Case Name: Tanghe v. Yiu, et al.
Case No.: 2017-1-CV-315557

According to the allegations of the complaint, plaintiff John Tanghe (“Plaintiff”) subleased a music studio space from defendant David Nevin (“Nevin”). (See complaint, ¶ 12.) Defendants Kong Yin Yiu (“Kong”), Simon Yiu (“Simon”) and Excel Property Management, Inc. (“Excel”) (collectively, “demurring defendants”) are the owners of the property. (See complaint, ¶ 13.) Nevin was given a 3 day notice to pay rent or quit by Simon; apparently, Nevin did not pay as, on September 2, 2015, Simon posted a notice of eviction as to Nevin and any subtenants, informing them that they would be evicted on September 9, 2015 due to Nevin’s failure to pay rent. (See complaint, ¶¶ 15-16.) Because Plaintiff was seriously ill, he did not visit the subject property when the notice to quit was posted. (See complaint, ¶ 17-18.) On September 9, 2015, Sheriff deputies executed the eviction and Simon had the locks on the property changed. (See complaint, ¶ 21.) On September 9, 2015, Nevin emailed Plaintiff that the notice to quit was posted on September 2, 2015 that stated that they had to vacate the premises by that day, and that Plaintiff’s last opportunity to move his equipment that was left in the room is Monday, September 14, 2015. (See complaint, ¶ 22.) When Plaintiff arrived at the subject property, he discovered his musical equipment stored at the property had been stolen. (See complaint, ¶¶ 26-28.) After the burglary, Plaintiff discovered that his stolen possessions were offered for sale by defendant The Starving Musician, a secondhand dealer of musical equipment. (See complaint, ¶ 30.) Plaintiff then contacted The Starving Musician and determined that the persons who sold his equipment to The Starving Musician were defendants Marcello Detro (“Detro”), Christopher Bengal (“Bengal”) and Stephanie Nava Fuller (“Fuller”). (See complaint, ¶ 31.) Defendants The Starving Musician, Tap Tempo, Vintage Caveman Music and Mark Chatfield (“Chatfield”) purchased some of Plaintiff’s stolen equipment knowing that the items were stolen. (See complaint, ¶¶ 32-36.) On September 7, 2017, Plaintiff filed a complaint against Kong, Simon, Excel, The Starving Musician, Tap Tempo, Caveman Vintage Music, Chatfield, Detro, Bengal, and Fuller, asserting causes of action for:

1) Breach of contract (against Nevin);
2) Wrongful eviction (against Nevin);
3) Negligence: failure to give adequate notice of eviction under Code of Civil Procedure §§ 1161 and 1162 (against Nevin, Kong, Simon and Excel);
4) Forcible entry in violation of Civil Code § 1159 (against Kong and Simon);
5) Negligence, negligence per se: failure to safely keep Plaintiff’s belongings post-eviction (against Nevin, Kong, Simon, Excel);
6) Conversion (against Kong, Simon, Excel);
7) Conversion (against Nevin);
8) Conversion (against The Starving Musician, Tap Tempo, Vintage Caveman Music, Detro, Bengal, Fuller, Chatfield);
9) Conversion (against Detro, Bengal, and Fuller);
10) Violation of Penal Code § 496 (against Detro, Bengal and Fuller); and,
11) Violation of Penal Code § 496 (against The Starving Musician, Tap Tempo, Caveman Vintage Music, and Chatfield).

Defendants Kong, Simon and Excel demur to the third through sixth causes of action.

Demurring defendants’ request for judicial notice

Demurring defendants request judicial notice of the following documents:

1) The lease of the subject property between Excel and Black Fire LLC and The Metropolitan LLC (attached as Exhibit A);
2) The 3 Day Notice to Pay Rent or Quit and election for forfeiture, dated May 8, 2015, and proof of service (attached as Exhibit B);
3) The complaint—unlawful detainer, filed on June 2, 2015 in Excel Property Management, Inc. v. Black Fire LLC and The Metropolitan LLC, et al. (Super. Ct. Santa Clara County, 2015, No. 115CV281315) (“the unlawful detainer action”) (attached as Exhibit C);
4) Declaration regarding due diligence, dated June 18, 2015 (attached as Exhibit D);
5) Order granting Ex Parte Application for Order to Serve Summons by Posting for Unlawful Detainer in the unlawful detainer action (attached as Exhibit E);
6) Request for, and Entry of Default in the unlawful detainer action (attached as Exhibit F);
7) Judgment in the unlawful detainer action (attached as Exhibit G);
8) Writ of possession in the unlawful detainer action (attached as Exhibit H);
9) Proof of service of the writ of execution in the unlawful detainer action (attached as Exhibit I);
10) Eviction information for property owners in the underlying action.

The complaint, the declaration regarding due diligence, the writ of possession, the proof of service and eviction information for property owners in the unlawful detainer action are proper subjects for judicial notice. Plaintiff neither disputes the authenticity of these documents, nor otherwise argues that they are improper subjects for judicial notice. Demurring defendants’ request for judicial notice as to these documents is GRANTED as to their existence. (See Evid. Code § 452, subd. (d); see also Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 (stating that “a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file… [a] court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments”).) As to the order granting Ex Parte Application for Order to Serve Summons by Posting for Unlawful Detainer, and the judgment in the unlawful detainer action, the request for judicial notice is GRANTED. As to the 3 Day Notice to pay Rent or Quit and the lease, these are not proper subjects for judicial notice as there is nothing to indicate that they are a record of the court or a fact or proposition that is not reasonably subject to dispute. Accordingly, the request for judicial notice as to these documents is DENIED.

Third cause of action for negligence: failure to give adequate notice of eviction under Code of Civil Procedure sections 1161 and 1162

The third cause of action alleges that demurring defendants breached their duty to give adequate notice of the notice to quit. Here, there is no allegation that demurring defendants had any knowledge that Plaintiff was in possession of the property. The third cause of action also alleges that demurring defendants did in fact give notice to the tenant, Nevin. In opposition, Plaintiff refers to the lease of which demurring defendants seek judicial notice, stating: “it bears stating that the lease attached to Defendants’ RJN purports to have been signed by David Nevin as an authorized representative of Black Fire, LLC and The Metropolitan, LLC…. If Defendants contend that Mr. Nevin was only an authorized representative of the true master tenant, then Plaintiff must be granted leave to amend his complaint to allege that Mr. Nevin was acting as Black Fire and Metropolitan’s authorized representative in extending a sub-tenancy to Mr. Tanghe.” (Opposition, p.5:7-13.) Plaintiff apparently concedes that Nevin was served with the notice to quit on May 8, 2015 as it is not addressed in his opposition. Plaintiff also states that he “does not contend that the Yiu Defendants’ failure to give notice affected his ability to bring an unlawful detainer action. The issue of contention in the Complaint is Defendants’ civil liability for failing to give notice to Mr. Tanghe as required by the Code.” (Opposition, p.7:13-16.) However, Plaintiff does not cite to any authority suggesting that he may maintain such an 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”).) As noted by demurring defendants, the unlawful detainer statutes provide a means for an occupant not named in the judgment to claim possession and cure the breach. (See Code Civ. Proc. § 1162, 1174.3.) Plaintiff apparently concedes that he did not avail himself of these provisions. The Court is unaware of—and Plaintiff has not cited to any authority—suggesting that a party may maintain a separate cause of action for violation of the unlawful detainer statutes. The demurrer to the third cause of action is SUSTAINED without leave to amend as to demurring defendants.

Fourth cause of action for forcible entry

The fourth cause of action alleges that demurring defendants “are liable for forcible entry under Civil Code § 1159 in that Plaintiff had possession of the property as a subtenant during the time Defendants locked Plaintiff out of the building entrance and also removed the lock on Plaintiff’s rented music studio….” (Complaint, ¶ 48.) However, as demurring defendants argue, “a landlord is not liable for forcible entry and detainer if he evicts a tenant under a valid writ of execution issued under an enforceable judgment.” (Bedi v. McMullan (1984) 160 Cal.App.3d 272, 275, citing Hamilton v. Waters (1949) 93 Cal.App.2d 866, 867.) Judicially noticeable facts indicate that there is an enforceable judgment. Again, Plaintiff fails to cite to any authority suggesting that he may maintain a cause of action for forcible entry pursuant to the unlawful detainer statutes in an action outside the unlawful detainer 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 fourth cause of action is SUSTAINED without leave to amend as to demurring defendants.

Fifth cause of action for negligence, negligence per se: failure to safely keep Plaintiff’s belongings post-eviction in violation of Code of Civil Procedure § 1174

The fifth cause of action alleges that Kong violated Code of Civil Procedure section 1174 by failing to store Plaintiff’s personal property in a place of safekeeping until it was released. As with the third and fourth causes of action, Plaintiff cannot state a separate cause of action for violation of section 1174 of the unlawful detainer statutes. Moreover, the complaint alleges that Kong locked the subject property after hiring a locksmith to change the locks. As stated in Plaintiff’s opposition, “the unit was not accessible from the outside.” (Opposition, p.8:24.) Subdivision (g) of section 1174, upon which Plaintiff relies, states: “The landlord shall store the personal property in a place of safekeeping until it is either released pursuant to subdivision (h) or disposed of pursuant to subdivision (h).” (Code Civ. Proc. § 1174, subd. (g).) The complaint does not allege a violation of section 1174. Nevertheless, although the allegations of the complaint fail to state facts sufficient to constitute a cause of action, and although Plaintiff fails to articulate how he might amend his complaint to state a viable cause of action, it may be possible for Plaintiff to allege a negligence cause of action not based on section 1174. The demurrer to the fifth cause of action is SUSTAINED as to demurring defendants with 10 days leave to amend after notice of entry of this signed order.

Sixth cause of action for conversion

“The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages.” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543-44.) Here, judicially noticeable facts indicate that demurring defendants did not convert the subject property by a wrongful act or disposition of property rights. Rather, demurring defendants filed an unlawful detainer action, obtained a judgment, and a writ of execution was issued. Nevin informed Plaintiff that Plaintiff had the opportunity to take his equipment. This does not reflect any assertion of ownership by demurring defendants. In opposition, Plaintiff does not state any facts suggesting that he can amend this cause of action to state a viable claim. (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 as to demurring defendants.

The Court will prepare the Order.