Case Number: 19STCV24611 Hearing Date: March 02, 2020 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

KIMBERLY FAY, et al.,

Plaintiffs,

vs.

GLENN SOLOMON, et al.,

Defendants.

CASE NO.: 19STCV24611

[TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFFS’ COMPLAINT; MOTION TO STRIKE; MOTION FOR SANCTIONS

Date: March 2, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant Glenn Solomon (“Moving Defendant”)

RESPONDING PARTIES: Plaintiffs Kimberly Fay; James Vitale; Tammy Solz; Jeffrey K. Schmidt; Jamie Rosenthal-Boyer; and Theodore Boyer

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs’ complaint arises from their tenancy and alleged wrongful eviction from a property located at 336 North Ogden Drive, Los Angeles, CA 90036 (the “Subject Property”). Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) violation of the Unruh Civil Rights Act; (2) violation of California Civil Code, Section 789.3; (3) forcible entry and detainer; (4) wrongful eviction; (5) violation of Los Angeles Rent Stabilization Ordinance; and (6) conversion. In part, the complaint alleges that a fire occurred at the Subject Property on March 2, 2019 and it damaged but each of the units at the Subject Property but did not destroy the entire building. (Complaint at ¶ 18.)

Moving Defendant filed a demurrer to the first, second, third, fourth, fifth, and sixth causes of action in Plaintiffs’ complaint. Moving Defendant also filed a motion to strike portions of the complaint. Moving Defendant also filed a motion for sanctions against Plaintiffs and their counsel of record jointly and severally. The Court will address all of the motions filed by Moving Defendant within this one ruling.

MEET AND CONFER

The meet and confer requirement has been met.

JUDICIAL NOTICE

California Evidence Code, Section 452(b) says that the Court may take judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” California Evidence Code, Section 452(c) allows the Court to take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” “[T]he general rule [is] that [w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1026.) A court may take judicial notice of “the official resolutions, reports, and other official acts of a city.” (Id. at 1027.)

The Court GRANTS Moving Defendant’s request for judicial notice. The Court therefore OVERRULES Plaintiffs’ objection to Moving Defendant’s request for judicial notice.

DEMURRER

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) In ruling on a demurrer, a court “may also take notice of exhibits attached to the complaints. If facts appearing in the exhibits contradict those alleged, the facts in exhibits take precedence.” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) Where allegations in a complaint conflict with express terms of an agreement, the Court “will, in hearing on the demurrer, examine the exhibits and treat the pleader’s conclusions as surplusage.” (Alphonzo E. Bell Corp. v. Bell View Oil Syndicate (1941) 46 Cal.App.2d 684, 691.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.) “Under the doctrine of truthful pleading, the courts will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts that are judicially noticed.” (Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027.)

Issue No.1: First Cause of Action

“Enacted in 1959, the Unruh Act secures equal access to public accommodations and prohibits discrimination by business establishments.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1150.) California Civil Code, Section 51(b) says that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” California Civil Code, Section 51(a) says that “[t] his section shall be known, and may be cited, as the Unruh Civil Rights Act.” “With regard to the Unruh Civil Rights Act particularly . . . it must be construed liberally in order to carry out its purpose to create and preserve a nondiscriminatory environment in California business establishments by banishing or eradicating arbitrary, invidious discrimination by such establishments.” (Munson v. Del Taco, Inc. (2009) 46 Cal.App.4th 661, 666.) “The Unruh Civil Rights Act serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.” (Id.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Pursuant to the first cause of action, the complaint alleges that: (1) Defendants denied, aided, or incited a denial of full and equal accommodations to Plaintiffs, or discriminated against Plaintiffs or made a distinction that denied Plaintiffs full and equal accommodations, advantages, or facilities, or privileges and services (Complaint at ¶ 23); and (2) a substantial motivating reason for the Defendants’ conduct was their perception of Plaintiffs’ ages, or status as long-term rent-stabilized tenants who were unlikely to move because of their ages and low rent (Id. at ¶ 24.)

Here, the court finds that Plaintiffs have failed to state a violation in connection with the Unruh Civil Rights Act. Neither age nor low rent are one of the protected classes outlined in California Civil Code, Section 51(b).

Therefore, the Court SUSTAINS the demurrer of Moving Defendant to the first cause of action in the complaint with 20 days leave to amend.

Issue No. 2: Second Cause of Action

California Civil Code, Section 789.3(a) says that “[a] landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” California Civil Code, Section 789.3(b) says that a landlord cannot, with intent to terminate the occupancy under any lease or other tenancy at will, however created, of property used by a tenant as his or her residence, willfully: (1) prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device; (2) remove outside doors or windows; or (3) remove from the premises the tenant’s personal property, the furnishings, or any other items without the prior written consent of the tenant.

Pursuant to the second cause of action, Plaintiffs allege that: (1) Defendants, with the intent to terminate the occupancy of Plaintiffs, willfully prevented Plaintiffs from gaining reasonable access to the Subject Property by fencing off the Subject Property and not allowing them access to obtain their belongings (Complaint at ¶ 28); (2) Defendants willfully removed Plaintiffs’ personal property from the Subject Property with the intent to terminate Plaintiffs’ occupancy of their apartment units (Id.); and (3) Defendants locked Plaintiffs out. (Id. at ¶ 19.)

Plaintiffs have stated facts sufficient to constitute a cause of action under California Civil Code, Section 789.3 pursuant to California Civil Code, Section 789.3(b). Moving Defendant’s demurrer to the second cause of action in the complaint is OVERRULED.

Issue No. 3: Third Cause of Action

California Code of Civil Procedure, Section 1160(a)(1) imputes liability for forcible detainer on a person who “[b]y force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise.” California Code of Civil Procedure, Section 1159(a) says that person is guilty of forcible entry who: (1) breaks open doors, windows, or other parts of a house, or by any kind or violence or circumstance of terror enters upon or into any real property; or (2) after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. California Code of Civil Procedure, Section 1160(b) says that “[t]he occupant of real property, within the meaning of this section is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands.”

“[A] non-violent lock change can support a statutory claim for forcible entry.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1039.) “Forcible entry is not confined to cases where a fight takes place, or physical force or restraint is used, or there are threats of physical harm.” (Id.) “There is a statutory violation if entry was made by breaking locks, without any other show of force, threat, or intimidation.” (Id.) “The same is true where a locksmith is employed to peaceably change the lock.” (Id.) “No flat breach of the peace is necessary.” (Id.)

Here, the Court finds that Plaintiffs have not stated a cause of action for forcible entry and detainer. The complaint alleges that Defendants: (1) fenced off the Subject Property and locked Plaintiffs out claiming that their tenancies were terminated (Complaint at ¶ 19); (2) Defendants did not give Plaintiffs the opportunity to recover their personal property unless they signed a document presumptively releasing Defendants and their agents from all claims relating to removing their personal property (Id.); and (3) on April 11, 2019, Defendants mailed letters entitled “Notice of Terminating Lease” to Plaintiffs purporting to terminate their leases without notice and without legal process. (Id.)

Therefore, the Court SUSTAINS with 20 days leave to amend the demurrer of Moving Defendant to the third cause of action in the complaint.

Issue No. 4: Fourth Cause of Action

A cause of action of action for wrongful eviction requires a showing of two elements: (1) plaintiff’s possession; and (2) defendants’ forcible entry. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1039.) “By dispossession plaintiff without resort to judicial process, defendants exposed themselves to potential tort liability for wrongful eviction.” (Id. at 1042.) “By changing the locks . . . defendants expose[] themselves to potential tort liability for forcible entry.” (Id.)

Pursuant to the fourth cause of action, the complaint alleges that: (1) Defendants intentionally trespassed into Plaintiffs’ rental units, and willfully deprived Plaintiffs of peaceful possession of their units, locking Plaintiffs out, and using self-help (Complaint at ¶ 40); (2) Plaintiffs protested this action, refused to give up their tenancies, and in some cases, continued to pay rent even after Defendants wrongfully locked them out of their homes (Id.); and (3) Defendants knew that Plaintiffs could only be evicted by legal process and only on one of the grounds enumerated in Los Angeles Municipal Code section 151.09 A. (Id. at ¶ 39.) Plaintiffs have stated a cause of action despite Moving Defendant’s request for judicial notice. (Crossin Decl. at Exhibit A.) Section 151.09 still requires a landlord to bring an action to recover possession of a rental unit. (Id.)

Moving Defendant’s demurrer to the fourth cause of action in the complaint is OVERRULED.

Issue No. 5: Fifth Cause of Action

While Moving Defendant presents a citation to California Civil Code, Section 1947.7(a) which says in part that “the operation of local rent stabilization programs can be complex and that disputes often arise with regard to standings of compliance with the regulatory processes of these programs” and “it is the intent of the Legislature to limit the imposition of penalties and sanctions against an owner of residential rental units where that person has attempted in good faith to fully comply with the regulatory process,” Moving Defendant cites no legal authority with respect to the elements needed to show a violation in connection with the fifth cause of action, and only cites to his request for judicial notice to support his argument. Moving Defendant has waived argument in connection with the fifth cause of action due to his failure to provide the court with any relevant authority in connection with the fifth cause of action. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.) While Moving Defendant argues that Plaintiffs have no basis for relocation fees (Demurrer at 13:2-6), the complaint alleges other wrongful actions pursuant to the fifth cause of action such as: (1) Defendants not obtaining clearance for renovation work (Complaint at ¶ 45); (2) Defendants failing to obtain a permit for primary renovation work currently taking place at the Subject Property (Id. at ¶ 46); and (3) Defendants making it explicitly clear that Plaintiffs would not be allowed to return to their units. (Id.)

Moving Defendant’s demurrer to the fifth cause of action in the complaint is OVERRULED.

Issue No. 6: Sixth Cause of Action

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

The complaint does not state a cause of action for conversion against Moving Defendant as it is much too conclusory and does not plead the element of damages. (Complaint at ¶¶ 49-51.)

Moving Defendant’s demurrer to the sixth cause of action in the complaint is SUSTAINED with 20 days leave to amend.

MOTION TO STRIKE

Moving Defendant seeks to strike punitive damages allegations from the complaint in connection with the third, fourth, and fifth causes of action, as well as from the prayer for relief with respect to the third, fourth, and sixth causes of action.

Legal Standard

California Code of Civil Procedure, Section 436(a) allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” California Code of Civil Procedure, Section 436(b) allows a court to “[s]trike out all or any 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.”

Issue No.1: Punitive Damages

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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 or safety of others.” (Civil Code § 3294(c)(1).) “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “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.” California Civil Code, Section 3294(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) Punitive damages “are not a favorite of the law and the granting of them should be done with the greatest of caution. They are allowed only in the clearest of cases.” (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526.)

Analysis

The Court finds that Plaintiffs have not stated facts indicating malice, fraud, or oppression on behalf of Moving Defendant. The complaint alleges that: (1) Defendants, with the intent to terminate the occupancy of the Plaintiffs, willfully prevented Plaintiffs from gaining reasonable access to the Subject Property by fencing off the Subject Property and not allowing them access to obtain their belongings (Complaint at ¶ 28); (2) Defendants willfully removed Plaintiffs’ personal property from the Subject Property with the intent to terminate Plaintiffs’ occupancy of their apartment units (Id.); (3) Defendants locked Plaintiffs out (Id. at ¶ 19); (4) Defendants fenced off the Subject Property and locked Plaintiffs out claiming that their tenancies were terminated (Id. at ¶ 19); (5) Defendants did not give Plaintiffs the opportunity to recover their personal property unless they signed a document presumptively releasing Defendants and their agents from all claims relating to removing their personal property (Id.); (6) on April 11, 2019, Defendants mailed letters entitled “Notice of Terminating Lease” to Plaintiffs purporting to terminate their leases without notice and without legal process (Id.); (7) Defendants intentionally trespassed into the Plaintiffs’ rental units, and willfully deprived each Plaintiff of peaceful possession of their units, locking Plaintiffs out, and using self-help (Id. at ¶ 40); (8) Plaintiffs protested this action, refused to give up their tenancies, and in some cases, continued to pay rent even after Defendants wrongfully locked them out of their homes (Id.); (9) Defendants knew that Plaintiffs could only be evicted by legal process and only on one of the grounds enumerated in Los Angeles Municipal Code section 151.09 A (Id. at ¶ 39); (10) Defendants did not obtain clearance for renovation work (Id. at ¶ 45); (11) Defendants failed to obtain a permit for primary renovation work currently taking place at the Subject Property (Id. at ¶ 46); (12) Defendants made it explicitly clear that Plaintiffs would not be allowed to return to their units (Id.); and (13) Defendants locked Plaintiffs out their rental units and converted Plaintiffs’ property to their own use and refused to allow the Plaintiffs access to their personal property unless they signed a release. (Id. at ¶ 49.) The Court finds that these allegations are not sufficient enough to warrant the imposition of punitive damages.

Therefore, the Court GRANTS Moving Defendant’s motion to strike with 20 days leave to amend.

MOTION FOR SANCTIONS

Moving Defendant filed a motion for sanctions pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 including dismissal of the first, third, fourth, fifth, and sixth causes of action, as well as an order to pay attorneys’ fees and costs in the amount of $6,185.00, jointly and severally, against Plaintiffs and their counsel of record—Frances M. Campbell, Nina Farahani, and Campbell & Farahani, LLP. Moving Defendant contends that Plaintiffs are pursuing frivolous causes of action in their pleading without a good faith basis for believing they can prevail on such causes of action.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Plaintiffs’ evidentiary objections numbers 1-7 to the declaration of Daniel Carrillo in support of Moving Defendant’s motion for sanctions.

JUDICIAL NOTICE

The Court incorporates the recitation of legal principles from the Court’s discussion above with respect to judicial notice in connection with the demurrer to the complaint and applies those legal principles with respect to judicial notice in connection with Moving Defendant’s motion for sanctions.

The Court GRANTS Moving Defendant’s request for judicial notice numbers 1, 2, 3, and 4. The Court DENIES Moving Defendant’s request for judicial notice numbers 5 and 6.

DISCUSSION

California Code of Civil Procedure, Section 128.7(c)(1) says that a motion for sanctions “shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” “There is a safe-harbor provision of section 128.7 with which the moving party must comply in bringing a sanctions motion.” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 920.) The purpose of the safe-harbor period “is to permit the offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period.” (Id.) “[T]he party seeking sanctions must serve the motion on the opposing party without filing or presenting it to the court. Service of the motion initiates a 21-day (formerly a 30-day) hold or safe harbor period.” (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 124.) “[T]he safe harbor period is mandatory and the full 21 days must be provided absent a court order shortening that time if sanctions are to be awarded.” (Id. at 125.)

The Court finds that Moving Defendant has not complied with the safe harbor requirement. First, the only proof of service filed in connection with Moving Defendant’s motion for sanctions indicates that the motion was filed and served on Plaintiffs on February 4, 2020. Moving Defendant’s notice of motion, however, states that Plaintiffs’ counsel was served with an unfiled motion on January 9, 2020. (Motion at 3:10-13.) None of the declarations lodged by Moving Defendant in connection with his motion for sanctions indicates when the unfiled motion for sanctions was served on Plaintiffs’ counsel. There was no proof of service filed in connection with the unfiled motion for sanctions.

Given that the only proof of service filed in connection with Moving Defendant’s motion for sanctions indicates that the motion for sanctions was served on Plaintiffs’ counsel on February 4, 2020 which is the same day the motion was filed with the Court, the Court finds that Moving Defendant’s motion is procedurally improper. The 21-day safe harbor period was not complied with.

Although the Court need not address the substance of Moving Defendant’s motion due to the lack of procedural compliance as indicated above, the Court finds that Moving Defendant repeats some of the same arguments in his motion for sanctions with respect to the causes of action as he raised in his demurrer to the complaint. As indicated above in connection with demurrer, some of the causes of action in the complaint state sufficient facts to constitute a cause of action.

Therefore, the Court DENIES WITHOUT PREJUDICE Moving Defendant’s motion for sanctions.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 2nd day of March 2020

Hon. Holly J. Fujie

Judge of the Superior Court