleadings… [and] the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint”).) Additionally, even if the allegations of the fourth cause of action was not inconsistent with the other allegations of the FAC and attached exhibit, as Defendant argues, this is not a basis for an intentional infliction of emotional distress (IIED) cause of action.

In opposition, Plaintiff merely cites to a portion of Hughes v. Pair (2009) 46 Cal.4th 1035, reciting the elements of an IIED cause of action, including extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress and the plaintiff’s suffering severe or extreme emotional distress. However, the Hughes court also stated that “[w]ith respect to the requirement that a plaintiff show severe emotional distress, [the California Supreme C]ourt has set a high bar.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) To plead “outrageous” conduct, the conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) “Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Hughes, supra, 46 Cal.4th at 1051.) Plaintiff does not respond to Defendant’s argument that the allegations do not rise to the level of outrageous or extreme. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Regardless, the alleged renting of the subject premises to Plaintiff and subsequent refusal to make needed repairs to render the premises habitable, is not conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community. The demurrer to the fourth cause of action for intentional infliction of emotional distress is SUSTAINED without leave to amend.

The demurrer to the sixth cause of action for wrongful eviction

Defendant demurs to the sixth cause of action on the ground that it fails to state facts sufficient to constitute a cause of action. As Defendant argues, courts have noted that “there is no such cause of action as unlawful, malicious or wrongful eviction.” (Zimmerman v. Stotter (1984) 160 Cal.App.3d 1067, 1075 fn. 5; see also Gause v. McClelland (1951) 102 Cal.App.2d 762, 764 (stating that “[t]here is no such thing as a cause of action for unlawful or malicious eviction of a tenant”).) “Where the eviction arises from the wrongful use of judicial processes the cause of action is one for malicious prosecution.” (Gause, supra, 102 Cal.App.2d at p.764; see also Zimmerman, supra, 160 Cal.App.3d at p.1075, fn.5; see also Asell v. Rodrigues (1973) 32 Cal.App.3d 817, 824, fn.3 (stating that “[t]he action for wrongful eviction or, as in the case at bench, for a threatened wrongful eviction is in reality an action for malicious prosecution, an essential element of which is a want of probable cause”).) Defendant argues that Plaintiff cannot allege a cause of action for malicious prosecution because the unlawful detainer action was not pursued to a legal termination favorable to Plaintiff. (See Def.’s memo, pp.8:10-28, 9:1-13, citing Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335 (stating that “in order to establish a cause of action for malicious prosecution a plaintiff must plead and prove that the prior proceeding, commenced by or at the direction of the malicious prosecution defendant, was: (1) pursued to a legal termination favorable to the plaintiff; (2) brought without probable cause; and (3) initiated with malice”).) Indeed, judicially noticeable facts indicate that a judgment was entered on March 3, 2017 in favor of Defendant.

In opposition, Plaintiff fails to address this issue, instead only irrationally arguing that “[a]ny other allegations are either matters within the Defendant’s knowledge or matters of proof outside the scope of demurrer.” (Opposition, p.6:1-9.) However, “[w]hen court records which the court may judicially notice provide ground for objection to a complaint, a demurrer on that ground is proper.” (Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, 180; see also Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299 (stating that “in ruling on a demurrer… a court may take judicial notice of the official acts or records of any court in this state”).) Plaintiff fails to show how he might otherwise be able to allege facts so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) The demurrer to the sixth cause of action is SUSTAINED without leave to amend.

The demurrer to the fifth cause of action for unfair business practices

Here, the fifth cause of action for unfair business practices is premised on Defendant’s alleged fraud. (See FAC, ¶¶ 58 (alleging that “[b]y doing the acts or omissions described above, Defendants committed the wrongs of… a fraudulent business act or practice. Fraud is a crime under California law”), 61 (alleging that “[t]he business act or practice of promising habitable premises but not delivering habitable premises is fraudulent because members of the public are likely to be deceived”).) Defendant argues that as the fraud causes of action are not pled with the requisite particularity, the fifth cause of action likewise fails to allege facts with sufficient particularity.

In opposition, Plaintiff again argues that “[a]ny other allegations are either matters within the Defendant’s knowledge or matters of proof outside the scope of demurrer.” (Opposition, p.5:21-28.) This is not responsive to Defendant’s argument. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) For reasons identical as stated in the order regarding the demurrer to the fraud causes of action, the demurrer to the fifth cause of action for unfair business practices is SUSTAINED with 10 days leave to amend after Defendant has served notice of entry of this order signed by the Court.

The demurrer to the first cause of action for negligence

Defendant demurs to the first cause of action for negligence on the ground that it does not allege facts supporting a duty or a breach of any viable duty. The first cause of action alleges that “[b]y reason of the relationships between Plaintiff and the Defendants arising out of the Rental Agreement, Defendants owed Plaintiff the duty to exercise reasonable care in the ownership, operation, management, and control of the Premises, which included but was not limited to the following: the duty to comply with all applicable state and local laws governing Plaintiff’s tenancy rights, the duty to not interfere with Plaintiff’s quiet enjoyment of the Premises, and the duty to maintain the Premises in habitable condition.” (FAC, ¶ 23.) Defendant argues that:

Plaintiff does not allege that Mr. Peterson gave him permission to live in the house. Rather, Plaintiff says Mr. Peterson rented the house to the Galiks through a written lease agreement. [Citation.] Plaintiff admits he illegally subleased the house from the Galiks through an “oral monthly Subtenancy Agreement…. Plaintiff attaches a lease agreement to the complaint, but he did not sign the lease, does not claim to have signed the lease, and is not a party to the lease agreement. [Citation.] Nevertheless, Plaintiff says he “shared” a landlord-tenant “relationship” with “Defendants,” without explaining who is the landlord and who is the tenant in that “relationship.”

(Def.’s memo, p.2:5-13.)

Defendant also makes certain arguments regarding the duty to repair.

As Defendant argues, Plaintiff lacks a “relationship… arising out of the Rental Agreement.” It is unclear if Defendant owes Plaintiff the alleged duties if such duties are not premised on the Rental Agreement. The demurrer to the first cause of action for negligence is SUSTAINED with 10 days leave to amend after Defendant has served notice of entry of this order signed by the Court.

The demurrer to the second cause of action for breach of the implied warranty of habitability

Defendant demurs to the second cause of action for the breach of the implied warranty of habitability, arguing that it fails to state facts sufficient to constitute a cause of action because Plaintiff “needs to allege that he was a legal tenant at the house…[and] Plaintiff has not alleged that he had any right to live in the house… [and instead has alleged that] he was an illegal sub-tenant with no relationship to Mr. Peterson whatsoever.” (Def.’s memo, pp.4:26-27, 5:1-3.) Defendant also argues that the second cause of action does not allege facts regarding notification of the defective conditions or when the notification occurred.

In opposition, Plaintiff does not address the first argument regarding the applicability of the breach of the implied warranty of habitability on a property owner with whom Plaintiff lacks any agreement. Plaintiff does cite to Peterson v. Super. Ct. (Banque Paribas) (1995) 10 Cal.4th 1185; however, Peterson and many other cases discuss that the implied warranty of habitability emanates from the lease agreement. (Id. at p.1191 (stating that “a lease for a dwelling contains an implied warranty of habitability”); see also Fairchild v. Park (2001) 90 Cal.App.4th 919, 924 (stating that “[t]here is ‘a common law implied warranty of habitability in residential leases in California’”), quoting Green v. Super. Ct. (Sumski) (1974) 10 Cal.3d 616, 619; see Green, supra, 10 Cal.3d at pp. 619-629 (discussing history of the implied warranty of habitability and its relationship to residential leases).) Plaintiff does not allege facts demonstrating the existence of an implied warranty of habitability from Defendant. The demurrer to the second cause of action is SUSTAINED with 10 days leave to amend after Defendant has served notice of entry of this order signed by the Court.

The demurrer to the third cause of action for breach of the implied covenant of quiet enjoyment

The third cause of action is for breach of the implied covenant of quiet enjoyment. In Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, the court noted that “every lease contains an implied covenant of quiet enjoyment.” (Id. at p.291.) Further, “[a]ny disturbance of the tenant’s possession by the lessor or at his procurement … which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time.” (Id. at p.292.) Defendant argues that the FAC does not allege that Plaintiff vacated the house within a reasonable time, and instead, judicially noticeable facts indicate that he stipulated to reside in the house for an additional two months and still did not vacate the house until weeks later. (See Def.’s memo, p.6:3-17.) In opposition, Plaintiff does not respond to the argument, instead stating “Plaintiff alleged a long list of on-going habitability violations and Defendant’s failure to repair… [a]ny other allegations are either matters within the Defendant’s knowledge or matters of proof outside the scope of demurrer.” (Opposition, pp.4:17-27, 5:1.) Defendant fails to show how he might otherwise be able to allege facts so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) The demurrer to the third cause of action is SUSTAINED without leave to amend.

The Court will prepare the Order.