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

Case Number

23CV02736

Case Type

Hearing Date / Time

Fri, 09/06/2024 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

For the reasons set forth herein, defendants’ demurrer is overruled. Defendants shall file and serve their answers to the third amended complaint no later than September 26, 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”). 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 demur to the first cause of action for breach of contract arguing that the complaint fails to state facts sufficient to constitute a cause of action. Defendants also seek to have the TAC dismissed as to defendant Mielko.

Plaintiffs oppose the demurrer.

Analysis:

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

First of all: defendant’s notice is defective. “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc., § 430.60.) “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320(a).)

Defendants’ notice of demurrer states: “Defendants specially demurrers to the first cause of action for a failure to state facts sufficient to constitute a cause of action. The demurrer is based on the memorandum in support, the files and records in this action and any further evidence and argument that court may receive at or before the hearing.” (Notice, p. 2, ll. 1-4; typos in original.) In the body of the demurrer, it is clear that defendants are not demurring to the first cause of action for the stated reason (pursuant to Code of Civil Procedure section 430.10, subdivision (e)); defendants are demurring that the cause of action is uncertain pursuant to subdivision (f). Further, there is no mention at all of demurring on the grounds of misjoinder of Mielko contained in the notice.

In addition to the defective notice of demurrer, the demurrer will be overruled on substantive grounds as set forth below.

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Defendants argue that paragraph 46 of the TAC is uncertain.

Paragraph 46 of the TAC reads: “The written rental agreement between Plaintiffs and Defendants contained implied covenants that Defendants would provide Plaintiffs with the quiet use and enjoyment of the subject premises. Defendants, by their conduct alleged above, breached the covenant of quiet enjoyment as embodied in California Civil Code § 1927 and implied terms in the lease itself and are liable to Plaintiff for damages caused thereby, according to proof at trial.”

“ ‘[U]ncertain’ ” includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).)

“Demurrers for uncertainty . . . are disfavored. . . . A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

“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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Unlike the language contained in the SAC, which used the phrase “explicit terms in the lease itself,” the language in the TAC is not uncertain. “Explicit terms” implied that there is specific language included in the lease that plaintiffs were alleging defendants breached. The use of “implied terms” remedies the uncertainty of the allegations. As plaintiffs point out, the TAC repeatedly references the implied warranty of habitability which is included in every lease. The simple modification of the phrase successfully renders the breach of contract cause of action good as against a demurrer. The demurrer will be overruled.

Likewise, defendants request that the action against Mielko be dismissed, based on his misjoinder, will be denied. Defendants argue that Mielko is alleged to be the “agent, property manager, employee, and the like, of Defendant Kent,” and as such cannot be held personally liable.

“A demurrer is particularly unsuited to resolving questions of fact regarding the misjoinder of parties because “ ‘a demurrer lies only for defects appearing on the face of the pleadings [and] a defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied on; such objection must be taken by plea or answer.’ ” [Citation.]” (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 680.)

The allegations that Mielko was the “agent, property manager, employee, and the like, of Defendant Kent,” appeared in every version of the complaint filed by plaintiffs, beginning with the original complaint.

“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (Code Civ. Proc., § 430.41, subd. (b).)

Defendants make a factually unsupported argument that the allegations supporting misjoinder of Mielko did not appear until the TAC, as the result of plaintiffs removing their cause of action for violation of municipal codes that was present in previous versions of the complaint. The court has reviewed the prior allegations, specifically those related to violation of municipal codes, and finds defendants’ arguments unpersuasive. There is nothing in those allegations that would confer any more (or less) individual liability on Mielko than the allegations of the TAC.

Defendants could have raised misjoinder of Mielko by way of the prior demurrers. They did not do so and have waived their ability to do so now. The demurrer will be overruled.