Haley Christina Thomas et al vs Jill Dore-Kent et al

Case Number

23CV02736

Case Type

Hearing Date / Time

Fri, 04/26/2024 - 10:00

Nature of Proceedings

Motion to Strike

Tentative Ruling

For the reasons set forth herein, defendants’ motion to strike plaintiffs’ third amended complaint is denied. Defendants shall file and serve an answer to the third amended complaint no later than May 17, 2024.

Background: 

This action commenced on June 27, 2023, by the filing of the complaint by plaintiffs Haley Christina Thomas and Alexandre Hort (collectively “plaintiffs”) against defendants Jill Dore Kent and Martin Mielko (collectively “defendants”) setting forth 10 causes of action.

On August 8, 2023, plaintiffs filed their first amended complaint. On October 23, 2023, plaintiffs filed their second amended complaint (“SAC”) setting forth causes of action for: (1) Breach of contract; (2) Violation of State statutes; (3) Violation of municipal ordinances; (4) Constructive eviction; (5) Negligence; (6) Private nuisance; (7) Unfair business practices; and (8) Breach of the covenant of quiet enjoyment.

Defendants filed a demurrer and motion to strike the SAC, and on March 8, 2024, the court partially sustained the demurrer and partially overruled the demurrer. The motion to strike was denied in its entirety. The demurrer to the first cause of action for breach of contract was sustained with leave to amend and otherwise overruled. Plaintiffs were ordered to file and serve their third amended complaint (“TAC”) no later than March 29, 2024. March 29, 2024 was a Friday.

Plaintiffs filed their TAC on Tuesday, April 2, 2024, setting forth causes of action for: (1) Breach of contract; (2) Violation of State statutes; (3) Constructive Eviction; (4) Negligence; (5) Unfair business practices; and (6) Breach of the covenant of quiet enjoyment.

As alleged in the TAC:

Plaintiffs were residential tenants of defendants at property located at 312 E. Sola Street in Santa Barbara. (TAC, ¶ 1.) Defendant Dore-Kent was the sole owner of the property. (TAC, ¶ 5.) Defendant Mielko was the agent, property manager, and employee of Kent. (TAC, ¶ 6.)

Plaintiffs and defendants entered into a residential lease for the property on August 16, 2021. (TAC, ¶ 12 & Exh. A.) Under the lease, defendants were required to provide a dwelling fit for plaintiffs’ residential use. (TAC, ¶ 13 & Exh. A.)

“Throughout the course of Plaintiffs’ tenancies, Defendants, and each of them, allowed the Premises, and Plaintiffs’ Unit, to deteriorate to the extent that living at the Premises was not only untenable practically, but presented, for example, enormous health risks, such as with sewage cascading down the interior of the Premises’ walls, severe water intrusion in multiple rooms of the Unit, and including a visually and trepidatiously sagging ceiling.” (TAC, ¶ 14.) Defendants failed to remediate the deteriorations or other habitability issues. (TAC, ¶¶ 15-24.)

In May 2022, plaintiffs informed defendants of a water intrusion, possible mold, and sewage in the kitchen of the property. (TAC, ¶ 25.) Plaintiffs received no response from defendants during ten days of attempting to report the issues. (Ibid.) On July 2, 2022, defendants responded to plaintiffs by serving a 3-Day Notice to Quit. (TAC, ¶ 27.)

Defendants filed and served an unlawful detainer action against plaintiffs which was later dismissed by way of demurrer. (TAC, ¶ 29.)

“Defendants, and each of them, had a design not only to actually evict Plaintiffs for their habitability complaints, but performed a constructive eviction of Plaintiffs in order to avoid remediation costs, to avoid tenant buyouts, to avoid move out costs, to avoid statutory or local ordinance entitlements, and so on, and chose instead to reap the profit, benefits and rewards of forcing tenants to move rather than engage in legally required rehabilitative efforts.” (TAC, ¶ 38.)

Defendants now move to strike the TAC solely on the grounds that the TAC was not filed within the time allowed by the court.

Plaintiffs oppose the motion.

Analysis:

Defendants argue that, because plaintiffs did not file the TAC by the court set deadline, plaintiffs were required to seek permission of the court to file an amended complaint. Defendants ignore the fact that plaintiffs were not only given permission to file an amended complaint, they were instructed as to which cause of action needed amendment. Defendants’ argument in this regard is without merit.

“The court may dismiss the complaint as to that defendant when: . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(2).)

“The statutory phrase “ ‘may dismiss’ ” unambiguously grants discretionary authority to trial courts. [Citations.]” (Nuno v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 807.)

“The decision to dismiss an action under [Code of Civil Procedure] section 581, subdivision (f)(2) rests in the sound discretion of the trial court and a reviewing court will not disturb the ruling unless the trial court has abused its discretion.” (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827.)

Plaintiffs were two days late in filing and serving the TAC. Plaintiffs’ counsel, Jeffrey B. Workman, has submitted a declaration in support of the opposition. With regard to why the TAC was late-filed, Workman declares that the error was the result of plaintiffs’ counsels’ emergency Court of Appeal briefing schedule.

Given that the TAC was filed a mere two court days late, and there is no showing of prejudice, the court will exercise its discretion and allow the filing of the TAC. Defendants’ motion to strike will be denied. However, counsel is reminded that they are expected to strictly abide by the courts orders continuing forward.