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This case was last updated from Los Angeles County Superior Courts on 04/28/2021 at 00:48:31 (UTC).

DEANNA COLLINS, ET AL. VS MOSS MANAGEMENT SERVICES INC

Case Summary

On 03/16/2020 DEANNA COLLINS filed a Personal Injury - Other Personal Injury lawsuit against MOSS MANAGEMENT SERVICES INC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2533

  • Filing Date:

    03/16/2020

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiffs

COLLINS DEANNA

COLLINS SHARONNA

Defendant

MOSS MANAGEMENT SERVICES INC DBA 4565 HAZELTINE LLC

Attorney/Law Firm Details

Defendant Attorney

LOUIS LENA

 

Court Documents

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

4/26/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

3/18/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Declaration (name extension) - Declaration Declaration of Arnold W. Holaday re Meet and Confer Before Filing of Demurrer of Defendant Pursuant to CCP Section 430.41

3/18/2021: Declaration (name extension) - Declaration Declaration of Arnold W. Holaday re Meet and Confer Before Filing of Demurrer of Defendant Pursuant to CCP Section 430.41

Proof of Service by Mail - Proof of Service by Mail

2/18/2021: Proof of Service by Mail - Proof of Service by Mail

Amended Complaint - Amended Complaint (1st)

2/19/2021: Amended Complaint - Amended Complaint (1st)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - with Motion to Strike (CCP 430.10)) of 01/25/2021

1/25/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - with Motion to Strike (CCP 430.10)) of 01/25/2021

Reply (name extension) - Reply ISO Demurrer of Defendant Moss Management Services, Inc., To The Complaint of Plaintiffs

1/14/2021: Reply (name extension) - Reply ISO Demurrer of Defendant Moss Management Services, Inc., To The Complaint of Plaintiffs

Proof of Personal Service - Proof of Personal Service Amended

8/12/2020: Proof of Personal Service - Proof of Personal Service Amended

Declaration (name extension) - Declaration Declaration of Brian S. Mizell re Meet and Confer Before Filing of Demurrer of Defendant Pursuant to Code of Civil Procedure Section 430.41

8/27/2020: Declaration (name extension) - Declaration Declaration of Brian S. Mizell re Meet and Confer Before Filing of Demurrer of Defendant Pursuant to Code of Civil Procedure Section 430.41

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

8/27/2020: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

8/28/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Opposition (name extension) - Opposition Plaintiffs opposition to defendants demurrer

9/10/2020: Opposition (name extension) - Opposition Plaintiffs opposition to defendants demurrer

Opposition (name extension) - Opposition Plaintiffs opposition to defendants motion to strike

9/10/2020: Opposition (name extension) - Opposition Plaintiffs opposition to defendants motion to strike

Proof of Service by Mail - Proof of Service by Mail

9/11/2020: Proof of Service by Mail - Proof of Service by Mail

Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

5/14/2020: Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

Proof of Service by Posting - Proof of Service by Posting

3/25/2020: Proof of Service by Posting - Proof of Service by Posting

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/16/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

3/16/2020: First Amended Standing Order - First Amended Standing Order

14 More Documents Available

 

Docket Entries

  • 03/20/2023
  • Hearing03/20/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 09/13/2021
  • Hearing09/13/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 04/26/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 04/26/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 04/26/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 04/26/2021; Result Type to Held

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  • 03/18/2021
  • DocketDemurrer - without Motion to Strike; Filed by: Moss management services Inc (Defendant)

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  • 03/18/2021
  • DocketDeclaration Declaration of Arnold W. Holaday re Meet and Confer Before Filing of Demurrer of Defendant Pursuant to CCP Section 430.41; Filed by: Moss management services Inc (Defendant)

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  • 03/18/2021
  • DocketUpdated -- Demurrer - without Motion to Strike TO THK FIRST AMENDED COMPLAINT OF PLAINTIFFS;: Name Extension: TO THK FIRST AMENDED COMPLAINT OF PLAINTIFFS;; As To Parties: removed

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  • 03/18/2021
  • DocketUpdated -- Declaration Declaration of Arnold W. Holaday re Meet and Confer Before Filing of Demurrer of Defendant Pursuant to CCP Section 430.41: As To Parties: removed

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  • 03/18/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 04/26/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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  • 02/23/2021
  • DocketUpdated -- Amended Complaint (1st): Name Extension changed from (1st) to (1st); As To Parties changed from Moss management services Inc (Defendant) to Moss management services Inc (Defendant)

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22 More Docket Entries
  • 03/17/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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  • 03/17/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Deanna Collins (Plaintiff)

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  • 03/17/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Sharonna Collins (Plaintiff)

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  • 03/17/2020
  • DocketNon-Jury Trial scheduled for 09/13/2021 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 03/16/2020
  • DocketComplaint; Filed by: Deanna Collins (Plaintiff); Sharonna Collins (Plaintiff); As to: Moss management services Inc (Defendant)

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  • 03/16/2020
  • DocketCivil Case Cover Sheet; Filed by: Deanna Collins (Plaintiff); Sharonna Collins (Plaintiff); As to: Moss management services Inc (Defendant)

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  • 03/16/2020
  • DocketRequest to Waive Court Fees; Filed by: Deanna Collins (Plaintiff)

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  • 03/16/2020
  • DocketRequest to Waive Court Fees; Filed by: Sharonna Collins (Plaintiff)

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  • 03/16/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/16/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 20STLC02533    Hearing Date: April 26, 2021    Dept: 25

HEARING DATE: Mon., April 26, 2021 JUDGE /DEPT: Chilton/25

CASE NAME: Collins, et al. v. Moss Management Services, Inc.

CASE NUMBER: 20STLC02533 COMPL. FILED: 03-16-20

NOTICE: OK DISC. C/O: 08-14-21

DISC. MOT. C/O: 08-29-21

TRIAL DATE: 09-13-21

PROCEEDINGS: DEMURRER TO THE FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant Moss Management Services, Inc.

RESP. PARTY: None

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as April 21, 2021 [ ] Late [X] None

REPLY: None filed as April 21, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On March 16, 2020, Plaintiffs Deanna Collins (“Deanna”) and Sharonna Collins (“Sharonna”) (collectively, “Plaintiffs”) filed an action, in pro per, for general negligence and an unspecified intentional tort against Defendant Moss Management Services, Inc. dba 4565 Hazeltine, LLC (“Defendant”).

Defendant filed a demurrer and motion to strike on August 27, 2020. The Court sustained the demurrer without leave to amend as to the first cause of action for negligence and with 20 days’ leave to amend as to the second cause of action for intentional tort on January 25, 2021. (1/25/21 Minute Order.)

Plaintiffs filed a First Amended Complaint (the “FAC”) on February 19, 2021. Defendant filed the instant Demurrer to the First Amended Complaint (the “Demurrer”) on March 18. No opposition was filed.

II. Legal Standard

A. Demurrer

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Discussion

The Demurrer is accompanied by a declaration demonstrating Defendant’s counsel attempted to meet and confer with Plaintiffs but was unable to do so. (Dem., Holaday Decl., ¶¶ 4-5.)

A. First Cause of Action – Violation of Civil Code section 1940.2

Plaintiffs’ FAC alleges a single intentional tort cause of action based on Defendant’s violation of Civil Code section 1940.2. (FAC, p. 4, ¶ IT-1.)

Civil Code section 1940.2 states that it is unlawful for a landlord to do any of the following acts for the purpose of influencing a tenant to vacate a dwelling: (1) commit larceny; (2) commit extortion; (3) “[u]se, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person”; (4) commit a “significant and intentional violation of Section 1954,” which governs when a landlord may enter a tenant’s dwelling unit; or (5) threaten to disclose immigration or citizenship information. (Civ. Code, § 1940.2, subd. (a)(1)-(4).)

Plaintiffs allege the following: (1) that on May 13, 2013, Plaintiffs rented a unit from Defendant located at 4565 Hazeltine Ave., Sherman Oaks, CA 91423 (the “Unit”); (2) that the Unit had several maintenance issues, including a mold problem; (3) that Plaintiffs reported a busted pipe above Plaintiffs’ window to Defendants; (4) that the busted pipe was not repaired until Plaintiffs contacted the Health Department in January 2016; (5) that on February 19, 2016, Plaintiffs received a letter from Defendant stating they were responsible for the damages and that they had to relocate or would be sued; (6) that Defendant “used forceful action to remove Plaintiffs from the Unit for their financial gain”; (7) that Defendant wanted to remove Plaintiffs from the Unit to “remove the Unit from low-income housing” and rent it at market rate; and (8) that Plaintiffs suffered severe emotional distress and need therapy. (FAC, p. 4, ¶ IT-1, Exh. 1.)

Plaintiffs FAC does not allege any “forceful action” in violation of Section 1940.2. Their only cause of action appears to be largely based on the February 19, 2016 letter, which is attached to the FAC. The letter explains that by failing to take precautions to prevent mold damage to the Unit and failing to timely report it, Plaintiffs violated their lease agreement. (Id., Exh. 1.) The letter also notes the parties’ agreement that Plaintiffs would not be held liable for the damages to the Unit on the condition that the Unit be vacated and that Plaintiffs relocate to a different unit located at 7317 Sepulveda Blvd., in Van Nuys (the “Other Unit”). (Id.) Defendant would facilitate the relocation to the Other Unit. (Id.) The letter further noted that Defendant was waiting for Plaintiffs to submit certain documentation to ensure they were eligible for the Other Unit and warned that if the documentation was not received, then Defendant would be forced to serve a 3-Day Notice to Perform Covenant or Quit. (Id.)

Plaintiffs attach a copy of a Three Days’ Notice to Perform Conditions and Covenants or Quit dated March 8, 2016 and an Unlawful Detainer Stipulation and Judgment in Case No. 16B01217, filed with the court on June 28, 2016. (Id., Exhs. 2, 4-5.) Notably, “[t]he purpose of Civil Code section 1940.2 is to prohibit a landlord’s use of ‘ “ ‘constructive’ ” self-help eviction techniques’ [citation], such as theft, extortion, interference with a tenant’s quiet enjoyment, or trespass.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300-01.) The three-day notice and unlawful detainer stipulation are not self-help eviction techniques, but rather steps taken as part of the judicial eviction process.

The FAC also includes several other attachments without explanation, including emails, a text message screenshot, an official inspection report with an illegible date, three completely illegible exhibits, a copy of a rent stabilization bulletin, and what appear to be notes from a therapist. (FAC, Exhs. 6-12, 13-15.)

However, neither Plaintiffs’ allegations nor Plaintiffs’ attached exhibits demonstrate that Defendant committed larceny or extortion, that Defendant impermissibly entered Plaintiffs’ Unit, that Defendant did or threatened to disclose immigration information, or that Defendant otherwise used force, threats, or menacing conduct to force Plaintiffs to vacate the Unit.

Importantly, Plaintiffs have not filed an opposition demonstrating the FAC can be further amended to properly state a cause of action against Defendant.

Thus, Defendant’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

IV. Conclusion & Order

For the foregoing reasons, Defendant’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice.

Case Number: 20STLC02533    Hearing Date: January 25, 2021    Dept: 25

HEARING DATE:   Mon., January 25, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Collins, et al. v. Moss Management Services, Inc.

CASE NUMBER: 20STLC02533 COMPL. FILED: 03-16-20

NOTICE: OK DISC. C/O: 08-14-21

DISC. MOT. C/O:    08-29-21

TRIAL DATE: 09-13-21

PROCEEDINGS    DEMURRER TO PLAINTIFFS’ COMPLAINT WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Moss Management Services, Inc.

RESP. PARTY: Plaintiffs Deanna Collins and Sharonna Collins, in pro per

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, et seq.; 435)

TENTATIVE RULING:

Defendant Moss Management Services, Inc.’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the first cause of action. However, the Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND THE COMPLAINT as to the second cause of action. Finally, the Motion to Strike is DENIED.

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Demurrer

OPPOSITION: Filed on September 10, 2020   [   ] Late [   ] None

REPLY: Filed on January 14, 2021 [   ] Late [   ] None

Motion to Strike 

OPPOSITION: Filed on September 10, 2020   [   ] Late [   ] None

REPLY: None filed as of January 21, 2020 [   ] Late [X] None

ANALYSIS:

  1. Background

On March 16, 2020, Plaintiffs Deanna Collins (“Deanna”) and Sharonna Collins (“Sharonna”) (collectively, “Plaintiffs”) filed an action, in pro per, for general negligence and an unspecified intentional tort against Moss Management Services, Inc. dba 4565 Hazeltine, LLC (“Defendant”).

Defendant filed the instant Demurrer to Plaintiffs’ Complaint (the “Demurrer”) with a Motion to Strike on August 27, 2020. Plaintiffs filed an Opposition on September 10, 2020, and Defendant filed a Reply on January 14, 2021.

  1. Legal Standard

A. Demurrer

 

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

B. Motion to Strike

 

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).) However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

  1. Discussion

The Demurrer is accompanied by a declaration demonstrating Defendant’s counsel attempted to meet and confer with Plaintiffs but was unable to. (Dem., Mizell Decl., ¶¶ 4-6.)

A. First Cause of Action – General Negligence

 

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The statute of limitations to bring a general negligence claim is two years. (Code Civ. Proc., § 335.1.)

Plaintiffs allege (1) that Defendant failed to repair a leaking pipe outside of Plaintiffs’ bedroom window; (2) that Defendant knew the leaking pipe was reported to Defendant numerous times; (3) that Defendant knew Plaintiffs’ unit had previous mold issues, which they failed to properly remove; (4) that Defendant’s lack of property maintenance caused severe mold in Plaintiffs’ unit; (5) that as a result of Defendant’s actions, Plaintiffs suffered an illegal eviction; and (5) that Defendant breached their duty of implied warranty of habitability. (Compl., p. 4.) Although Plaintiffs do not allege any dates in their Complaint, the attached exhibits demonstrate Plaintiff Sharonna exchanged emails with Defendant’s office regarding the mold problem between January 14, 2016 and February 9, 2016. (Id., Exh. 5.) Thus, this general negligence cause of action, filed over four years from when the alleged negligent acts occurred, is barred by the two-year statute of limitations. (Code Civ. Proc., § 335.1.)

Plaintiffs also mention a breach of the implied warranty of habitability. (Compl., p. 4.) A breach of the implied warranty of habitability may be asserted as a defense to an unlawful detainer action or may be brought as a claim against the landlord for damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) “The elements of such an affirmative claim are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. [Citation.]” (Id.) The statute of limitations for a breach of the implied warranty of habitability is four years where a written lease exists. (Code Civ. Proc., § 337, subd. (a).)

Plaintiffs’ Complaint includes an Addendum to a Residential Lease Agreement. (Compl., Exh. 1.) Thus, a four-year statute of limitation applies. The mold growth was first reported to Defendant on January 14, 2016. (Id. at p. 4.) Thus, an action for breach of the implied warranty of habitability should have been filed no later than January 14, 2020. As it was not filed until March 16, 2020, it is time-barred.

As a final note, Plaintiffs state in their opposition that they previously filed an action against Defendant, Case No. 16K04673, which was dismissed without prejudice. (Oppo., pp. 2:18-3:6.) They ask to be excused from the statute of limitations as they were unable to make the court date set in Case No. 16K04673 and then unable to re-file this due to financial hardship. (Id.) However, Plaintiffs have not demonstrated that financial hardship would toll the statute of limitations.  

Thus, the Demurrer as to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

B. Second Cause of Action – Intentional Tort

As their second cause of action, Plaintiffs allege that due to Defendant’s negligence, including poor maintenance and upkeep of their property located at 4565 Hazeltine Ave., Sherman Oaks, CA 91423, Plaintiffs sustained mental and emotional stress, allergies, and rashes due to mold growth. (Compl., p. 5.) However, this is not a cause of action; rather, these are Plaintiffs’ alleged damages that resulted from Defendant’s alleged negligent acts. As noted above, a negligence cause of action is barred by the statute of limitations.

In their Opposition, Plaintiffs cite Civil Code section 1940.2 and argue they can prove Defendant used forceful threats and false allegations against them to remove them from their unit. (Oppo., pp. 2:20-3:6.) Section 1940.2 provides, in pertinent part, that it is unlawful for a landlord to “[u]se, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person.” (Civ. Code, section 1940.2, subd. (a)(3).) Because a claim for violation of Section 1940.2 would be based on the parties’ written lease agreement, it is subject to a four-year statute of limitations under Code Civil Procedure section 337, subdivision. (a).

Plaintiffs’ Complaint attaches an incomplete copy of the Three Day Notice to Perform Conditions and Covenants or Quit served on them by Defendant, so the Court is unable to determine the date it was served. (Compl., Exhs. 12-14.) Plaintiffs also do not specify when the alleged wrongful tactics occurred. However, the Complaint includes an inspection report dated June 1, 2016, which suggests Plaintiffs were still in the unit at that time. If this is the case, Plaintiffs’ claim would not be barred by the statute of limitations for alleged wrongful conduct under Section 1940.2 occurring after March 16, 2016 as the Complaint was filed on March 16, 2020. Notably, Defendant does not address this argument in its Reply.

Thus, the Demurrer as to the second cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND. Plaintiffs are reminded that an amended complaint must include specific factual allegations, including all relevant dates, in order to survive a demurrer.

C. Motion to Strike

As noted above, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) Defendant seeks to strike Item #3, Punitive Damages, in Plaintiffs’ Statement of Damages. (Mot. to Strike, p. 2:4-10.) However, the Statement of Damages is not a pleading. In addition, Plaintiffs’ prayer for relief does not include a request for punitive damages. Plaintiffs’ Complaint only seeks $25,000 in compensatory damages. (Compl., ¶ 14.) Thus, Defendant's Motion to Strike is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant Moss Management Services, Inc.’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the first cause of action. However, the Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND THE COMPLAINT as to the second cause of action. Finally, the Motion to Strike is DENIED.

Moving party is ordered to give notice.

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