Case Name: John Nkwuo, et al. v. Farzaneh Yountchi, et al.

Case No.: 1-14-CV-270322

On March 2, 2011, plaintiff John Nkwuo (“Plaintiff” or “Mr. Nkwuo”)—a self-represented litigant—entered into a month-to-month lease agreement (the “Agreement”) with defendant Public Storage, Inc. (“Public Storage”). (See First Amended Complaint (“FAC”), p. 2:41-43.) It appears that Plaintiff failed to make the payments due under the lease agreement and Public Storage sold his personal property, worth approximately $50,000, for $30 at an auction. (See FAC, p. 2:43-50.) Plaintiff alleges that Public Storage breached the lease agreement by failing to provide him with various lien notices, publish the notice of sale in a local newspaper prior to the auction, accept partial payments from him, or honor his “Declaration in Opposition to Lein [sic] Sale.” (See FAC, p. 2:43-72.)

On November 17, 2014, Mr. Nkwuo and plaintiffs Penstaroil, LLC, Starr Engineering Associates, Pacific Magellan Funding, LLC, Penstarr Engineering, and Obanke Investment Associates (the “Corporate Plaintiffs”) (collectively “Plaintiffs”) filed the operative FAC against Public Storage and defendants Farzaneh Yountchi (“Mr. Yountchi”) (who is the district manager for the subject Public Storage facility), Ronald L. Havner (“Mr. Havner”) (who is CEO and President of Public Storage), and Steven Glick (“Mr. Glick”) (who is Senior Vice President, Chief Legal Officer, and Corporate Secretary of Public Storage) (collectively “Defendants”), asserting causes of action for: (1) breach of covenant of good faith and fair dealing; (2) breach of contract; (3) “Harassment & Hostile Environments;” (4) “Grand Theft/Conversion;” and (5) “Consumer Fraud Act Deceptive Business Practice.”

Currently before the Court are Defendants’ motion to strike and demurrer to the FAC. Mr. Nkwuo filed formal oppositions to the motion to strike and demurrer on February 4, 2015. Defendants filed reply papers on February 24, 2015. On March 2, 2015, Mr. Nkwuo filed a sur-reply in opposition to Defendants’ demurrer. The Court will not consider the sur-reply given that Mr. Nkwuo was not authorized to file it.

I. Defendants’ Requests for Judicial Notice

Defendants submit identical requests for judicial notice in connection with their demurrer and motion to strike.

Defendants’ requests for judicial notice are GRANTED as to the FAC. (See Evid. Code, § 452, subd. (d) [authorizing judicial notice of court records].)

The requests are DENIED as to the California Secretary of State Business Entity Detail for Pacific Magellan Funding, LLC and the California Secretary of State Business Search Results for Penstaroil, LLC, Starr Engineering Associates, Penstarr Engineering, and Obanke Investment Associates. The Court may take judicial notice of the existence of official acts of an executive department of the State of California. (See Evid. Code § 452, subd. (c).) However, the documents do not qualify as official acts because they are simply website printouts and copies of internet search results, which state that “[t]he data provided is not a complete or certified record of an entity.” (See RJN, Exs. B-F; see also Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [refusing to take notice of website pages of the American Coal Foundation and the U.S. Department of Energy]; see also Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [refusing to take judicial notice of information on the California Board of Registered Nursing website]; see also People v. Thacker (1985) 175 Cal.App.3d 594, 598-599 [noting that documents which memorialize private acts do not become official acts just because they are filed with government agencies].) While the Court may also take judicial notice of indisputable facts under Evidence Code section 452, subdivision (h), Mr. Nkwuo does not admit that the Corporate Plaintiffs failed to pay required fees or are not registered and/or qualified to do business in California and Defendants do not otherwise establish that such facts are indisputable. Thus, it does not appear that the Court may take judicial notice of these documents pursuant to Evidence Code section 452, subdivision (h).

II. Demurrer

Mr. Yountchi demurs to the first and second causes of action on the grounds of failure to allege facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subds. (e) and (f).) Defendants demur to the third, fourth, and fifth causes of action on the grounds of failure to allege facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subds. (e) and (f).) Defendants also demur to each and every cause of action of the FAC as alleged by the Corporate Plaintiffs on the grounds of lack of legal capacity, failure to allege facts sufficient to constitute a cause of action, and uncertainty. (See Code Civ. Proc., § 430.10, subds. (b), (e), and (f).) Finally, Mr. Havner and Mr. Glick demur to each and every cause of action of the FAC on the grounds of misjoinder of parties, failure to allege facts sufficient to constitute a cause of action, and uncertainty. (See Code Civ. Proc., § 430.10, subd. (d), (e), and (f).)

As a preliminary matter, Plaintiff’s opposition does not comply with California Rules of Court, rule 3.1113(d) because it exceeds 15 pages. (See Cal. Rules of Court, rule 3.1113(d) [“no opening or responding memorandum may exceed 15 pages”].) In addition, Defendants failed to tab their exhibits in compliance with California Rules of Court, rule 3.1110(f). (See Cal. Rules of Court, rule 3.1110(f) [“Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.”].) All parties are reminded that all papers must comply with the California Rules of Court and the Code of Civil Procedure. (See also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [stating that self-represented litigants “are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.”].)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

The demurrer by Mr. Yountchi to the first cause of action for breach of covenant of good faith and fair dealing and the second cause of action for breach of contract on the grounds of uncertainty and failure to allege facts sufficient to state a cause of action is SUSTAINED, with 10 days’ leave to amend. Initially, it is unclear whether the first and second causes of action are asserted against Public Storage alone, Public Storage and Mr. Yountchi, or all of the defendants due to the confusing labels and captions in the FAC. (See FAC, p. 1:31 [“Farzaneh Yountchi/Public Storage, Inc.”], 1:34 [“Defendants (LANDLORD)”], 2:42-43 [“PUBLIC STORAGE INC henceforth referred to as the Landlord”].) Thus, the first and second causes of action are fatally uncertain as to Mr. Yountchi. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Furthermore, Defendants persuasively argue that the Agreement, as pleaded, was entered into by Mr. Nkwuo and Public Storage alone and the FAC fails to plead the existence of a contract between Mr. Nkwuo and Mr. Yountchi. (See FAC, p. 2:41-43; see also Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 [stating the requisite elements of a breach of contract claim, which include the existence of a contract between the plaintiff and the defendant]; see also Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 711-712 [the existence of a contractual relationship between the parties is a prerequisite to an action for breach of the implied covenant of good faith and fair dealing].) Thus, the first and second causes of action fail to allege facts sufficient to state a cause of action as to Mr. Yountchi.

The demurrer by Defendants to the third cause of action for “Harassment & Hostile Environments” on the grounds of uncertainty and failure to allege facts sufficient to state a cause of action is SUSTAINED, with 10 days’ leave to amend. First, the cause of action is uncertain because it is wholly unclear which plaintiffs are alleging the third cause of action and whether the claim is asserted against Public Storage alone, Public Storage and Mr. Yountchi, or all of the defendants. (See FAC, p. 3:82-87.) Second, under California law, harassment (and related hostile work environment) is a “creature of statute,” specifically the Fair Employment and Housing Act (“FEHA”), and thus there is no common law cause of action. (See Medix Ambulance Serv., Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 119 [stating that there is no common law cause of action for harassment and that FEHA is the only source for a harassment cause of action].) The FAC does not assert a statutory cause of action under FEHA let alone plead the claim with the requisite particularity. (See Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal.4th 771, 790 [“the general rule [is] that statutory causes of action must be pleaded with particularity”].)

The demurrer by Defendants to the fourth cause of action for “Grand Theft/Conversion” is OVERRULED. Defendants cannot demurrer to only part of a cause of action and Defendants state that they do not demurrer to the fourth cause of action in its entirety, but only to the extent that it attempts to state a claim for grand theft. (See PH II, Inc. v. Super. Ct. (Ibershof) (1995) 33 Cal.App.4th 1680, 1682 [stating that a demurrer does not lie to a portion of a cause of action].)

The demurrer by Defendants to the fifth cause of action for “Consumer Fraud Act Deceptive Business Practice” is OVERRULED. While Defendants are correct that Plaintiffs fail to adequately allege facts demonstrating fraud, Business and Professions Code section 17200 (i.e., the unfair competition law (“UCL”)) prohibits a wide range of conduct including unlawful or unfair business practices. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 [the statute “embraces anything that can properly be called a business practice and that at the same time is forbidden by law.”].) In light of the ruling on the fourth cause of action, there exists, at the very least, a predicate act of conversion upon which to base a UCL claim for unlawful business practices. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [stating that a claim for relief under Business and Professions Code section 17200 et seq. “stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.”].)

The demurrer by Defendants to each and every cause of action of the FAC as alleged by the Corporate Plaintiffs on the ground of lack of legal capacity to sue is OVERRULED. First, Defendants argue that the Corporate Plaintiffs lack the legal capacity to sue because they are not parties to the Agreement that is the subject of the FAC. Defendants confuse the concepts of legal capacity to sue and standing to sue. (See Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 [“‘There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court.’ [Citation.] ‘[Lack of legal capacity to sue] … deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. . .’ [Citation.]”].) “A person lacks standing to sue if, for example, it is not a real party in interest.” (Id. at fn. 4.) Because the issue of standing goes to the existence of a cause of action, the proper ground to raise that issue on demurrer is failure to state facts sufficient to constitute a cause of action. (See Tarr v. Merco Constr. Engineers, Inc. (1978) 84 Cal.App.3d 707, 713 [“The defect of a lack of standing to sue makes a complaint subject to general demurrer for failure to state a cause of action.”].) Thus, Defendants improperly cite lack of legal capacity to sue as a ground for demurrer. Second, Defendants argue that the Corporate Plaintiffs lack legal capacity to sue because they failed to pay required fees to the Franchise Tax Board or they are not registered and/or qualified to do business in California. Defendants’ argument is based on the California Secretary of State Business Entity Detail for Pacific Magellan Funding, LLC and the California Secretary of State Business Search Results for Penstaroil, LLC, Starr Engineering Associates, Penstarr Engineering, and Obanke Investment Associates. As articulated above, the Court cannot take judicial notice of those documents and, thus, Defendants’ argument based on the same cannot be considered on demurrer. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

The demurrer by Defendants to the first and second causes of action of the FAC as alleged by the Corporate Plaintiffs on the grounds of failure to allege facts sufficient to state a cause of action and uncertainty is SUSTAINED, with 10 days’ leave to amend. The Corporate Plaintiffs fail to plead the existence of any contract between them and Defendants because the only contract alleged is between Mr. Nkwuo and Public Storage. (See FAC, p. 2:41-43; see also Acoustics, Inc. v. Trepte Construction Co., supra, 14 Cal.App.3d at p. 913 [stating elements of breach of contract cause of action, which include the existence of a contract between the plaintiff and the defendant]; see also Molecular Analytical Systems v. Ciphergen Biosystems, Inc., supra, 186 Cal.App.4th at pp. 711-712 [the existence of a contractual relationship between the parties is a prerequisite to an action for breach of the implied covenant of good faith and fair dealing].)

The demurrer by Defendants to the third cause of action of the FAC as alleged by the Corporate Plaintiffs on the grounds of failure to allege facts sufficient to state a cause of action and uncertainty is MOOT given the ruling above sustaining Defendants’ demurrer to the third cause of action in its entirety.

The demurrer by Defendants to the fourth and fifth causes of action of the FAC as alleged by the Corporate Plaintiffs on the grounds of failure to allege facts sufficient to state a cause of action and uncertainty is OVERRULED. Defendants suggest that the fourth and fifth causes of action fail to allege facts sufficient to state a claim and are uncertain because “[t]here are no facts alleged in the FAC … to establish any connection between these Plaintiffs and this suit.” (Mem. Ps & As., p. 8:10-11.) However, the FAC alleges sufficient ultimate facts regarding the Corporate Plaintiffs. With respect to the fourth cause of action, the FAC alleges that “Public Storage unlawfully converted the Plaintiffs’ property when it sold it at the auction” (see FAC, p. 3:94-95) and that the property sold included business assets. (See FAC, p. 3:103-104.) Additionally, as stated above, the alleged conversion of those assets supports the fifth cause of action for violation of Business and Professions Code section 17200. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [stating that a claim for relief under Business and Professions Code section 17200 et seq. “stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.”].)

The demurrer by Mr. Havner and Mr. Glick to each and every cause of action of the FAC on the grounds of misjoinder of parties, failure to allege facts sufficient to constitute a cause of action, and uncertainty is SUSTAINED, with 10 days’ leave to amend. Mr. Havner and Mr. Glick persuasively argue that the FAC is uncertain, fails to allege facts sufficient to constitute a cause of action, and does not state a common question of fact as to them because it does not allege any facts pertaining to them or set forth facts regarding the nature of their alleged conduct that forms the basis of the causes of action. Mr. Nkwuo indicates in his opposition that he named Mr. Havner and Mr. Glick as defendants because they “are corporate executive that have legal authorities to receive legal Complaints and Summons for [Public Storage] ….” (Opp’n., p. 2:70-72.) However, as Mr. Havner and Mr. Glick note, Plaintiffs need not name Public Storage’s corporate officers as defendants in order to effectuate service of the summons and complaint. (See Code Civ. Proc., § 416.10.)

III. Motion to Strike

Defendants move to strike the following portions of the FAC: the prayer for attorneys’ fees (see FAC, p. 5:158); the prayer for injunctive relief (see FAC, p. 5:144); the request for the return of Mr. Nkwuo’s personal belongings (see FAC, pp. 2:54-56, 5:141-143); the prayer for punitive damages (see FAC, p. 5:146-147, 149, 151, 153, 155, 160); and the Corporate Plaintiffs’ prayer for damages. (See FAC, p. 5:146-154.)

A court may strike any irrelevant, false, or improper matter inserted into any pleading or strike all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (See Code Civ. Proc., § 436.) As with a demurrer, the grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (See Code Civ. Proc., § 437, subd. (a); see also City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913.) In ruling on a motion to strike, the court reads the complaint as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing, Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

The motion to strike the prayer for attorneys’ fees is GRANTED, with 10 days’ leave to amend. The FAC does not set forth any contractual or statutory basis entitling Plaintiffs to the recovery of attorneys’ fees. (See Code Civ. Proc., § 1021; see also Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d 124, 127 [noting that attorneys’ fees are usually not recoverable unless authorized by statute or contract].) Additionally, Mr. Nkwuo does not cite any legal authority supporting his position that he should be paid attorneys’ fees equivalent to his rate as a professional engineer. Self-represented parties—like Mr. Nkwuo—are not entitled to recover attorneys’ fees. (See Trope v. Katz (1995) 11 Cal.4th 274, 280.)

The motion to strike the prayer for injunctive relief is GRANTED, with 10 day’s leave to amend. “To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law.” (City of South Pasadena v. Dept. of Transportation (1994) 29 Cal.App.4th 1280, 1293; see also 5 Witkin, California Procedure (4th ed. 1997) Pleading, §779, p. 236.) Plaintiffs have not pleaded facts which demonstrate an entitlement to such relief, particularly that acts complained of are likely to be repeated in the future. (See Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465.)

The motion to strike Mr. Nkwuo’s request for the return of his personal belongings is OVERRULED. As indicated above, the fifth cause of action for violation of Business and Professions Code section 17200 survives Defendants’ demurrer. “Under the UCL, a trial court has broad equitable power to award restitution after considering ‘the equities on both sides of a dispute.’ [Citation.]” (Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1015.) Restitution includes “the return of property or funds in which the plaintiff has an ownership interest …. [Citation.]” (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 453 [emphasis added].) Thus, Mr. Nkwuo’s request for the return of his belongings appears to be a proper claim for restitution. Defendants’ argument that the court would be precluded from ordering the return of Mr. Nkwuo’s belongings to him because they were sold to a bona fide purchaser is not well-taken. On its face, the FAC does not contain any facts indicating that Mr. Nkwuo’s personal belonging were sold to a bona fide purchaser. Moreover, whether a buyer is a bona fide purchaser is a question of fact that cannot be resolved on this motion. (See Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1254 [“We note preliminarily that the issue of whether a buyer is a BFP is a question of fact.”]; see also Code Civ. Proc., § 437, subd. (a) [stating that the grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice].)

The motion to strike the prayer for punitive damages is GRANTED, with 10 days’ leave to amend. The FAC does not allege sufficient facts establishing malice, oppression, or fraud. (See Civ. Code, § 3294, subd. (c)(1) [“‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others.”], (2) [“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of the rights and safety of others.”], (3) [“‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”]; see also American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050 [despicable conduct is conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people”; punitive damages are proper when the “conduct rises to levels of extreme indifference to the plaintiff’s rights” that “decent citizens should not have to tolerate”].)

The motion to strike the Corporate Plaintiffs’ prayer for damages is DENIED. Defendants argue that the Court should strike the Corporate Plaintiffs’ request for damages because they are not parties to the Agreement and they lack legal standing to sue. First, as stated above, Defendants’ argument that the Corporate Plaintiffs lack legal standing to sue is not well-taken. Second, the causes of action for grand theft/conversion and violation of Business and Professions Code section 17200 are not based upon the Agreement and, thus, the Corporate Plaintiffs may properly seek damages in connection with those claims.