Nicholas Vinan v. Nilson Froula, et al
Nicholas Vinan v. Nilson Froula, et al
Case Number
23CV03585
Case Type
Hearing Date / Time
Wed, 05/15/2024 - 10:00
Nature of Proceedings
1. Plaintiff and Cross-Defendant Nicholas Vinan’s Demurrer to Fifth Cause of Action of First Amended Cross-Complaint; 2. Plaintiff and Cross-Defendant Nicholas Vinan’s Motion to Strike Prayer for Punitive and Exemplary Damages from First Amended Cross-Com
Tentative Ruling
For Plaintiff and Cross-Defendant Nicholas Vinan: Michael B. Damen
For Defendants and Cross-Complainants Nilson Froula and Laurie Froula: Lacy L. Taylor
For Defendant Garth Froula: Self-Represented
RULING
For the reasons set forth herein:
- Cross-Defendant Nicholas Vinan’s demurrer to the fifth cause of action, for trespass, of the first amended cross-complaint is sustained with leave to amend.
- Cross-Defendant Nicholas Vinan’s motion to strike prayer for punitive and exemplary damages from the first amended cross-complaint is granted with leave to amend.
- Defendants and Cross-Complainants Nilson Froula and Laurie Froula shall file and serve their second amended complaint no later than June 5, 2024.
Background
This action commenced on August 17, 2023, by the filing of the complaint by Plaintiff Nicholas Vinan against Defendants Nilson Froula (“Nilson”), Laurie Froula (“Laurie”), and Garth Froula (“Garth”) setting forth 26 causes of action. (Note: Due to Defendants having a common surname they will be referred to by their first names. No disrespect is intended.)
As summarized: The complaint relates to a dispute over Plaintiff renting and sub-leasing residential property located at 1521 La Vista Del Oceano in Santa Barbara from Defendants Nilson and Laurie. The original rental agreement was entered into in September 2017, and included an accessory dwelling unit (“ADU”). The amount of rent was $4,300.00 for the initial one-year term beginning on September 14, 2017. The rental property consisted of an “upper house” and a “lower house.” None of the written disclosures required by California law were provided to Plaintiff.
In July 2018, Laurie represented to Vinan that Vinan was free to sublease rooms in both the upper house and lower house and verbally offered to continue renting the upper house to Plaintiff beyond the initial one-year period. In reliance on Laurie’s representations, Vinan leased the lower house to three of his friends. In January 2019, two of the lower house tenants moved into the upper house and Vinan located new tenants for the lower house.
Vinan complained to the Defendants about a termite infestation in 2019, and Defendants raised the rent for the lower house in an amount that exceeded the limits of the Tenant Protection Act. By 2022, Vinan and his subtenants complained about numerous problems at the property including the presence of mold, rats, and electrical problems. Defendants responded by threatening to increase the rent by $1,500.00. On March 2, 2022, Laurie announced that the rent would be increased by $890.00. The amount again exceeded the maximum allowed by the Tenant Protection Act.
Following a series of events related to rental increases and continued issues with the rental properties, Vinan obtained a mold inspection report, showing that mold was still present. Defendants responded by generating a retaliatory “landlord’s notice of termination” which imposed an early termination of the lease on October 1, 2022. The notice of termination did not comply with the Tenant Protection Act or the Santa Barbara Municipal Code.
Thereafter, Defendants began contacting the subtenants directly and solicited rent from them in lieu of the subtenants’ obligations to pay Vinan.
On September 29, 2022, a code compliance officer for the City of Santa Barbara inspected the rental properties and discovered numerous violations of the Santa Barbara Municipal Code and the Health and Safety Code. The code compliance officer told Vinan that Vinan had to immediately move out of his living quarters in the ADU, which resulted in Vinan being forced to sleep on an inflatable mattress in the upper house.
On October 3, 2022, the code compliance officer conducted another inspection of the properties and discovered numerous additional violations of the City of Santa Barbara Municipal Code and the Health and Safety Code. The inspections resulted in the entire lower house being deemed uninhabitable and it was “red-tagged” by the City on October 3, 2022. The subtenants were told that they had to immediately vacate the lower house by the end of the day. As a result, the four subtenants had to move into the upper house and temporarily reside there with Vinan and other existing tenants.
The red-tagging of the lower house triggered the right of the displaced subtenants to seek relocation assistance payments in an amount equal to three months of their rent. Following a mediation with the Santa Barbara Rental Housing Mediation Program, the parties agreed to pay the subtenants $9,600.00 total, of which Vinan paid half. Among other things, Vinan seeks reimbursement for his payment to the subtenants as well as an amount paid towards a security deposit.
Laurie and Garth (who is Laurie and Nilson’s son) also began retaliating against Vinan by verbally harassing and threatening Vinan. They also showed up at the rental property without any prior notice. Laurie and Nilson authorized and instructed Garth to act as their agent, begin unlicensed construction and repair work at the property, repeatedly showed up to work on the property without notice, moved into the rental property, and brought a vicious dog to live with him at the property, without obtaining Vinan’s permission.
When Garth moved into the property, he would bully and intimidate Vinan and took over the master bedroom. The hostility eventually led to Garth committing assault and battery against Vinan. Laurie also struck Vinan. When Vinan’s mother spoke up, Laurie struck her as well. Police were called for both incidents. Other specific details regarding alleged incidents and damages are set forth throughout the complaint.
On December 21, 2023, Defendants filed an answer to the complaint asserting a general denial and setting forth 44 affirmative defenses.
Also on December 21, 2023, Nilson and Laurie filed a cross-complaint setting forth causes of action for: (1) Breach of contract; (2) Fraud in the inducement; and (3) Breach of the covenant of good faith and fair dealing.
On February 29, 2024, Nilson and Laurie filed the operative first amended cross-complaint (“FACC”) against Vinan, setting forth causes of action for: (1) Breach of contract; (2) Breach of the covenant of good faith and fair dealing; (3) Restitution - unjust enrichment; (4) Waste; and (5) Trespass to land.
Vinan demurs to the fifth cause of action in the FACC, for trespass, on the grounds that “the Fifth Cause of Action alleged in said First Amended Cross-Complaint fails to state facts sufficient to constitute a cause of action; is contradicted by the Lease Agreement attached to the First Amended Cross-Complaint, is vague, ambiguous, is therefore uncertain, and fails to conform to the laws of this State.” (Notice of Demurrer, p. 2, ll. 1-7.)
Vinan also moves to strike prayer for relief No. 3 for punitive and exemplary damages on the grounds that “Cross-Complainants have not alleged, and cannot allege, any act or conduct which entitles them to recover any punitive and exemplary fees against Cross-Defendant . . ..” (Notice of Motion to Strike, p. 2, ll. 12-17.)
Vinan opposes the demurrer and motion to strike.
Analysis
Demurrer
“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.)
“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.)
“[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 the fifth cause of action for trespass fails because it is contradicted by the lease agreement attached to the FACC as “Exhibit A.” The lease agreement, between Nilson and Laurie (as landlords) and Vinan (as “Master Tenant”), sets forth a term that begins on April 1, 2022, and terminates on April 1, 2023.
By way of the allegations in the FACC, Nilson and Laurie allege: “On or about July 20, 2022, Cross-Defendant agreed to vacate the Property on or before October 1, 2022. Cross-Defendant prepared a ‘Notice of Termination’ and requested the Cross-Complainants execute the ‘Notice of Termination.’ Despite Cross-Defendant’s statements that he wanted to vacate the Property on or before October 1, 2022, Cross-Defendant continued to occupy the Property.” (FACC, ¶ 39.) “Cross-Defendant continued to occupy the Property after the termination date indicated in the notice Cross-Defendant, himself, prepared. Cross-Defendant substantially interfered with Cross-Complainant’s possessory interest in the Property. Cross-Defendant ceased paying rent at the Property, and thereafter refused to relinquish possession of the Property.” (FACC, ¶ 40.)
“ ‘Trespass is an unlawful interference with possession of property.’ ” [Citation.] The elements of trespass are: (1) the Plaintiff’s ownership or control of the property; (2) the Defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the Defendant’s conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262.)
Vinan argues that because the lease agreement contradicts the language in the complaint, regarding the date he was to vacate the property, that there is no lack of permission and no interference with Nilson and Laurie’s exclusive possessory rights. There appears to be no dispute that Vinan vacated the property before April 1, 2023, but after October 1, 2022.
The lease agreement includes: “This Lease may only be amended or modified by a written document executed by the Parties.” (Lease Agreement, p. 4.) Nilson and Laurie do not allege the existence of a written document executed by the parties to modify the lease. They simply allege that Vinan agreed to vacate the property on or before October 1, 2022, and that he prepared a Notice of Termination. There is no allegation that the document was executed.
“(a) A contract in writing may be modified by a contract in writing.
“(b) A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.
“(c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions.
“(d) Nothing in this section precludes in an appropriate case the application of rules of law concerning estoppel, oral novation and substitution of a new agreement, rescission of a written contract by an oral agreement, waiver of a provision of a written contract, or oral independent collateral contracts.” (Civ. Code, § 1698.)
Here, there is no allegation that the lease agreement was actually modified by a contract in writing. There is no allegation that any oral agreement to vacate before October 1, 2022, was executed by the parties. There is no dispute that the lease agreement has language requiring any modifications to be in writing and there is no allegation of new consideration.
“Although a general demurrer does not ordinarily reach affirmative defenses, it “ ‘will lie where the complaint ‘ “has included allegations that clearly disclose some defense or bar to recovery.’ ” ’ [Citations.] “ ‘Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’ ” [Citations.]” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726.)
From the allegations contained in the FACC, admitting all material facts contained in the FACC and attached lease agreement, it clearly appears that Vinan has a complete defense to the fifth cause of action for trespass.
As such, the demurrer to the fifth cause of action for trespass, contained in the FACC, will be sustained. As it is reasonably likely that the cause of action is capable of amendment to state sufficient facts to constitute a cause of action, Nilson and Laurie will be given leave to amend.
Motion to Strike
“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Nilson and Laurie appear to concede that the only cause of action that potentially supports exemplary damages against Vinan is the fifth cause of action for trespass.
“As longstanding authority makes clear, punitive damages may be awarded in an action by a residential tenant based on the landlord’s interference with peaceful possession. [Citation.] Punitive damages likewise are recoverable for retaliatory eviction and for the infliction of emotional distress. [Citation.] Causes of action “ ‘for forcible entry and detainer’ ” and for “ ‘trespass also support the award of exemplary damages.’ ” [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.)
“ ‘To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the Defendant’s oppression, fraud, or malice.’ ” [Citation.] A claim “ ‘for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure.’ ” [Citation.] The claim may also be supported by showing “ ‘despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.’ ” (Civ. Code, § 3294, subd. (c)(1).) “ ‘To establish conscious disregard, the Plaintiff must show ‘ “that the Defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” ’ ” [Citation.] Conversely, punitive damages are not allowed in the absence of factual allegations “ ‘that Defendants intentionally, as opposed to negligently or mistakenly, disregarded Plaintiff’s right to possession or were aware that she had not received a notice to quit.’ ” [Citation.]” (Ibid.)
Because the demurrer to the fifth cause of action for trespass is being sustained with leave to amend, and Nilson and Laurie do not argue that the prayer for punitive damages would apply to any of their other causes of action, the motion to strike will be granted with leave to amend.