Case Name: Tammy Halfmann, et al. v. Jayme Destafani Kabelac, et al.

Case No.: 1-14-CV-274019

This action arises out of plaintiffs Tammy Halfmann and Keith Ryser’s (collectively “Plaintiffs”) prior occupation and rental of a barn conversion on property owned by defendants Jayme Destafani Kabelac (“Ms. Kabelac”) and Joe Destafani (collectively “Defendants”) and located at 14115 Foothill Avenue, San Martin, California 94046 (the “Property”).

On December 3, 2014, Plaintiffs filed the operative complaint against Defendants, alleging causes of action for: (1) nuisance; (2) negligence; (3) intentional infliction of emotional distress (“IIED”); (4) negligent infliction of emotional distress (“NIED”); (5) fraud and deceit; (6) violation of Civil Code section 1941; (7) violation of Civil Code section 1940.2; (8) violation of Civil Code section 1942.5, subdivision (c); (9) breach of warranty; (10) unjust enrichment; (11) violation of 18 U.S.C. section 1961 (i.e., Racketeering Influenced and Corrupt Organizations Act (hereinafter “RICO”)); (12) violation of Civil Code section 1954; (13) violation of Government Code section 12900; (14) forcible entry under Code of Civil Procedure section 1159; (15) forcible detainer under Code of Civil Procedure section 1160, subdivision (1); and (16) forcible detainer under Code of Civil Procedure section 1160, subdivision (2).

Currently before the Court is the demurrer by Defendants to the complaint. Defendants demur to each and every cause of action of the complaint on the grounds of failure to allege facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, (e), (f).)

“In reviewing the sufficiency of a complaint against a general demurer, 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.)

Defendants’ request for judicial notice of the complaint filed in this action on December 3, 2014, the complaint filed in the limited jurisdiction case of Tammy Halfmann, et al. v. Jayme Destafani, et al. (Santa Clara County Superior Court, Case No. 514-CV-008206) (the “Prior Action”) on May 30, 2014, the Notice of Decision filed in the Prior Action on August 8, 2014, the Judgment filed in the Prior Action on August 18, 2014, and the Order to Correct a Clerical Error in the Judgment and Enter a New Judgment filed in the Prior Action on September 15, 2014, is GRANTED. (See Evid. Code, § 452, subd. (d) [judicial notice of court records].)

With respect to the demurrer on the ground of uncertainty, Defendants argue that each and every cause of action of the complaint is “fatally vague” because the complaint does not clearly state whether the claims are based on “events leading up to the Court’s September 15, 2014 judgment in their prior action … or for events following the Court’s judgment.” (Mem. Ps & As., p. 5:21-28.) While the complaint is far from a model pleading, the complaint is not so unintelligible as to render it impossible for Defendants to respond. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].) Accordingly, the demurrer to the first through sixteenth causes of action on the ground of uncertainty is OVERRULED.

With respect to the demurrer on the ground of failure to allege facts sufficient to constitute a cause of action, Defendants argue that each cause of action in the complaint is barred by the doctrine of res judicata because Plaintiffs litigated the same claims in the Prior Action. The doctrine of res judicata precludes parties or their privies from re-litigating an issue that has been finally determined by a court of competent jurisdiction. (See Levy v. Cohen (1977) 19 Cal.3d 165, 171.) Res judicata applies if: (1) a claim or issue in the present proceeding is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (See Zevnik v. Super. Ct. (2008) 159 Cal.App.4th 76, 82-83; see also Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974.) In assessing whether the issue litigated in the prior proceeding is “identical” to the issue that is being litigated subsequently, courts examine the scope of the cause of action to determine if it encompasses the same primary right in both proceedings regardless of whether the cause of action is different. (See Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896; see also Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674-1675.) The focus is on the harm suffered, as opposed to the particular legal theory asserted by the litigant. (See Bay Cities Paving & Grading v. Lawyers’ Mutual Insurance Co. (1993) 5 Cal.4th 854, 860.) In addition, “[r]es judicata bars the relitigation not only of claims that were conclusively determined in the first action, but also matter that was within the scope of the action, related to the subject matter, and relevant to the issues so that it could have been raised.” (See Burdette v. Carrier Corp., supra, 158 Cal.App.4th at pp. 1674-1675.)

Here, the first, second, third, fourth, fifth, sixth, eighth, ninth, and tenth causes of action are primarily based upon the harm suffered by Plaintiffs due to Defendants’ alleged failure to make necessary repairs to the Property and maintain habitable living conditions during the term of Plaintiffs’ tenancy. (See Complaint, ¶¶ 19-20, 24 [stating that the first cause of action for nuisance is based on Defendants’ failure to repair substandard living conditions and retaliatory conduct (i.e. raising the rent and threatening eviction) in response to Plaintiffs’ demand that repairs be performed], 33-36 [stating that the second cause of action for negligence is based on Defendants’ breach of their duties to provide a safe and sanitary dwelling, make timely and reasonable repairs, and honor the warranty of habitability, amongst others], 46-51 [stating that the third cause of action for IIED is based on Defendants’ failure to provide habitable living conditions and to make repairs], 64 [stating that the fourth cause of action for NIED is based on Defendants’ neglect of the Property and allowance of substandard conditions], 71-76 [stating that the fifth cause of action for fraud and deceit is based on Defendants’ intentional concealment and misrepresentation of material facts regarding the health, safety, and habitability of the Property], 83-88 [stating that the sixth cause of action for failure to maintain habitable conditions in violation of Civil Code section 1941 is based on Defendants’ failure to make the premises fit for human occupation or repair the premises as needed], 103-107 [stating that the eighth cause of action for violation of Civil Code section 1942.5, subdivision (c) is based on the harm suffered by Plaintiffs as a result of Defendants’ retaliation against Plaintiffs (i.e., decreasing services and causing Plaintiffs to involuntarily quit) for exercising their right to request reasonable and necessary repairs], 114-122 [stating that the ninth cause of action for breach of warranty is based on Defendants’ breach of the warranty of habitability], and 127-128 [stating that the tenth cause of action for unjust enrichment is based on Defendants’ receipt of monies for their implied promise to provide a habitable dwelling and Defendants’ breach of that promise].) These issues are not identical to the issues litigated in the Prior Action as the Prior Action involved the harm suffered by Plaintiff as a result of Defendants’ forcible entry and detainer on May 17, 2014, and scope of that action pertained solely to Plaintiffs’ right to possession of the Property and damages that Plaintiffs sustained as a result of Defendants’ interference with that right. (See Defendants’ RJN, Exs. 2-5; see also Jordan v. Talbot (1961) 55 Cal. 2d 597, 604 [“[The] action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by defendant — the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right.”]; see generally Lasserot v. Gamble (1896) 46 P. 917.) Thus, the first, second, third, fourth, fifth, sixth, eighth, ninth, and tenth causes of action are not barred by the doctrine of res judicata.

The seventh cause of action for violation of Civil Code section 1940.2 is based on allegations that Defendants robbed, blackmailed, extorted, threatened, intimidated, harassed, and verbally abused Plaintiffs and failed to make repairs to the Property for the purpose of influencing Plaintiffs to vacate their dwelling. (See Complaint, ¶ 95.) The thirteenth cause of action for violation of Government Code section 12900 (i.e., Fair Employment and Housing Act (“FEHA”)) is based upon the harm suffered by Plaintiffs as a result of Defendants’ discriminatory and harassing conduct (i.e, denying Plaintiffs’ request for reasonable repairs) based on Plaintiffs’ race. (See Complaint, ¶ 152-153.) The eleventh cause of action for RICO violations is based upon the harm suffered by Plaintiffs due to Defendants’ ongoing pattern of racketeering activity (i.e., mail fraud) to avoid enforcement of applicable habitability laws and defraud and/or deprive Plaintiffs of their right to a habitable dwelling. (See Complaint, ¶¶ 133-139.) These issues are not identical to the issues litigated in the Prior Action and these causes of action are outside the scope of the Prior Action as the Prior Action pertained solely to Plaintiffs’ right to possession of the Property and damages that Plaintiffs sustained as a result of Defendants’ interference with that right. (See Defendants’ RJN, Exs. 2-5; see also Jordan v. Talbot, supra, 55 Cal. 2d at p. 604.) Thus, the seventh, eleventh, and thirteenth causes of action are not barred by the doctrine of res judicata.

The fourteenth cause of action for forcible entry under Code of Civil Procedure section 1159 and the fifteenth cause of action for forcible detainer under Code of Civil Procedure section 1160, subdivision (1) are barred by the doctrine of res judicata because they are based upon the harm suffered by Plaintiffs as a result of Defendants’ forcible entry and detainer on May 17, 2014, which is identical to the issues litigated in the Prior Action. (See Complaint, pp. 21-22, ¶¶ 1-15.) Plaintiffs’ argument that the fourteenth and fifteenth causes of action are based a “second Forcible Detainer occurring when Defendants locked the only gates to the Subject Premises after Plaintiffs took back possession on 9/15/14” is not well taken. (Opp’n., p. 4:4-7.) The fourteenth cause of action only incorporates paragraphs 1 through 10 of the complaint, which contain allegations pertaining solely to the May 17, 2014 forcible entry and detainer. (See Complaint, ¶¶ 1-10.) Additionally, while the fifteenth cause of action also incorporates paragraphs 11 through 16 of the complaint, which contain allegations regarding the locking of the gates following the entry of the September 15, 2014 judgment in the Prior Action, the cause of action is specifically limited to Defendants’ conduct on May 17, 2014. (See Complaint, p. 22, ¶ 10.)

The sixteenth cause of action for forcible detainer under Code of Civil Procedure section 1160, subdivision (2) is not barred by the doctrine of res judicata because it incorporates paragraphs 1 through 25 of the complaint, which contain allegations regarding the locking of the gates following the entry of the September 15, 2014 judgment in the Prior Action, and does not contain any language expressly limiting the claim to Defendants’ conduct on May 17, 2014. (See Complaint, pp. 22-23, ¶¶ 16-25; see also Neil Norman v. William Kasper & Co. (1983) 149 Cal.App.3d 942, 947 [noting that the doctrine of res judicata does not apply where there are changed conditions and new facts not in existence at the time of the prior judgment].)

Furthermore, Defendants persuasively argue that the fifth cause of action for fraud and deceit and the eleventh cause of action for RICO violations fail to allege facts sufficient to constitute a cause of action because they are not pled with the requisite specificity and do not state when and in what manner (i.e., orally, by mail, or by email) the fraudulent representations were made. (See Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645 [stating that the specificity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered]; see also Sanford v. MemberWorks, Inc. (9th Cir. 2010) 625 F.3d 550, 558 [stating that when a RICO claim is predicated on fraud the plaintiff must “state with particularity the circumstances constituting the fraud,” including “the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.”].)

Accordingly, the demurrer to the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth, and sixteenth causes of action on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED. The demurrer to the fifth, eleventh, fourteenth, and fifteenth causes of action on the ground of failure to allege facts sufficient to constitute a cause of action is SUSTAINED, with 10 days’ leave to amend.