This case was last updated from Los Angeles County Superior Courts on 10/15/2021 at 02:16:02 (UTC).

GIAVANNA WHITED VS JOSEPH BENDIX, ET AL.

Case Summary

On 12/10/2020 GIAVANNA WHITED filed a Property - Other Eviction lawsuit against JOSEPH BENDIX. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0341

  • Filing Date:

    12/10/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Eviction

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

WHITED GIAVANNA

Cross Defendants and Defendants

NELSON NANCY

ESSEX PROPERTY TRUST INC.

BENDIX JOSEPH

ESSEX PROPERTY TRUST INC. A MARYLAND CORPORATION

Defendant and Cross Plaintiff

ESSEX PROPERTY TRUST INC.

Not Classified By Court

CALIFORNIA VICTIM COMPENSATION BOARD

Attorney/Law Firm Details

Plaintiff Attorneys

BUCKMAN SHIRIN

BUCKMAN SHIRIN ESQ.

Cross Defendant and Defendant Attorneys

GREENLEAF CHRISTOPHER JOHNSON ESQ.

GREENLEAF CHRISTOPHER J

MUENCH RICHARD ARTHUR ESQ.

MUENCH RICHARD A

Defendant and Cross Plaintiff Attorney

MUENCH RICHARD ARTHUR ESQ.

Not Classified By Court Attorneys

KONSTAD ANDREA LOREEN ESQ.

KONSTAD ANDREA LOREEN

 

Court Documents

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike, Filed by Jose...)

9/27/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike, Filed by Jose...)

Motion to Dismiss - Motion to Dismiss

9/28/2021: Motion to Dismiss - Motion to Dismiss

Reply (name extension) - Reply TO RESPONSE TO SUPPLEMENTAL BRIEF IN SUPPORT OF DEMURRER OF DEFENDANT JOSEPH BENDIX TO SECOND AMENDED COMPLAINT

9/17/2021: Reply (name extension) - Reply TO RESPONSE TO SUPPLEMENTAL BRIEF IN SUPPORT OF DEMURRER OF DEFENDANT JOSEPH BENDIX TO SECOND AMENDED COMPLAINT

Reply (name extension) - Reply TO DEFENDANT JOSEPH BENDIXS SUPPLEMENTAL BRIEF IN SUPPORT OF HIS DEMURRER

9/10/2021: Reply (name extension) - Reply TO DEFENDANT JOSEPH BENDIXS SUPPLEMENTAL BRIEF IN SUPPORT OF HIS DEMURRER

Brief (name extension) - Brief SUPPLEMENTAL BRIEF IN SUPPORT OF DEMURRER OF DEFENDANT JOSEPH BENDIX TO (1) FIRST CAUSE OF ACTION FOR WRONGFUL EVICTION AND (2) FIFTH CAUSE OF ACTION FOR BREACH OF CONTR

9/1/2021: Brief (name extension) - Brief SUPPLEMENTAL BRIEF IN SUPPORT OF DEMURRER OF DEFENDANT JOSEPH BENDIX TO (1) FIRST CAUSE OF ACTION FOR WRONGFUL EVICTION AND (2) FIFTH CAUSE OF ACTION FOR BREACH OF CONTR

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike, Filed by Jose...)

8/24/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike, Filed by Jose...)

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike , Filed by Jos...)

8/11/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike , Filed by Jos...)

Opposition (name extension) - Opposition TO DEMURRER OF JOSEPH BENDIX TO PLAINTIFFS SECOND AMENDED COMPLAINT

8/11/2021: Opposition (name extension) - Opposition TO DEMURRER OF JOSEPH BENDIX TO PLAINTIFFS SECOND AMENDED COMPLAINT

Minute Order - Minute Order (Court Order Re: Continuance of the August 18, 2021 Hearing o...)

8/12/2021: Minute Order - Minute Order (Court Order Re: Continuance of the August 18, 2021 Hearing o...)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

8/12/2021: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Continuance of the August 18, 2021 Hearing o...) of 08/12/2021

8/12/2021: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Continuance of the August 18, 2021 Hearing o...) of 08/12/2021

Reply (name extension) - Reply TO OPPOSITION TO DEMURRER OF DEFENDANT JOSEPH BENDIX TO SECOND AMENDED COMPLAINT

8/4/2021: Reply (name extension) - Reply TO OPPOSITION TO DEMURRER OF DEFENDANT JOSEPH BENDIX TO SECOND AMENDED COMPLAINT

Demurrer - without Motion to Strike - Demurrer - with Motion to Strike (CCP 430.10)

7/9/2021: Demurrer - without Motion to Strike - Demurrer - with Motion to Strike (CCP 430.10)

Notice of Lien - Notice of Lien

6/29/2021: Notice of Lien - Notice of Lien

Amended Complaint - Amended Complaint (2nd)

6/11/2021: Amended Complaint - Amended Complaint (2nd)

Answer - Answer

6/17/2021: Answer - Answer

Answer - Answer

6/23/2021: Answer - Answer

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10); Hea...)

6/2/2021: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10); Hea...)

39 More Documents Available

 

Docket Entries

  • 12/14/2023
  • Hearing12/14/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

    Read MoreRead Less
  • 06/09/2022
  • Hearing06/09/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

    Read MoreRead Less
  • 01/04/2022
  • Hearing01/04/2022 at 10:00 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Dismiss

    Read MoreRead Less
  • 09/29/2021
  • DocketHearing on Motion to Dismiss scheduled for 01/04/2022 at 10:00 AM in Spring Street Courthouse at Department 26

    Read MoreRead Less
  • 09/28/2021
  • DocketMotion to Dismiss; Filed by: Joseph Bendix (Defendant)

    Read MoreRead Less
  • 09/27/2021
  • DocketUpdated -- Demurrer - without Motion to Strike to (1) First Cause of Action for Wrongful Eviction and (2) Fifth Cause of Action for Breach of Contract in Plaintiff's Second Amended Complaint (CCP 430.10): Filed By: Joseph Bendix (Cross-Defendant),Nancy Nelson (Cross-Defendant); Result: Overruled; Result Date: 09/27/2021

    Read MoreRead Less
  • 09/27/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike, Filed by Jose...)

    Read MoreRead Less
  • 09/27/2021
  • DocketHearing on Demurrer - without Motion to Strike , Filed by Joseph Bendix to (1) First Cause of Action for Wrongful Eviction and (2) Fifth Cause of Action for Breach of Contract to Plaintiff's Second Amended Complaint scheduled for 09/27/2021 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 09/27/2021; Result Type to Held

    Read MoreRead Less
  • 09/17/2021
  • DocketReply TO RESPONSE TO SUPPLEMENTAL BRIEF IN SUPPORT OF DEMURRER OF DEFENDANT JOSEPH BENDIX TO SECOND AMENDED COMPLAINT; Filed by: Nancy Nelson (Cross-Defendant); Joseph Bendix (Cross-Defendant)

    Read MoreRead Less
  • 09/10/2021
  • DocketReply TO DEFENDANT JOSEPH BENDIXS SUPPLEMENTAL BRIEF IN SUPPORT OF HIS DEMURRER; Filed by: Giavanna Whited (Plaintiff)

    Read MoreRead Less
75 More Docket Entries
  • 12/11/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

    Read MoreRead Less
  • 12/11/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Giavanna Whited (Plaintiff)

    Read MoreRead Less
  • 12/11/2020
  • DocketNon-Jury Trial scheduled for 06/09/2022 at 08:30 AM in Spring Street Courthouse at Department 26

    Read MoreRead Less
  • 12/11/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/14/2023 at 08:30 AM in Spring Street Courthouse at Department 26

    Read MoreRead Less
  • 12/10/2020
  • DocketCivil Case Cover Sheet; Filed by: Giavanna Whited (Plaintiff); As to: Joseph Bendix (Defendant); Nancy Nelson (Defendant); Essex Property Trust, Inc. (Defendant)

    Read MoreRead Less
  • 12/10/2020
  • DocketCivil Case Cover Sheet; Filed by: Giavanna Whited (Plaintiff); As to: Joseph Bendix (Defendant); Nancy Nelson (Defendant); Essex Property Trust, Inc. (Defendant)

    Read MoreRead Less
  • 12/10/2020
  • DocketComplaint; Filed by: Giavanna Whited (Plaintiff); As to: Joseph Bendix (Defendant); Nancy Nelson (Defendant); Essex Property Trust, Inc. (Defendant)

    Read MoreRead Less
  • 12/10/2020
  • DocketRequest to Waive Court Fees; Filed by: Giavanna Whited (Plaintiff)

    Read MoreRead Less
  • 12/10/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

    Read MoreRead Less
  • 12/10/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

    Read MoreRead Less

Tentative Rulings

b'

Case Number: 20STLC10341 Hearing Date: September 27, 2021 Dept: 26

Whited v. Bendix, et\r\nal. 20STLC10341

DEMURRER

\r\n\r\n

(CCP §§ 430.31,\r\net seq.)

\r\n\r\n

\r\n\r\n

TENTATIVE RULING:

\r\n\r\n

\r\n\r\n

Defendant Joseph Bendix’s\r\nDemurrer to the Second Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OF\r\nACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AND FIFTH CAUSE OF ACTION.

\r\n\r\n

\r\n\r\n

DEFENDANT JOSEPH BENDIX IS TO\r\nFILE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

\r\n\r\n

\r\n\r\n

On December 10, 2020, Plaintiff Giavanna\r\nWhited (“Plaintiff”) filed the Complaint in this action against Defendants Joseph\r\nBendix (“Defendant Bendix), Nancy Nelson (“Defendant Nelson”) and Essex\r\nProperty Trust, Inc. (“Defendant Essex”) (collectively, “Defendants”).

\r\n\r\n

\r\n\r\n

On May 10, 2021, the Court ruled on Defendant\r\nEssex’s Demurrer to, and Motion to Strike Portions of, the First Amended\r\nComplaint. On June 2, 2021, the Court ruled on Defendants Bendix and Nelson’s\r\nDemurrer to, and Motion to Strike Portions of, the First Amended Complaint.

\r\n\r\n

\r\n\r\n

On June 11, 2021, Plaintiff filed the Second\r\nAmended Complaint for (1) Wrongful Eviction (Cal. Civ. Code § 1942.5(d)); (2)\r\nIllegal Self-Help Eviction (Cal. Civ. Code §§ 789.3, 1940.2(a)(3), 1159); (3)\r\nNuisance; (4) Breach of the Covenant of Quiet Enjoyment (Cal. Civ. Code § 1927);\r\nand (5) Breach of Contract.

\r\n\r\n

\r\n\r\n

On June 9, 2021, Defendant Bendix filed the\r\ninstant Demurrer to the first and fifth causes of action of the Second Amended\r\nComplaint. It appears that Plaintiff served Defendant Bendix with an opposition\r\nto the Demurrer, but it was not filed with the Court. Defendant Bendix replied\r\non August 4, 2021.

\r\n\r\n

\r\n\r\n

The Demurrer was set for hearing on August\r\n11, 2021, but the Court was not available to hear oral argument. (Minute Order,\r\n08/11/21.) Plaintiff’s counsel asked to be heard and represented that an\r\nopposition had been filed. (Ibid.) The opposition was filed on the same\r\ndate and the Court has now considered it in ruling on the Demurrer.

\r\n\r\n

\r\n\r\n

At the next hearing on August 24, 2021, the\r\nCourt continued the matter to allow for supplemental briefing on the November\r\n27, 1981 Supreme Court Opinion Barela v. Superior Court (1981) 30 Cal.3d\r\n244. Defendant Bendix filed a supplemental brief on September 1, 2021 and\r\nPlaintiff filed a supplemental opposition on September 10, 2021.

\r\n\r\n

\r\n\r\n

Discussion

\r\n\r\n

\r\n\r\n

The Demurrer is accompanied by a meet and\r\nconfer declaration as required by Code of Civil Procedure sections 430.41 and\r\n435.5. (Demurrer, Greenleaf Decl., ¶¶2-4 and Exhs. 1-2.) Defendant Bendix\r\ndemurs to the first cause of action for wrongful eviction and fifth cause of\r\naction for breach of contract for failure to allege sufficient facts and\r\nuncertainty. (Citing Code Civ. Proc., § 430.10, subds. (e) and (f).) Special\r\ndemurrers are not allowed in the Limited Jurisdiction Court, therefore, the\r\nCourt will not consider the demurrer for uncertainty. (Code Civ. Proc., § 92,\r\nsubd. (c).)

\r\n\r\n

\r\n\r\n

Allegations in the Second Amended Complaint

\r\n\r\n

\r\n\r\n

Plaintiff alleges that she was in a romantic\r\nrelationship with Defendant Bendix from December 2018 to June 2020. (SAC, ¶10.)\r\nFollowing Defendant Bendix’s release from a sober living home, he invited\r\nPlaintiff to live with him at 5200 Wilshire Blvd. #637, Los Angeles, California\r\n(“the Apartment”). (Id. at ¶¶10-11.) Plaintiff and Defendant Bendix went\r\nto the leasing office in the apartment building and an agent for Defendant\r\nEssex, Lauren Knowles, gave Plaintiff a set for keys to the Apartment. (Id.\r\nat ¶11.) Plaintiff lived at the Apartment from August 2019 to August 2020. (Id.\r\nat ¶12.) Defendants Bendix and Nelson were named as co-lessors on the lease to\r\nthe Apartment. (Ibid.)

\r\n\r\n

\r\n\r\n

During the time Plaintiff lived at the\r\nApartment she was subjected to harassment and violence by Defendant Bendix. (Id.\r\nat ¶13.) Following an attack by Defendant Bendix on June 15, 2020, Plaintiff\r\ncalled the police and left the Apartment for a few days to stay with a friend.\r\n(Id. at ¶¶13-14.) However, Plaintiff left her possessions at the\r\nApartment, continued to receive mail at the Apartment, and still considered the\r\nApartment her home. (Id. at ¶14.) On June 17, 2020, Plaintiff informed\r\nDefendant Bendix’s brother that she planned to obtain a restraining order\r\nagainst Defendant Bendix. (Id. at ¶15.)

\r\n\r\n

\r\n\r\n

On June 28, 2020, Defendant Bendix’s brother\r\nsent Plaintiff a notice to vacate the Apartment, which was from Defendant Essex\r\nand addressed to Defendants Bendix and Nelson. (Ibid.) On July 1, 2020,\r\nPlaintiff obtained a temporary restraining order that prohibited Defendant\r\nBendix from accessing the Apartment. (Id. at ¶16.) On July 14, 2020,\r\nmore than a month after the June 15, 2020 incident, Defendant Bendix filed a\r\ncross-restraining order to keep Plaintiff out of the Apartment. (Ibid.)\r\nBoth restraining orders were voluntarily dismissed by joint stipulation on\r\nAugust 7, 2020. (Id. at ¶17.)

\r\n\r\n

\r\n\r\n

Plaintiff returned to the Apartment on August\r\n11, 2020. (Id. at ¶17.) On August 12, 2020, she realized she had left\r\nher wallet and keys, which included an elevator keyfob, in the Apartment. (Ibid.)\r\nPlaintiff could not access the residential units of the building without the\r\nelevator keyfob. (Ibid.) When Plaintiff went to the leasing office to\r\nask for access to the elevator, Defendant Essex’s agent, Stephanie Pelletier,\r\nwould not let Plaintiff take the elevator up to the Apartment. (Ibid.)\r\nPelletier claimed that Defendant Bendix instructed her not to let Plaintiff\r\ninto the Apartment. (Ibid.)

\r\n\r\n

\r\n\r\n

On August 12, 2020, Defendant Bendix told\r\nPlaintiff he informed building management she had access to the Apartment until\r\nSeptember 22, 2020, when the lease terminated. (Id. at ¶18.) Defendant\r\nBendix made the same assertion in writing on August 16, 2020 and stated that\r\nPlaintiff “has not and will not be receiving an eviction notice.” (Ibid.)\r\nWhen Plaintiff tried to go back to the Apartment on August 17, 2020, she was\r\nagain stopped by Pelletier in the lobby of the Apartment building. (Id.\r\nat ¶19.) Pelletier threatened to call security and Plaintiff left. (Ibid.)\r\nOn September 25, 2020, three days after the lease purportedly terminated,\r\nDefendant Bendix allowed Plaintiff access to the Apartment to take her\r\nbelongings. (Id. at ¶20.) On October 4, 2020, when Plaintiff returned to\r\nthe Apartment, she discovered the locks had been changed by Defendant Essex. (Id.\r\nat ¶¶21, 29.) Plaintiff never received a valid and legal 30-day notice to\r\nvacate, 3-day notice to quit, or a complaint for unlawful detainer from any\r\nDefendant. (Id. at ¶22.) At all times, Plaintiff paid Defendant Bendix\r\nthe rent he requested. (Id. at ¶23.) Plaintiff has been unable to access\r\nthe Apartment since August 12, 2020. (Id. at ¶24.)

\r\n\r\n

\r\n\r\n

1st Cause of Action for Wrongful Eviction in\r\nViolation of Cal. Civil Code § 1942.5

\r\n\r\n

\r\n\r\n

A cause of action for violation of Civil Code\r\nsection 1942.5, subdivision (d) makes it “unlawful for a lessor to increase\r\nrent, decrease services, cause a lessee to quit involuntarily, bring an action\r\nto recover possession, or threaten to do any of those acts, for the purpose of\r\nretaliating against the lessee because the lessee . . . has lawfully and\r\npeaceably exercised any rights under the law.” (Civ. Code, § 1942.5, subd.\r\n(d).) In Barela v. Superior Court (1981) 30 Cal.3d 244, the Supreme\r\nCourt of California resolved “one basic issue - whether an affirmative defense\r\nis available in an unlawful detainer action if it is based on the allegation\r\nthat the landlord seeks to evict in retaliation for the tenants report to the\r\npolice that the landlord has committed a crime.” (Barela v. Superior Court\r\n(1981) 30 Cal.3d 244, 248.) The Supreme Court ruled that the tenant’s eviction\r\nfor reporting her landlord’s criminal activity to the police, which was a right\r\nprotected by state law, violated the statutory prohibition against evictions\r\nset forth in Civil Code section 1942.5. (Id. at 252-253.)

\r\n\r\n

\r\n\r\n

Defendant Bendix argues that, like the First\r\nAmended Complaint, the Second Amended Complaint does not sufficiently allege\r\nthat Defendant Bendix kept Plaintiff from the Apartment in retaliation for her\r\nexercise of rights as a subtenant or because she complained to an appropriate\r\nagency as to tenantability of a dwelling. In ruling on the Demurrer to the\r\nFirst Amended Complaint, the Court determined that “[w]hile Plaintiff alleges\r\nthat she sought a temporary restraining order against Defendant Bendix in July\r\n2020, the allegations draw no clear connection between the restraining order\r\nPlaintiff sought and being kept from the Apartment.” (Minute Order, 06/02/21,\r\np. 5, ¶4.)

\r\n\r\n

\r\n\r\n

The Second Amended Complaint alleges facts\r\nshowing that Defendant Bendix retaliated against Plaintiff for the exercise of\r\nher rights, which included calling the police on June 15, 2020 and obtaining a\r\nrestraining order on July 1, 2020. The timeline set forth in the Second Amended\r\nComplaint demonstrates a causal nexus between the events starting with the June\r\n15, 2020 arrest of Defendant Bendix and the conversation Plaintiff had with Defendant\r\nEssex’s agent on August 12, 2020. Following the June 15, 2020 domestic violence\r\nincident, Plaintiff informed Defendant Bendix’s brother that she would obtain a\r\ntemporary restraining order, and did so on July 1, 2020. (SAC, ¶¶15-16.) That\r\nrestraining order allegedly kept Defendant Bendix from accessing the Apartment.\r\n(Id. at ¶16.) The Court having previously taken judicial notice of the\r\ntemporary restraining order issued on July 14, 2020 in favor of Defendant\r\nBendix, does so again. (RJN, filed 04/29/21, Exh. 1, ¶¶4, 14.) Defendant\r\nBendix’s restraining order kept Plaintiff from accessing the Apartment until\r\nAugust 7, 2020. (Ibid.) Once the restraining orders expired on August 7,\r\n2020, Defendant Bendix evicted Plaintiff from the Apartment by giving\r\ninstruction to Defendant Essex’s agent to keep her out.

\r\n\r\n

\r\n\r\n

The causal\r\nconnection, therefore, is shown in that Defendant Bendix’s conduct followed the\r\nassertion of Plaintiff’s rights. First, upon Plaintiff’s filing for a\r\nrestraining order that kept Defendant Bendix out of the Apartment, Defendant\r\nBendix obtained a restraining order of his own that kept Plaintiff from the\r\nApartment. Second, upon Plaintiff regaining rights to the Apartment, Defendant\r\nBendix instructed Defendant Essex’s agent that Plaintiff was not to be let into\r\nthe Apartment. While obtaining a restraining order might be protected by the\r\nlitigation privilege, it is relevant to Defendant Bendix’s pattern of conduct. From\r\nthese events, it can be inferred that Defendant Bendix sought to keep Plaintiff\r\nfrom the Apartment in August 2020 in retaliation for the exercise of her own\r\nrights, including calling the police, obtaining a restraining order, and\r\nreturning to the Apartment upon termination of the restraining orders. This is\r\nsufficient to allege a violation of Cal. Civil Code section 1942.5. The demurrer to the first cause of action for\r\nwrongful eviction is overruled.

\r\n\r\n

\r\n\r\n

5th Cause of Action for Breach of Contract

\r\n\r\n

\r\n\r\n

The Court previously ruled that Plaintiff had not\r\nsufficiently alleged the existence of a contract between herself and Defendants\r\nBendix and Nelson in the First Amended Complaint. (Minute Order, 06/02/21, p.\r\n9.) “The essential elements of a claim of breach of contract, whether express\r\nor implied, are the contract, the plaintiff’s performance or excuse for\r\nnonperformance, the defendant’s breach, and the resulting damages to the\r\nplaintiff.” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241\r\nCal.App.4th 425, 433.)

\r\n\r\n

\r\n\r\n

Plaintiff alleges that she agreed to pay Defendant Bendix\r\nrent to stay at the apartment, creating an oral contract for rent. (SAC,\r\n¶¶59-60, 62.) The terms of the contract are alleged to be that Plaintiff paid\r\nDefendant Bendix all the rent he requested at all times in exchange for a place\r\nto live. (Ibid.) The Second Amended Complaint also alleges that the\r\nparties’ agreement was an oral contract. (Id. at ¶62.) “An oral contract\r\nmay be pleaded generally as to its effect, because it is rarely possible to\r\nallege the exact words. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635,\r\n640 [citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th\r\n612, 616].)

\r\n\r\n

\r\n\r\n

However, even the general effect of the parties’ agreement\r\nis not alleged by Plaintiff beyond an exchange of monetary compensation for a\r\nplace to live. Plaintiff does not allege what rent was requested at any given\r\ntime (her obligations under the agreement) or what was included in “a place to\r\nlive” (Defendant Bendix’s obligations under the agreement). Nor does the Second\r\nAmended Complaint show that, under these minimal terms, Defendant Bendix\r\nbreached the agreement by evicting Plaintiff without notice and due process.\r\nPlaintiff does not allege that notice and due process prior to eviction were\r\nterms of the parties’ agreement.

\r\n\r\n

\r\n\r\n

Finally, the Court notes that in opposition to the Demurrer,\r\nPlaintiff argues that she has alleged an implied contract based on the parties’\r\nconduct. Even so, the terms and breach of that implied contract must be alleged\r\nbased on the parties’ conduct. As discussed, Plaintiff has not shown how the\r\nterms of the contract can be ascertained from her payment upon Defendant\r\nBendix’s demand. How much was paid and when? What was included in “a place to\r\nlive”? And how did Defendant Bendix breach these terms by filing a restraining\r\norder against Plaintiff? Defendant Bendix is entitled to notice of these\r\nultimate facts in order to respond to the Second Amended Complaint.

\r\n\r\n

\r\n\r\n

Therefore, it remains that Plaintiff has not sufficiently\r\nalleged the terms of the parties’ agreement in order to state a cause of action\r\nfor breach of contract against Defendant Bendix.

\r\n\r\n

\r\n\r\n

The demurrer to the fifth cause of action is sustained\r\nwithout leave to amend.

\r\n\r\n

\r\n\r\n

Conclusion

\r\n\r\n

\r\n\r\n

Defendant Joseph Bendix’s\r\nDemurrer to the Second Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OF\r\nACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AND FIFTH CAUSE OF ACTION.

\r\n\r\n

\r\n\r\n

DEFENDANT JOSEPH BENDIX IS TO\r\nFILE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

Moving party to give notice.

'b'

Case Number: 20STLC10341 Hearing Date: August 24, 2021 Dept: 26

Hearing Date: August 11, 2021 continued to this date to allow Plaintiff to be heard.

Whited v. Bendix, et al. 20STLC10341

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Joseph Bendix’s Demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION.

DEFENDANT JOSEPH BENDIX IS TO FILE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On December 10, 2020, Plaintiff Giavanna Whited (“Plaintiff”) filed the Complaint in this action against Defendants Joseph Bendix (“Defendant Bendix), Nancy Nelson (“Defendant Nelson”) and Essex Property Trust, Inc. (“Defendant Essex”) (collectively, “Defendants”).

On May 10, 2021, the Court ruled on Defendant Essex’s Demurrer to, and Motion to Strike Portions of, the First Amended Complaint. On June 2, 2021, the Court ruled on Defendants Bendix and Nelson’s Demurrer to, and Motion to Strike Portions of, the First Amended Complaint.

On June 11, 2021, Plaintiff filed the Second Amended Complaint for (1) Wrongful Eviction (Cal. Civ. Code § 1942.5(d)); (2) Illegal Self-Help Eviction (Cal. Civ. Code §§ 789.3, 1940.2(a)(3), 1159); (3) Nuisance; (4) Breach of the Covenant of Quiet Enjoyment (Cal. Civ. Code § 1927); and (5) Breach of Contract.

On June 9, 2021, Defendant Bendix filed the instant Demurrer to the first and fifth causes of action of the Second Amended Complaint. It appears that Plaintiff served Defendant Bendix with an opposition to the Demurrer, but it was not filed with the Court. Defendant Bendix replied on August 4, 2021.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. (Demurrer, Greenleaf Decl., ¶¶2-4 and Exhs. 1-2.) Defendant Bendix demurs to the first cause of action for wrongful eviction and fifth cause of action for breach of contract for failure to allege sufficient facts and uncertainty. (Citing Code Civ. Proc., § 430.10, subds. (e) and (f).) Special demurrers are not allowed in the Limited Jurisdiction Court, therefore, the Court will not consider the demurrer for uncertainty. (Code Civ. Proc., § 92, subd. (c).)

Allegations in the Second Amended Complaint

Plaintiff alleges that she was in a romantic relationship with Defendant Bendix from December 2018 to June 2020. (SAC, ¶10.) Following Defendant Bendix’s release from a sober living home, he invited Plaintiff to live with him at 5200 Wilshire Blvd. #637, Los Angeles, California (“the Apartment”). (Id. at ¶¶10-11.) Plaintiff and Defendant Bendix went to the leasing office in the apartment building and an agent for Defendant Essex, Lauren Knowles, gave Plaintiff a set for keys to the Apartment. (Id. at ¶11.) Plaintiff lived at the Apartment from August 2019 to August 2020. (Id. at ¶12.) Defendants Bendix and Nelson were named as co-lessors on the lease to the Apartment. (Ibid.)

During the time Plaintiff lived at the Apartment she was subjected to harassment and violence by Defendant Bendix. (Id. at ¶13.) Following an attack by Defendant Bendix on June 15, 2020, Plaintiff called the police and left the Apartment for a few days to stay with a friend. (Id. at ¶¶13-14.) However, Plaintiff left her possessions at the Apartment, continued to receive mail at the Apartment, and still considered the Apartment her home. (Id. at ¶14.) On June 17, 2020, Plaintiff informed Defendant Bendix’s brother that she planned to obtain a restraining order against Defendant Bendix. (Id. at ¶15.)

On June 28, 2020, Defendant Bendix’s brother sent Plaintiff a notice to vacate the Apartment, which was from Defendant Essex and addressed to Defendants Bendix and Nelson. (Ibid.) On July 1, 2020, Plaintiff obtained a temporary restraining order that prohibited Defendant Bendix from accessing the Apartment. (Id. at ¶16.) On July 14, 2020, more than a month after the June 15, 2020 incident, Defendant Bendix filed a cross-restraining order to keep Plaintiff out of the Apartment. (Ibid.) Both restraining orders were voluntarily dismissed by joint stipulation on August 7, 2020. (Id. at ¶17.)

Plaintiff returned to the Apartment on August 11, 2020. (Id. at ¶17.) On August 12, 2020, she realized she had left her wallet and keys, which included an elevator keyfob, in the Apartment. (Ibid.) Plaintiff could not access the residential units of the building without the elevator keyfob. (Ibid.) When Plaintiff went to the leasing office to ask for access to the elevator, Defendant Essex’s agent, Stephanie Pelletier, would not let Plaintiff take the elevator up to the Apartment. (Ibid.) Pelletier claimed that Defendant Bendix instructed her not to let Plaintiff into the Apartment. (Ibid.)

On August 12, 2020, Defendant Bendix told Plaintiff he informed building management she had access to the Apartment until September 22, 2020, when the lease terminated. (Id. at ¶18.) Defendant Bendix made the same assertion in writing on August 16, 2020 and stated that Plaintiff “has not and will not be receiving an eviction notice.” (Ibid.) When Plaintiff tried to go back to the Apartment on August 17, 2020, she was again stopped by Pelletier in the lobby of the Apartment building. (Id. at ¶19.) Pelletier threatened to call security and Plaintiff left. (Ibid.) On September 25, 2020, three days after the lease purportedly terminated, Defendant Bendix allowed Plaintiff access to the Apartment to take her belongings. (Id. at ¶20.) On October 4, 2020, when Plaintiff returned to the Apartment, she discovered the locks had been changed by Defendant Essex. (Id. at ¶¶21, 29.) Plaintiff never received a valid and legal 30-day notice to vacate, 3-day notice to quit, or a complaint for unlawful detainer from any Defendant. (Id. at ¶22.) At all times, Plaintiff paid Defendant Bendix the rent he requested. (Id. at ¶23.) Plaintiff has been unable to access the Apartment since August 12, 2020. (Id. at ¶24.)

1st Cause of Action for Wrongful Eviction in Violation of Cal. Civil Code § 1942.5

A cause of action for violation of Civil Code section 1942.5 must set forth the grounds on which a lessor engages in retaliatory eviction. Specifically, if a lessee is evicted “because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of” certain circumstances that are inapplicable to this case. (Cal. Civ. Code, § 1942.5, subd. (a).)

Defendant Bendix argues that, like the First Amended Complaint, the Second Amended Complaint does not sufficiently allege that Defendant Bendix kept Plaintiff from the Apartment in retaliation for her exercise of rights as a subtenant or because she complained to an appropriate agency as to tenantability of a dwelling. In ruling on the Demurrer to the First Amended Complaint, the Court determined that “[w]hile Plaintiff alleges that she sought a temporary restraining order against Defendant Bendix in July 2020, the allegations draw no clear connection between the restraining order Plaintiff sought and being kept from the Apartment.” (Minute Order, 06/02/21, p. 5, ¶4.)

It remains that the Second Amended Complaint does not allege facts showing that Defendant Bendix retaliated against Plaintiff for her exercise of her rights as a tenant or complaints regarding tenantability. Plaintiff makes the conclusory allegation that “[i]n retaliation for Ms. Whited calling the police, having DEFENDANT JOSEPH BENDIX arrested for intimate partner violence, and for obtaining a temporary restraining order against him that prevented his use of the apartment unit for a month, DEFENDANT JOSEPH BENDIX instructed DEFENDANT ESSEX to refuse to allow Ms. Whited back into her home.” (SAC, ¶30.) The facts alleged regarding Defendant Bendix’s instruction to Defendant Essex’s agent to keep Plaintiff out of the Apartment do not indicate that his motive was retaliatory. Plaintiff only alleges that Defendant Essex’s agent informed her on August 12, 2020 that Defendant Bendix instructed the agent not to let Plaintiff into the Apartment. (Id. at ¶17.) No other information about this conversation is alleged, including when it happened or what else was said. The conclusory allegation is not sufficient to allege that Defendant Bendix sought to keep Plaintiff from the Apartment in violation of Cal. Civil Code section 1942.5.

The demurrer to the first cause of action for wrongful eviction, therefore, is sustained without leave to amend.

5th Cause of Action for Breach of Contract

The Court previously ruled that Plaintiff had not sufficiently alleged the existence of a contract between herself and Defendants Bendix and Nelson in the First Amended Complaint. (Minute Order, 06/02/21, p. 9.) “The essential elements of a claim of breach of contract, whether express or implied, are the contract, the plaintiff’s performance or excuse for nonperformance, the defendant’s breach, and the resulting damages to the plaintiff.” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 433.)

Plaintiff alleges that she agreed to pay Defendant Bendix rent to stay at the apartment, creating an oral contract for rent. (SAC, ¶¶59-60, 62.) The terms of the contract are alleged to be that Plaintiff paid Defendant Bendix all the rent he requested at all times in exchange for a place to live. (Ibid.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640 [citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616].) However, even the general effect of the parties’ agreement is not alleged by Plaintiff beyond an exchange of monetary compensation for a place to live. Plaintiff does not allege what rent was requested at any given time or what was included in “a place to live.” It remains that Plaintiff has not sufficiently alleged the terms of the parties’ agreement in order to state a cause of action for breach of contract against Defendant Bendix.

The demurrer to the fifth cause of action is sustained without leave to amend.

Conclusion

Defendant Joseph Bendix’s Demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION ONLY.

DEFENDANT JOSEPH BENDIX IS TO FILE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.

'b'

Case Number: 20STLC10341 Hearing Date: August 11, 2021 Dept: 26

Whited v. Bendix, et\r\nal. 20STLC10341

DEMURRER

\r\n\r\n

(CCP §§ 430.31,\r\net seq.)

\r\n\r\n

\r\n\r\n

\r\n\r\n

TENTATIVE RULING:

\r\n\r\n

\r\n\r\n

Defendant Joseph Bendix’s\r\nDemurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS\r\nTO THE FIRST AND FIFTH CAUSES OF ACTION.

\r\n\r\n

\r\n\r\n

DEFENDANT JOSEPH BENDIX IS TO\r\nFILE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

\r\n\r\n

\r\n\r\n

On December 10, 2020, Plaintiff Giavanna\r\nWhited (“Plaintiff”) filed the Complaint in this action against Defendants Joseph\r\nBendix (“Defendant Bendix), Nancy Nelson (“Defendant Nelson”) and Essex\r\nProperty Trust, Inc. (“Defendant Essex”) (collectively, “Defendants”).

\r\n\r\n

\r\n\r\n

On May 10, 2021, the Court ruled on Defendant\r\nEssex’s Demurrer to, and Motion to Strike Portions of, the First Amended\r\nComplaint. On June 2, 2021, the Court ruled on Defendants Bendix and Nelson’s\r\nDemurrer to, and Motion to Strike Portions of, the First Amended Complaint.

\r\n\r\n

\r\n\r\n

On June 11, 2021, Plaintiff filed the Second\r\nAmended Complaint for (1) Wrongful Eviction (Cal. Civ. Code § 1942.5(d)); (2)\r\nIllegal Self-Help Eviction (Cal. Civ. Code §§ 789.3, 1940.2(a)(3), 1159); (3)\r\nNuisance; (4) Breach of the Covenant of Quiet Enjoyment (Cal. Civ. Code § 1927);\r\nand (5) Breach of Contract.

\r\n\r\n

\r\n\r\n

On June 9, 2021, Defendant Bendix filed the\r\ninstant Demurrer to the first and fifth causes of action of the Second Amended\r\nComplaint. It appears that Plaintiff served Defendant Bendix with an opposition\r\nto the Demurrer, but it was not filed with the Court. Defendant Bendix replied\r\non August 4, 2021.

\r\n\r\n

\r\n\r\n

Discussion

\r\n\r\n

\r\n\r\n

The Demurrer is accompanied by a meet and\r\nconfer declaration as required by Code of Civil Procedure sections 430.41 and\r\n435.5. (Demurrer, Greenleaf Decl., ¶¶2-4 and Exhs. 1-2.) Defendant Bendix\r\ndemurs to the first cause of action for wrongful eviction and fifth cause of\r\naction for breach of contract for failure to allege sufficient facts and\r\nuncertainty. (Citing Code Civ. Proc., § 430.10, subds. (e) and (f).) Special\r\ndemurrers are not allowed in the Limited Jurisdiction Court, therefore, the\r\nCourt will not consider the demurrer for uncertainty. (Code Civ. Proc., § 92,\r\nsubd. (c).)

\r\n\r\n

\r\n\r\n

Allegations in the Second Amended Complaint

\r\n\r\n

\r\n\r\n

Plaintiff alleges that she was in a romantic\r\nrelationship with Defendant Bendix from December 2018 to June 2020. (SAC, ¶10.)\r\nFollowing Defendant Bendix’s release from a sober living home, he invited\r\nPlaintiff to live with him at 5200 Wilshire Blvd. #637, Los Angeles, California\r\n(“the Apartment”). (Id. at ¶¶10-11.) Plaintiff and Defendant Bendix went\r\nto the leasing office in the apartment building and an agent for Defendant\r\nEssex, Lauren Knowles, gave Plaintiff a set for keys to the Apartment. (Id.\r\nat ¶11.) Plaintiff lived at the Apartment from August 2019 to August 2020. (Id.\r\nat ¶12.) Defendants Bendix and Nelson were named as co-lessors on the lease to\r\nthe Apartment. (Ibid.)

\r\n\r\n

\r\n\r\n

During the time Plaintiff lived at the\r\nApartment she was subjected to harassment and violence by Defendant Bendix. (Id.\r\nat ¶13.) Following an attack by Defendant Bendix on June 15, 2020, Plaintiff\r\ncalled the police and left the Apartment for a few days to stay with a friend.\r\n(Id. at ¶¶13-14.) However, Plaintiff left her possessions at the\r\nApartment, continued to receive mail at the Apartment, and still considered the\r\nApartment her home. (Id. at ¶14.) On June 17, 2020, Plaintiff informed\r\nDefendant Bendix’s brother that she planned to obtain a restraining order\r\nagainst Defendant Bendix. (Id. at ¶15.)

\r\n\r\n

\r\n\r\n

On June 28, 2020, Defendant Bendix’s brother\r\nsent Plaintiff a notice to vacate the Apartment, which was from Defendant Essex\r\nand addressed to Defendants Bendix and Nelson. (Ibid.) On July 1, 2020,\r\nPlaintiff obtained a temporary restraining order that prohibited Defendant\r\nBendix from accessing the Apartment. (Id. at ¶16.) On July 14, 2020,\r\nmore than a month after the June 15, 2020 incident, Defendant Bendix filed a\r\ncross-restraining order to keep Plaintiff out of the Apartment. (Ibid.)\r\nBoth restraining orders were voluntarily dismissed by joint stipulation on\r\nAugust 7, 2020. (Id. at ¶17.)

\r\n\r\n

\r\n\r\n

Plaintiff returned to the Apartment on August\r\n11, 2020. (Id. at ¶17.) On August 12, 2020, she realized she had left\r\nher wallet and keys, which included an elevator keyfob, in the Apartment. (Ibid.)\r\nPlaintiff could not access the residential units of the building without the elevator\r\nkeyfob. (Ibid.) When Plaintiff went to the leasing office to ask for\r\naccess to the elevator, Defendant Essex’s agent, Stephanie Pelletier, would not\r\nlet Plaintiff take the elevator up to the Apartment. (Ibid.) Pelletier\r\nclaimed that Defendant Bendix instructed her not to let Plaintiff into the\r\nApartment. (Ibid.)

\r\n\r\n

\r\n\r\n

On August 12, 2020, Defendant Bendix told\r\nPlaintiff he informed building management she had access to the Apartment until\r\nSeptember 22, 2020, when the lease terminated. (Id. at ¶18.) Defendant\r\nBendix made the same assertion in writing on August 16, 2020 and stated that\r\nPlaintiff “has not and will not be receiving an eviction notice.” (Ibid.)\r\nWhen Plaintiff tried to go back to the Apartment on August 17, 2020, she was\r\nagain stopped by Pelletier in the lobby of the Apartment building. (Id.\r\nat ¶19.) Pelletier threatened to call security and Plaintiff left. (Ibid.)\r\nOn September 25, 2020, three days after the lease purportedly terminated, Defendant\r\nBendix allowed Plaintiff access to the Apartment to take her belongings. (Id.\r\nat ¶20.) On October 4, 2020, when Plaintiff returned to the Apartment, she\r\ndiscovered the locks had been changed by Defendant Essex. (Id. at ¶¶21,\r\n29.) Plaintiff never received a valid and legal 30-day notice to vacate, 3-day\r\nnotice to quit, or a complaint for unlawful detainer from any Defendant. (Id.\r\nat ¶22.) At all times, Plaintiff paid Defendant Bendix the rent he requested. (Id.\r\nat ¶23.) Plaintiff has been unable to access the Apartment since August 12,\r\n2020. (Id. at ¶24.)

\r\n\r\n

\r\n\r\n

1st Cause of Action for Wrongful Eviction in\r\nViolation of Cal. Civil Code § 1942.5

\r\n\r\n

\r\n\r\n

A cause of action for violation of Civil Code\r\nsection 1942.5 must set forth the grounds on which a lessor engages in\r\nretaliatory eviction. Specifically, if a lessee is evicted “because of the\r\nexercise by the lessee of the lessee’s rights under this chapter or because of\r\nthe lessee’s complaint to an appropriate agency as to tenantability of a\r\ndwelling, and if the lessee of a dwelling is not in default as to the payment\r\nof rent, the lessor may not recover possession of a dwelling in any action or\r\nproceeding, cause the lessee to quit involuntarily, increase the rent, or\r\ndecrease any services within 180 days of” certain circumstances that are\r\ninapplicable to this case. (Cal. Civ. Code, § 1942.5, subd. (a).)

\r\n\r\n

\r\n\r\n

Defendant Bendix argues that, like the First\r\nAmended Complaint, the Second Amended Complaint does not sufficiently allege\r\nthat Defendant Bendix kept Plaintiff from the Apartment in retaliation for her\r\nexercise of rights as a subtenant or because she complained to an appropriate\r\nagency as to tenantability of a dwelling. In ruling on the Demurrer to the\r\nFirst Amended Complaint, the Court determined that “[w]hile Plaintiff alleges\r\nthat she sought a temporary restraining order against Defendant Bendix in July\r\n2020, the allegations draw no clear connection between the restraining order\r\nPlaintiff sought and being kept from the Apartment.” (Minute Order, 06/02/21,\r\np. 5, ¶4.)

\r\n\r\n

\r\n\r\n

It remains that the Second Amended Complaint does\r\nnot allege facts showing that Defendant Bendix retaliated against Plaintiff for\r\nher exercise of her rights as a tenant or complaints regarding tenantability.\r\nPlaintiff makes the conclusory allegation that “[i]n retaliation for Ms.\r\nWhited calling the police, having DEFENDANT JOSEPH BENDIX arrested for intimate\r\npartner violence, and for obtaining a temporary restraining order against him\r\nthat prevented his use of the apartment unit for a month, DEFENDANT JOSEPH\r\nBENDIX instructed DEFENDANT ESSEX to refuse to allow Ms. Whited back into her\r\nhome.” (SAC, ¶30.) The facts alleged regarding Defendant Bendix’s instruction\r\nto Defendant Essex’s agent to keep Plaintiff out of the Apartment do not\r\nindicate that his motive was retaliatory. Plaintiff only alleges that Defendant\r\nEssex’s agent informed her on August 12, 2020 that Defendant Bendix instructed the\r\nagent not to let Plaintiff into the Apartment. (Id. at ¶17.) No other\r\ninformation about this conversation is alleged, including when it happened or\r\nwhat else was said. The conclusory allegation is not sufficient to allege that\r\nDefendant Bendix sought to keep Plaintiff from the Apartment in violation of Cal.\r\nCivil Code section 1942.5.

\r\n\r\n

\r\n\r\n

The demurrer to the first cause of action for\r\nwrongful eviction, therefore, is sustained without leave to amend.

\r\n\r\n

\r\n\r\n

5th Cause of Action for Breach of Contract

\r\n\r\n

\r\n\r\n

The Court previously ruled that Plaintiff had not\r\nsufficiently alleged the existence of a contract between herself and Defendants\r\nBendix and Nelson in the First Amended Complaint. (Minute Order, 06/02/21, p.\r\n9.) “The essential elements of a claim of breach of contract, whether express\r\nor implied, are the contract, the plaintiff’s performance or excuse for\r\nnonperformance, the defendant’s breach, and the resulting damages to the\r\nplaintiff.” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241\r\nCal.App.4th 425, 433.)

\r\n\r\n

\r\n\r\n

Plaintiff alleges that she agreed to pay Defendant Bendix\r\nrent to stay at the apartment, creating an oral contract for rent. (SAC,\r\n¶¶59-60, 62.) The terms of the contract are alleged to be that Plaintiff paid\r\nDefendant Bendix all the rent he requested at all times in exchange for a place\r\nto live. (Ibid.) “An oral contract may be pleaded generally as to its\r\neffect, because it is rarely possible to allege the exact words. (Scolinos\r\nv. Kolts (1995) 37 Cal.App.4th 635, 640 [citing Khoury v. Maly’s of\r\nCalifornia, Inc. (1993) 14 Cal.App.4th 612, 616].) However, even the\r\ngeneral effect of the parties’ agreement is not alleged by Plaintiff beyond an\r\nexchange of monetary compensation for a place to live. Plaintiff does not\r\nallege what rent was requested at any given time or what was included in “a\r\nplace to live.” It remains that Plaintiff has not sufficiently alleged the\r\nterms of the parties’ agreement in order to state a cause of action for breach\r\nof contract against Defendant Bendix.

\r\n\r\n

\r\n\r\n

The demurrer to the fifth cause of action is sustained\r\nwithout leave to amend.

\r\n\r\n

\r\n\r\n

Conclusion

\r\n\r\n

\r\n\r\n

Defendant Joseph Bendix’s\r\nDemurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS\r\nTO THE FIRST AND FIFTH CAUSES OF ACTION ONLY.

\r\n\r\n

\r\n\r\n

DEFENDANT JOSEPH BENDIX IS TO\r\nFILE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

Moving party to give notice.

\r\n\r\n

'

Case Number: 20STLC10341    Hearing Date: June 2, 2021    Dept: 26

Whited v. Bendix, et al.DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Nancy Nelson’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST, SECOND AND FIFTH CAUSES OF ACTION.

Defendant Joseph Bendix’s Demurrer to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION AND OVERRULED AS TO THE SECOND, THIRD AND FOURTH CAUSES OF ACTION.

Defendant Nancy Nelson’s Motion to Strike Portions of the First Amended Complaint is DEEMED MOOT.

Defendant Joseph Bendix’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Plaintiff Giavanna Whited may filed a Second Amended Complaint in accordance with this ruling within 20 days’ service of the order.

On December 10, 2020, Plaintiff Giavanna Whited (“Plaintiff”) filed the Complaint in this action against Defendants Joseph Bendix (“Defendant Bendix), Nancy Nelson (“Defendant Nelson”) and Essex Property Trust, Inc. (“Defendant Essex”) (collectively, “Defendants”). On March 2, 2021, Plaintiff the First Amended Complaint for (1) Wrongful Eviction (Cal. Civ. Code § 1942.5(d)); (2) Illegal Self-Help Eviction (Cal. Civ. Code §§ 789.3, 1940.2(a)(3), 1159); (3) Nuisance; (4) Breach of the Covenant of Quiet Enjoyment (Cal. Civ. Code § 1927); and (5) Breach of Contract.

On April 29, 2021, Defendants Bendix and Nelson filed the instant Demurrer to, and Motion to Strike Portions of, the First Amended Complaint. Plaintiff filed oppositions on May 19, 2021, and Defendants Bendix and Nelson replied on May 25, 2021.

The Demurrer and Motion to Strike are accompanied by a meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. (Demurrer and Motion to Strike, Greenleaf Decl., ¶¶2-4 and Exhs. 1-2.)

Request for Judicial Notice

In support of the Demurrer and Motion to Strike, Defendants Nelson and Bendix ask the Court to take judicial notice of (1) Joseph Bendix’s Request for Domestic Violence Restraining Order filed July 14, 2020 in Case No. 20STR003592; and (2) Notice of Court Hearing and Temporary Restraining Order filed on July 14, 2020 in Case No. 20STR003592.

The Court takes judicial notice of the existence of these documents and orders they make, but cannot take judicial notice of any hearsay statements therein. (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768.)

Allegations in the First Amended Complaint

Plaintiff alleges that she was in a romantic relationship with Defendant Bendix from December 2018 to June 2020. (FAC, ¶11.) Following Defendant Bendix’s release from a sober living home, he invited Plaintiff to live with him at 5200 Wilshire Blvd. #637, Los Angeles, California (“the Apartment”). (Ibid.) Plaintiff and Defendant Bendix went to the leasing office in the apartment building and an agent for Defendant Essex, Lauren Knowles, gave Plaintiff a set for keys to the apartment. (Ibid.) Plaintiff lived at the apartment from August 2019 to August 2020. (Ibid.) Defendants Bendix and Nelson were named as co-lessors on the lease to the Apartment with Defendant Essex. (Ibid.)

During the time Plaintiff lived at the Apartment she was subjected to harassment and violence by Defendant Bendix. (Id. at ¶12.) Following an attack by Defendant Bendix on June 15, 2020, Plaintiff called the police and left the Apartment for a few days to stay with a friend. (Id. at ¶¶12-13.) However, Plaintiff left her possessions at the Apartment and still considered the Apartment her home. (Id. at ¶13.) On June 28, 2020, Defendant Bendix’s brother sent Plaintiff Defendant Essex’s notice to vacate the Apartment. (Id. at ¶14.) Upon Plaintiff’s return to the Apartment building on August 12, 2020, she realized she had left her wallet and keys in the Apartment. (Id. at ¶16.) Her keys had the keyfob that allowed access to the elevator to the residential units of the building. (Ibid.) When Plaintiff went to the leasing office to ask for access to the elevator, Defendant Essex’s agent, Stephanie Pelletier, would not let Plaintiff take the elevator up to the Apartment. (Ibid.) Pelltier claimed that Defendant Bendix instructed her not to let Plaintiff into the Apartment. (Ibid.)

 

On August 12, 2020, Defendant Bendix told Plaintiff he informed building management she had access to the Apartment until September 22, 2020, when the lease terminated. (Id. at ¶17.) Defendant Bendix made the same assertion in writing on August 16, 2020 and stated that Plaintiff “has not and will not be receiving an eviction notice.” (Ibid.) When Plaintiff tried to go back to the Apartment on August 17, 2020, she was again stopped by Pelltier in the lobby of the Apartment building. (Id. at 18.) Pelltier threatened to call security and Plaintiff left. (Ibid.) On September 25, 2020, Defendant Bendix allowed Plaintiff access to the Apartment to take her belongings. (Id. at ¶19.) On October 4, 2020, when Plaintiff returned to the Apartment, she discovered the locks had been changed by Defendant Essex. (Id. at ¶¶20, 29.) Plaintiff never received a valid and legal 30-day notice to vacate, 3-day notice to quit, or a complaint for unlawful detainer from any Defendant. (Id. at ¶21.) At all times, Plaintiff paid Defendant Bendix the rent he requested. (Id. at ¶22.)

Demurrer to First Amended Complaint.

Defendants Bendix and Nelson demurs to each of the causes of action brought against them, the first, second and fifth causes of action as to Defendant Nelson, and the first through fifth causes of action as to Defendant Bendix. The Demurrer is brought for failure to allege sufficient facts (Code Civ. Proc., § 430.10, subd. (e) and uncertainty (Code Civ. Proc., § 430.10, subd. (f).) However, special demurrers are not allowed in a court of limited jurisdiction so the Court will not rule on the demurrer for uncertainty. (Code Civ. Proc., § 92, subd. (c).)

Nor will the Court consider or address any arguments raised by Defendants Bendix and Nelson that rely on facts outside of the pleadings or matters of which the Court cannot take judicial notice. (See (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

1st Cause of Action for Wrongful Eviction in Violation of Cal. Civil Code § 1942.5

A cause of action for violation of Civil Code section 1942.5 sets forth the grounds on which a lessor engages in retaliatory eviction. Specifically, if a lessee is evicted “because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of” certain circumstances that are inapplicable to this case.

Defendants Bendix and Nelson demur to this cause of action on the grounds that Plaintiff has not alleged the existence of a landlord-tenant relationship with them. The Court will take into account Plaintiff’s contention that paragraph 59 of the First Amended Complaint failed to include the word “not” and should allege “Therefore, although Ms. Whited was not added to the lease agreement, with all DEFENDANTS’ consent, she became all DEFENDANTS’ subtenant under operation of law.” (FAC, ¶59.)

Defendants Bendix and Nelson argue that no facts are alleged to support Plaintiff’s subtenancy, but provide no authority defining what creates a landlord-tenant relationship under the law. Plaintiff alleges that she paid rent to Defendant Bendix to live there. (FAC, ¶22.) The Demurrer does not demonstrate why this allegation is insufficient to create a landlord-tenant relationship between Plaintiff and Defendant Bendix. Civil Code section 1940 states that the chapter applies to “all persons who hire dwelling units . . .  however designated.” (Civ. Code, § 1940, subd. (a).) By Plaintiff’s allegation, she hired the apartment from Defendant Bendix.

Defendants Bendix and Nelson alternatively argue that Plaintiff’s allegation that she was a subtenant of all Defendants is inconsistent and contradictory. But this is not grounds for demurrer. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)

The lessor referred to Civil Code section 1942.5 is the person or entity with whom the lessee had a legal relationship based on the hiring of the dwelling unit. This is evident from subdivision (d) of the statute, which makes it unlawful for “a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee . . . .” (Civ. Code, § 1942.5, subd. (d).) In other words, the lessor is a person or entity with control over the conditions of the lease. The First Amended Complaint alleges that Plaintiff paid rent to Defendant Bendix and that he instructed Defendant Essex to keep her from accessing the apartment in August 2019. (Id. at ¶¶14, 16, 22.) It was not until August 12, 2020 that Defendant Bendix allegedly informed building management that Plaintiff could access the apartment until September 22, 2020. (Id. at ¶17.) Therefore, the First Amended Complaint sufficiently alleges facts demonstrating that Defendant Bendix was in a landlord-tenant relationship with Plaintiff, with the power to kept her from accessing the apartment in August 2020, and that he did in fact exercise that power.

To the extent Defendant Bendix relies on the Temporary Restraining Order issued on July 14, 2020 to demonstrate that he was within his rights to keep Plaintiff from the apartment—the order states that only Defendant Bendix could use, control, and possess the apartment—that order expired on August 7, 2020. (RJN, Exh. 1, ¶¶4, 14.) But Plaintiff was allegedly kept from the apartment on Defendant Bendix’s instruction after the order expired. Nor does the allegation that Plaintiff accessed the apartment on August 11, 2020 contradict the allegation that Plaintiff was barred from returning on August 12, 2020. There is no allegation that Plaintiff interacted with any Defendant on August 11, 2020 such that they could keep her from the apartment.

The reasonable inference from the allegations is that at some point Defendant Bendix instructed building management Plaintiff was not allowed into the apartment, but then rescinded the instruction after Plaintiff’s conversation with Defendant Essex’s agent, Stephanie Pelltier, on August 12, 2020. (See FAC, ¶¶16-17.) Preventing Plaintiff from accessing the apartment, even if for a limited period of time, was a decrease in services under Civil Code section 1942.5 by Defendant Bendix.

However, Plaintiff does not sufficiently allege that Defendant Bendix kept her from the apartment in retaliation for her exercise of rights as a subtenant or because she complained to an appropriate agency as to tenantability of a dwelling. While Plaintiff alleges that she sought a temporary retraining order against Defendant Bendix in July 2020, the allegations draw no clear connection between the restraining order Plaintiff sought and being kept from the apartment. Plaintiff alleges that she informed Defendant Bendix’s brother she would seek a restraining order and it was Defendant Bendix’s brother who sent Plaintiff the notice of eviction. (FAC, ¶14.) Furthermore, it was “Essex’s Notice of Eviction . . .  which was addressed to . . . Mr. Bendix and Ms. Nelson.” (Ibid.) These allegations do not point to any conduct by Defendant Bendix regarding the notice of eviction, nor do they indicate that Defendant Bendix’s alleged instruction to building management to keep Plaintiff out of the apartment was in retaliation for her restraining order proceeding against him.

Therefore, the First Amended Complaint fails to allege Defendant Bendix retaliated against Plaintiff by keeping her out of the apartment.

With respect to Defendant Nelson’s alleged liability under this cause of action, Plaintiff only alleges that Defendant Nelson consented to her residing at the apartment. (FAC, ¶3.) There are no allegations that Defendant Nelson had any say regarding the terms of the lease nor are there any allegations that Defendant Nelson had anything to do with the notice of eviction or keeping Plaintiff from the apartment in August 2020. Even if the allegations that Defendant Nelson’s consent to Plaintiff’s residency at the apartment created a tenancy at will, the First Amended Complaint fails to allege Defendant Nelson took any action against Plaintiff in violation of Civil Code section 1942.5.

The demurrer to the first cause of action is sustained. 

2nd Cause of Action for Illegal Self-Help Eviction in Violation of Civil Code §§ 789.3, 1940.2(a)(3), 1159

The second cause of action is entitled “Illegal Self-Help Eviction” and brought against all Defendants based on the facts recited above. Defendants Bendix and Nelson reiterate their arguments that Plaintiff has not sufficiently alleged a landlord-tenant relationship or eviction. For the reasons stated above, the First Amended Complaint does not allege sufficient facts of wrongdoing by Defendant Nelson against Plaintiff. All the wrongful conduct allegations are direct to Defendants Essex and Bendix, without a showing as to how Defendant Nelson could be liable for their conduct.

Also for the reasons discussed above, Plaintiff has sufficiently alleged she was in a landlord-tenant relationship with Defendant Bendix and that his conduct amounted to an eviction. Defendant Bendix separately argues that Plaintiff “elected a termination of her residency as a matter of law” because she sought a restraining order against Defendant Bendix. No authority is offered for the bold contention that seeking a restraining order amounts to a termination of residency. (Demurrer, p. 13:2-4.).  In fact, such a rule is contradicted by Defendant Bendix’s own temporary restraining order, which gave him use, control, and possession of the apartment. (RJN, Exh. 1, ¶14.) Defendant Bendix also argues that under the terms of his restraining order against Plaintiff, she could no longer legally reside with him and her residency was thereby terminated. (Id. at p. 13:4-5.) Even if Plaintiff could not legally reside at the apartment for the period of time set forth in the restraining order, Defendant Bendix again offers no authority that this temporary order somehow terminated Plaintiff’s right to reside at the apartment after the hearing on August 7, 2020. 

Finally, even if Plaintiff’s right to reside at the apartment were terminated by any of these orders and she was trespassing upon entry, Defendant Bendix would still have no right to simply keep her from accessing the apartment without resort to legal process.

The forcible entry statute protects a “party in possession.” (Code Civ. Proc., § 1159.) “The ‘party in possession’ refers to any person who ‘hires' real property.” (Cal. Practice Guide: Landlord—Tenant, supra, ¶ 7:6, p. 7–3; see Civ.Code, §§ 1925, 1940.)

. . . .

For occupants in peaceful possession of real property, these statutes offer protection from self-help, without regard to the parties’ legal claims to title or possession. “The statutes ... reflect a policy, with deep roots in English law, barring the use of forceful self-help to enforce a right to possession of real property and requiring instead the use of judicial process to gain possession.” (Glass v. Najafi (2000) 78 Cal.App.4th 45, 48–49, 92 Cal.Rptr.2d 606.)

As the California Supreme has said: “Both before and after the enactment of the present forcible entry and detainer statutes this court held that ownership or right of possession to the property was not a defense to an action for forcible entry.” (Jordan v. Talbot (1961) 55 Cal.2d 597, 603, 12 Cal.Rptr. 488, 361 P.2d 20, fn. omitted.) Witkin explains: “A tenant holding over without permission is technically a trespasser. But by statute the owner must use the unlawful detainer procedure, and, if the owner ousts the tenant forcibly, the tenant may regain possession by an action for forcible entry.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 421, p. 636.) Landlords thus may enforce their rights “only by judicial process, not by self-help.” (Jordan v. Talbot, at p. 604, 12 Cal.Rptr. 488, 361 P.2d 20.) “Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.” (Id. at p. 605, 12 Cal.Rptr. 488, 361 P.2d 20; see also, e.g., Daluiso v. Boone (1969) 71 Cal.2d 484, 493, 78 Cal.Rptr. 707, 455 P.2d 811 [these statutes are “intended to discourage self-help in the settlement of disputes over possession of land and to encourage resort to the courts in all such matters”].)

(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1037-1039 (emphasis added).) Therefore, the First Amended Complaint alleges facts sufficient to state a cause of action for Illegal Self-Help Eviction against Defendant Bendix.

The demurrer to the second cause of action is sustained as to Defendant Nelson and overruled as to Defendant Bendix.

3rd Cause of Action for Nuisance

Civil Code section 3479 states in relevant part that “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Civ. Code, § 3479.) “A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land. (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 610 [citing Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302].)

Plaintiff alleges nuisance against Defendant Bendix based on emotional and physical violence he directed against her. (FAC, ¶¶47-49.) Specifically, that Plaintiff was forced to lock herself in the bedroom for hours at a time while Defendant Bendix yelled and made threats outside the door. (Id. at ¶47.) This allegedly occurred at least twice a week and caused Plaintiff to miss work, lose wages and commissions. (Id. at ¶48.) It also allegedly kept Plaintiff from living “in a peaceful environment free of threats and violence.” (Id. at 49.)

Defendant Bendix argues that the parties’ domestic violence dispute cannot be transformed into an injury specifically referable to the use and enjoyment of land. No authority is cited for this position. (See Demurrer, pp. 15:17-16:1.) Allegations that Plaintiff was forced to remain in the bedroom due to Defendant Bendix’s yelling and threats clearly impacted her use and enjoyment of apartment. The First Amended Complaint, therefore, alleges an injury specifically referable to Plaintiff’s use and enjoyment of the land.

The demurrer to the third cause of action is overruled.

4th Cause of Action for Breach of Implied Covenant to Quiet Enjoyment

The allegations of Defendant Bendix’s violence and threats of violence against Plaintiff also form the basis of the fourth cause of action for breach of the implied covenant to quiet enjoyment. “To be actionable, the landlords act or omission must substantially interfere with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.)

The demurrer to this cause of action simply reprises the arguments made earlier that Plaintiff has not alleged a landlord-tenant relationship with Defendant Bendix. (Demurrer, p. 16:12-17.) For the reasons explained above, Plaintiff had sufficiently alleged a landlord-tenant relationship based on their agreement that Plaintiff would pay Defendant Bendix rent for the apartment.

The demurrer to the fourth cause of action is overruled.

5th Cause of Action for Breach of Contract

“The essential elements of a claim of breach of contract, whether express or implied, are the contract, the plaintiff’s performance or excuse for nonperformance, the defendant’s breach, and the resulting damages to the plaintiff.” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 433.)

Plaintiff does not sufficiently allege the existence of a contract between herself and Defendants Bendix and Nelson. The essential elements of a contract are mutual assent and consideration. (Chandler v. Roach (1957) 156 Cal.App.2d 435, 440.) Plaintiff does not allege that she and Defendant Nelson agreed to any exchange regarding Plaintiff’ residence at the apartment. And while Plaintiff does allege that she agreed to pay Defendant Bendix rent to stay at the apartment, the specific terms of that agreement are not included in the First Amended Complaint. (See FAC, ¶¶11, 22, 59-61.)

Therefore, Plaintiff has not alleged facts sufficient to state a cause of action for breach of contract against Defendants Nelson and Bendix. The demurrer to the fifth cause of action is sustained.

Leave to Amend

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 allegations against Defendant Nelson are too sparse to support the possibility of amendment to support the claims against her. Therefore, Defendant Nelson’s demurrer to the first, second and fifth causes of action are sustained without leave to amend. However, the allegations against Defendant Bendix with respect to the first and fifth causes of action are only missing a single element, or specific supporting facts. Therefore, leave to amend is appropriate as to Defendant Bendix’s demurrer to the first and fifth causes of action.

Conclusion

Defendant Nancy Nelson’s Demurrer to the First Amended Complaint is sustained without leave to amend as to the first, second and fifth causes of action.

Defendant Joseph Bendix’s Demurrer to the First Amended Complaint is sustained with leave to amend as to the first and fifth causes of action and overruled as to the second, third and fourth causes of action.

Motion to Strike Portions of First Amended Complaint

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 which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) However, in a court of limited jurisdiction, motions to strike may only be brought on grounds that the allegations do not support the request for relief or damages. (Code Civ. Proc., § 92, subd. (c).)

Defendants Nelson and Bendix move to strike the allegations in support of the request for punitive damages set forth in connection with the causes of action alleged against them. The punitive damages allegations are included with the first, second and third causes of action, at paragraphs 33, 44 and 51, respectively. (FAC, ¶¶ 33, 44, 51.)

Pursuant to the ruling on Defendant Nelson’s Demurrer, the request to strike the punitive damages is deemed moot. Pursuant to the ruling on Defendant Bendix’s Demurrer, the request to strike the punitive damages allegations is deemed moot as to the first cause of action, but remains at issue with respect to the second and third causes of action.

A request for punitive damages may be made pursuant to Cal. Civil Code 3294, which provides, as follows: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civil Code, § 3294, subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294, subd. (c)(2).)

The allegations of illegal self-help eviction and nuisance against Defendant Bendix are sufficient to allege that he acted with malice or oppression. Keeping Plaintiff from accessing the apartment without legal process amounts to despicable conduct insofar as it deprived Plaintiff of her home and personal possessions in willful and conscious disregard of her rights to that access. Nuisance claims by a tenant can also give rise to punitive damages. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) Plaintiff alleged that Defendant Bendix’s emotional and physical violence, and threats of violence, substantially and frequently impaired her rights in the apartment. This is sufficient to meet the definition of either malice or oppression.

Defendant Bendix’s request to strike the punitive damages allegations, therefore, is denied.

Conclusion

Defendant Nancy Nelson’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST, SECOND AND FIFTH CAUSES OF ACTION.

Defendant Joseph Bendix’s Demurrer to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION AND OVERRULED AS TO THE SECOND, THIRD AND FOURTH CAUSES OF ACTION.

Defendant Nancy Nelson’s Motion to Strike Portions of the First Amended Complaint is DEEMED MOOT.

Defendant Joseph Bendix’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Plaintiff Giavanna Whited may filed a Second Amended Complaint in accordance with this ruling within 20 days’ service of the order.

Moving party to give notice.

Case Number: 20STLC10341    Hearing Date: May 10, 2021    Dept: 26

Whited v. Bendix, et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Essex Property Trust, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION, AND OVERRULED AS TO THE SECOND CAUSE OF ACTION.

Defendant Essex Property Trust, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND AS TO PARAGRAPHS 32, 33, 43 AND 63 OF THE FIRST AMENDED COMPLAINT AND DENIED AS TO PARAGRAPH 44.

DEFENDANT ESSEX PROPERTY TRUST, INC. IS TO FILE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN TEN (10) DAYS’ SERVICE OF THIS ORDER.

Defendant Essex Property Trust, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION, AND OVERRULED AS TO THE SECOND CAUSE OF ACTION.

Defendant Essex Property Trust, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND AS TO PARAGRAPHS 32, 33, 43 AND 63 OF THE FIRST AMENDED COMPLAINT AND DENIED AS TO PARAGRAPH 44.

DEFENDANT ESSEX PROPERTY TRUST, INC. IS TO FILE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN TEN (10) DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On December 10, 2020, Plaintiff Giavanna Whited (“Plaintiff”) filed the Complaint in this action against Defendants Joseph Bendix (“Defendant Bendix), Nancy Nelson (“Defendant Nelson”) and Essex Property Trust, Inc. (“Defendant Essex”) (collectively, “Defendants”). On March 2, 2021, Plaintiff the First Amended Complaint for (1) Wrongful Eviction (Cal. Civ. Code § 1942.5(d)); (2) Illegal Self-Help Eviction (Cal. Civ. Code §§ 789.3, 1940.2(a)(3), 1159); (3) Nuisance; (4) Breach of the Covenant of Quiet Enjoyment (Cal. Civ. Code § 1927); and (5) Breach of Contract.

On March 19, 2021, Defendant Essex filed the instant Demurrer to, and Motion to Strike Portions of, the First Amended Complaint. Plaintiff filed oppositions on April 7, 2021. The Demurrer and Motion to Strike are accompanied by a meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. (Demurrer and Motion to Strike, Ng Decl., ¶¶3-6 and Exh. A.)

Demurrer to First Amended Complaint.

Defendant Essex demurs to the first, second and fifth causes of action, which are the ones brought against it. The Demurrer is brought for failure to allege sufficient facts (Code Civ. Proc., § 430.10, subd. (e) and uncertainty (Code Civ. Proc., § 430.10, subd. (f).) However, special demurrers are not allowed in a court of limited jurisdiction so the Court will not rule on the demurrer for uncertainty. (Code Civ. Proc., § 92, subd. (c).)

Allegations in the First Amended Complaint

Plaintiff alleges that she was in a romantic relationship with Defendant Bendix from December 2018 to June 2020. (FAC, ¶11.) Following Defendant Bendix’s release from a sober living home, he invited Plaintiff to live with him at 5200 Wilshire Blvd. #637, Los Angeles, California (“the Apartment”). (Ibid.) Plaintiff and Defendant Bendix went to the leasing office in the apartment building and an agent for Defendant Essex, Lauren Knowles, gave Plaintiff a set for keys to the apartment. (Ibid.) Plaintiff lived at the apartment from August 2019 to August 2020. (Ibid.) Defendants Bendix and Nelson were named as co-lessors on the lease to the Apartment with Defendant Essex. (Ibid.)

During the time Plaintiff lived at the Apartment she was subjected to harassment and violence by Defendant Bendix. (Id. at ¶12.) Following an attack by Defendant Bendix on June 15, 2020, Plaintiff called the police and left the Apartment for a few days to stay with a friend. (Id. at ¶¶12-13.) However, Plaintiff left her possessions at the Apartment and still considered the Apartment her home. (Id. at ¶13.) On June 28, 2020, Defendant Bendix sent Plaintiff Defendant Essex’s notice to vacate the Apartment. (Id. at ¶14.) Upon Plaintiff’s return to the Apartment building on August 12, 2020, she realized she had left her wallet and keys in the Apartment. (Id. at ¶16.) Her keys had the keyfob that allowed access to the elevator to the residential units of the building. (Ibid.) When Plaintiff went to the leasing office to ask for access to the elevator, Defendant Essex’s agent, Stephanie Pelletier, would not let Plaintiff take the elevator up to the Apartment. (Ibid.) Pelltier claimed that Defendant Bendix instructed her not to let Plaintiff into the Apartment. (Ibid.)

On August 12, 2020, Defendant Bendix told Plaintiff he informed building management she had access to the Apartment until September 22, 2020, when the lease terminated. (Id. at ¶17.) Defendant Bendix made the same assertion in writing on August 16, 2020 and stated that Plaintiff “has not and will not be receiving an eviction notice.” (Ibid.) When Plaintiff tried to go back to the Apartment on August 17, 2020, she was again stopped by Pelltier in the lobby of the Apartment building. (Id. at 18.) Pelltier threatened to call security and Plaintiff left. (Ibid.) On September 25, 2020, Defendant Bendix allowed Plaintiff access to the Apartment to take her belongings. (Id. at ¶19.) On October 4, 2020, when Plaintiff returned to the Apartment, she discovered the locks had been changed by Defendant Essex. (Id. at ¶¶20, 29.) Plaintiff never received a valid and legal 30-day notice to vacate, 3-day notice to quit, or a complaint for unlawful detainer from any Defendant. (Id. at ¶21.) At all times, Plaintiff paid Defendant Bendix the rent he requested. (Id. at ¶22.)

1st Cause of Action for Wrongful Eviction in Violation of Cal. Civil Code § 1942.5

A cause of action for violation of Civil Code section 1942.5 sets forth the grounds on which a lessor engages in retaliatory eviction. Specifically, if a lessee is evicted “because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of” certain circumstances that are inapplicable to this case.

The parties’ primary dispute with respect to the allegations in support of this cause of action are whether Plaintiff has alleged she is entitled to protection under this statute. Defendant Essex contends that Plaintiff has not and cannot allege she is its lessee because there is no lease agreement between the two parties. Plaintiff responds that the statutory protection extends to all persons who “hire a dwelling unit” regardless of their designation. (Citing Civ. Code, § 1940, subd. (a).)

To the extent Plaintiff had rights under Civil Code section 1942.5 as a person who has hired a dwelling unit, there are no allegations to show that those rights are with respect to Defendant Essex. The lessor referred to Civil Code section 1942.5 is the person or entity with whom the lessee had a legal relationship based on the hiring of the dwelling unit. This is evident from subdivision (d) of the statute, which makes it unlawful for “a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee . . . .” (Civ. Code, § 1942.5, subd. (d).) In other words, the lessor is a person or entity with control over the conditions of the lease. The First Amended Complaint alleges that Plaintiff paid rent to Defendant Bendix and that Defendant Bendix gave her the notice to vacate. (FAC, ¶¶14, 22.) There are no allegations that Defendant Essex had any say in the rent Plaintiff paid, or that it could decrease the services provided to Plaintiff at the Apartment. Regardless of the allegation that Defendant Essex provided Plaintiff with keys to the Apartment, all the allegations are that Plaintiff’s agreement to lease the Apartment was with Defendant Bendix.

Plaintiff, therefore, has not alleged a cause of action for violation of Civil Code section 1942.5 against Defendant Essex. The demurrer to the first cause of action is sustained.

2nd Cause of Action for Violation of Civil Code §§ 789.3, 1940.2(a)(3), 1159

The second cause of action is entitled “Illegal Self-Help Eviction” and brought against all Defendants based on the facts recited above. The Court will consider whether Plaintiff has alleged the existence of a relationship between herself and Defendant Essex that gives rise to a violation under these statutes.

Civil Code section 789.3 specifically refers to conduct by the “landlord.” (Civ. Code, § 789.3.) Likewise, Civil Code section 1940.2 uses the term “landlord” to prohibit unlawful conduct to influence tenants to vacate. (Civ. Code, § 1940.2.) Regardless of various statutes that might include Plaintiff within their definition of “lessee”—Plaintiff cites to Los Angeles Municipal Code section 151.02, for example—there are no allegations to show that Plaintiff’s status as a tenant or lessee is vis-á-vis Defendant Essex. The facts of Parkmerced Co. v. San Francisco Rent Stabilization & Arbitration Bd. (1989) 215 Cal.App.3d 490, 492, to which Plaintiff cites, are distinguishable from this action. In Parkmerced, the renter who sought protection under San Francisco’s rent stabilization ordinances had paid rent to the owner using personal checks for years, despite her brother being the named lessee. (Parkmerced Co. v. San Francisco Rent Stabilization & Arbitration Bd. (1989) 215 Cal.App.3d 490, 492.) Therefore, Plaintiff has not alleged a cause of action for violation of Civil Code sections 789.3 or 1940.2.

Plaintiff also alleges Defendant Essex violated Code of Civil Procedure section 1159, which prohibits forcible entry, as follows:

(a) Every person is guilty of a forcible entry who either:

(1) By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property.

(2) Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.

(Code Civ. Proc., § 1159, subd. (a).) Plaintiff alleges that she tried to access the Apartment on October 4, 2020, but the locks had been changed by Defendant Essex. This is sufficient to allege that Defendant entered peaceably upon the Apartment and turned Plaintiff out by force. In the Demurrer, Defendant Essex argues that because its lease agreement with Defendant Bendix terminated on September 22, 2020, it did not have to allow Plaintiff access to the Apartment after that date.

However, the First Amended Complaint does not allege that Defendant Bendix’s lease agreement terminated on September 22, 2020. The allegation is that Defendant Bendix made a representation to Plaintiff that the lease would terminate on September 22, 2020. (FAC, ¶17.) Additionally, Plaintiff alleges that Defendant Essex did not allow her access to the Apartment on August 12 or 17, 2020, which was prior to the purported termination of the lease agreement. The Court additionally points to

Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1037, wherein the Court of Appeals sets forth principles regarding forcible entry and forcible detainer:

The forcible entry statute protects a “party in possession.” (Code Civ. Proc., § 1159.) “The ‘party in possession’ refers to any person who ‘hires' real property.” (Cal. Practice Guide: Landlord—Tenant, supra, ¶ 7:6, p. 7–3; see Civ.Code, §§ 1925, 1940.)

. . . .

For occupants in peaceful possession of real property, these statutes offer protection from self-help, without regard to the parties’ legal claims to title or possession. “The statutes ... reflect a policy, with deep roots in English law, barring the use of forceful self-help to enforce a right to possession of real property and requiring instead the use of judicial process to gain possession.” (Glass v. Najafi (2000) 78 Cal.App.4th 45, 48–49, 92 Cal.Rptr.2d 606.)

As the California Supreme has said: “Both before and after the enactment of the present forcible entry and detainer statutes this court held that ownership or right of possession to the property was not a defense to an action for forcible entry.” (Jordan v. Talbot (1961) 55 Cal.2d 597, 603, 12 Cal.Rptr. 488, 361 P.2d 20, fn. omitted.) Witkin explains: “A tenant holding over without permission is technically a trespasser. But by statute the owner must use the unlawful detainer procedure, and, if the owner ousts the tenant forcibly, the tenant may regain possession by an action for forcible entry.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 421, p. 636.) Landlords thus may enforce their rights “only by judicial process, not by self-help.” (Jordan v. Talbot, at p. 604, 12 Cal.Rptr. 488, 361 P.2d 20.) “Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.” (Id. at p. 605, 12 Cal.Rptr. 488, 361 P.2d 20; see also, e.g., Daluiso v. Boone (1969) 71 Cal.2d 484, 493, 78 Cal.Rptr. 707, 455 P.2d 811 [these statutes are “intended to discourage self-help in the settlement of disputes over possession of land and to encourage resort to the courts in all such matters”].)

(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1037-1039 (emphasis added).) The allegations by Plaintiff that Defendant Essex kept her from accessing the Apartment in August and October 2020, therefore, are sufficient to state a cause of action for forcible entry under Code of Civil Procedure section 1159 or forcible detainer under section 1160. That the lease with Defendant Bendix had terminated, even if so alleged, is no defense to these allegations.

(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1039.) 

The demurrer to the second cause of action, therefore, is overruled.

5th Cause of Action for Breach of Contract

“The essential elements of a claim of breach of contract, whether express or implied, are the contract, the plaintiff’s performance or excuse for nonperformance, the defendant's breach, and the resulting damages to the plaintiff.” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 433.) Plaintiff does not allege the existence of a contract between herself and Defendant Essex. The essential elements of a contract are mutual assent and consideration. (Chandler v. Roach (1957) 156 Cal.App.2d 435, 440.) Plaintiff does not allege that she and Defendant agreed to any lease terms or that consideration was exchanged. (See FAC, ¶59.) Rather, she simply alleged that Defendant Essex gave her keys to the Apartment. (Ibid.) Nor can Plaintiff allege that a subtenancy was thereby created without supporting factual allegations. (See ibid.) A demurrer must admit all material facts properly pleaded, but does not admit contentions, deductions or conclusions of fact or law. (Sych v. Insurance Co. of North America (1985) 173 Cal.App.3d 321, 326.)

Therefore, Plaintiff has not alleged facts sufficient to state a cause of action for breach of contract against Defendant Essex. The demurrer to the fifth cause of action is sustained.

Leave to Amend

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.) Plaintiff’s opposition makes no contention that she can amend the first and fifth causes of action to state claims against Defendant Essex. Therefore, the demurrer to those causes of action are sustained without leave to amend.

Conclusion

Defendant Essex Property Trust, Inc.’s Demurrer to the First Amended Complaint is sustained without leave to amend as to the first and fifth causes of action, and overruled as to the second cause of action.

Motion to Strike Portions of First Amended Complaint

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 which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) However, in a court of limited jurisdiction, motions to strike may only be brought on grounds that the allegations do not support the request for relief or damages. (Code Civ. Proc., § 92, subd. (c).)

Defendant Essex moves to strike the allegations in support of the request for punitive damages and attorney’s fees set forth in connection with the three causes of action alleged against it.

Pursuant to the ruling on Defendant Essex’s Demurrer, the request to strike the punitive damages and attorney’s fees allegations set forth in the first and fifth causes of action, at paragraphs 32, 33 and 63, is deemed moot. The request to strike the punitive damages and attorney’s fees allegations in the second cause of action remains at issue.

A request for punitive damages may be made pursuant to Cal. Civil Code 3294, which provides, as follows: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civil Code, § 3294, subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294, subd. (c)(2).)

The allegations of forcible entry in the First Amended Complaint are sufficient to allege that Defendant Essex acted with malice or oppression. Keeping Plaintiff from accessing the Apartment without legal process amounts to despicable conduct insofar as it deprived Plaintiff of her home and personal possessions. This also arguably subjected Plaintiff to cruel and unjust hardship. The allegations in support of punitive damages are supported by the facts in the First Amended Complaint.

However, the fifth cause of action of the First Amended Complaint does not include a basis for attorney’s fees, which must be sought pursuant to contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)

The Motion to Strike is granted without leave to amend as to paragraphs 32, 33, 43 and 63 of the First Amended Complaint and denied as to paragraph 44.

Conclusion

Defendant Essex Property Trust, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST AND FIFTH CAUSES OF ACTION, AND OVERRULED AS TO THE SECOND CAUSE OF ACTION.

Defendant Essex Property Trust, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND AS TO PARAGRAPHS 32, 33, 43 AND 63 OF THE FIRST AMENDED COMPLAINT AND DENIED AS TO PARAGRAPH 44.

DEFENDANT ESSEX PROPERTY TRUST, INC. IS TO FILE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN TEN (10) DAYS’ SERVICE OF THIS ORDER.

Plaintiff to give notice.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where CALIFORNIA VICTIM COMPENSATION BOARD is a litigant

Latest cases where ESSEX PROPERTY TRUST INC. A MARYLAND CORPORATION is a litigant

Latest cases represented by Lawyer KONSTAD ANDREA LOREEN