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This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 04:37:35 (UTC).

JOSE FLORES ET AL VS MICHELLE MURPHY ET AL

Case Summary

On 08/14/2017 JOSE FLORES filed a Property - Other Real Property lawsuit against MICHELLE MURPHY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2239

  • Filing Date:

    08/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiffs, Petitioners and Respondents

FLORES JOSE

OCHOA BIANCA

REYES LILIAN

GIBSON AZIZ

WEAVER JAMES

HIMAYA LATASHA

Plaintiffs and Petitioners

FLORES JOSE

OCHOA BIANCA

REYES LILIAN

GIBSON AZIZ

WEAVER JAMES

Defendants and Respondents

DAVIS REVOYDA T.

MURPHY MICHELLE

DE LA CRUZ DANIEL

HIMAYA LATASHA

LEON CHRIS

DAVIS REVOYDIA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RODRIGUEZ JESUS A. ESQ.

GUZMAN VANESSA

RODRIGUEZ JESUS ANGEL

Defendant and Respondent Attorneys

ALDESCO LAW FIRM

ALDESCO ALBERT

ZAKARI ANDRE

MARVAN JEFFREY

 

Court Documents

REQUEST FOR ENTRY OF DEFAULT

2/23/2018: REQUEST FOR ENTRY OF DEFAULT

REQUEST FOR ENTRY OF DEFAULT

2/23/2018: REQUEST FOR ENTRY OF DEFAULT

Minute Order

4/24/2018: Minute Order

2ND AMENDED PROOF OF SERVICE SUMMONS

7/2/2018: 2ND AMENDED PROOF OF SERVICE SUMMONS

Unknown

7/24/2018: Unknown

Minute Order

8/8/2018: Minute Order

NOTICE OF COURT ORDER OF AMENDMENT TO COMPLAINT [CORRECTION OF DEFENDANT'S NAME] AND PROOF OF SERVICE

8/9/2018: NOTICE OF COURT ORDER OF AMENDMENT TO COMPLAINT [CORRECTION OF DEFENDANT'S NAME] AND PROOF OF SERVICE

Minute Order

12/5/2018: Minute Order

Notice of Ruling

1/15/2019: Notice of Ruling

Answer

2/13/2019: Answer

Objection

3/5/2019: Objection

Request for Judicial Notice

4/4/2019: Request for Judicial Notice

Minute Order

4/11/2019: Minute Order

Proof of Service by Mail

4/24/2019: Proof of Service by Mail

Minute Order

5/2/2019: Minute Order

PROOF OF SERVICE SUMMONS

12/18/2017: PROOF OF SERVICE SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE

8/22/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

SUMMONS

8/14/2017: SUMMONS

68 More Documents Available

 

Docket Entries

  • 05/02/2019
  • at 3:00 PM in Department 49; Informal Discovery Conference (IDC) - Held

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  • 05/02/2019
  • Minute Order ( (Informal Discovery Conference (IDC))); Filed by Clerk

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  • 04/25/2019
  • at 08:30 AM in Department 49; Jury Trial - Not Held - Advanced and Vacated

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  • 04/24/2019
  • Proof of Service by Mail; Filed by Jose Flores (Plaintiff); Aziz Gibson (Plaintiff); Latasha Himaya (Plaintiff) et al.

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  • 04/24/2019
  • Proof of Service by Mail; Filed by Jose Flores (Plaintiff); Aziz Gibson (Plaintiff); Latasha Himaya (Plaintiff) et al.

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  • 04/19/2019
  • Answer (TO PLAINTIFF'S FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL); Filed by Michelle Murphy (Defendant)

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  • 04/12/2019
  • Notice (of Trial Setting Conference and Status Conference re Mediation Completion); Filed by Jose Flores (Plaintiff); Aziz Gibson (Plaintiff); Latasha Himaya (Plaintiff) et al.

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  • 04/11/2019
  • at 08:30 AM in Department 49; Final Status Conference - Not Held - Advanced and Vacated

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  • 04/11/2019
  • at 08:30 AM in Department 49; Order to Show Cause Re: (sanctions against defense counsel not present 1-14-19 (represent Murphy); and a Further Status Conference regarding mediation/ conservator proceedings;) - Held

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  • 04/11/2019
  • Minute Order ( (Order to Show Cause Re: sanctions against defense counsel not...)); Filed by Clerk

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120 More Docket Entries
  • 10/13/2017
  • DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL CIVIL

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  • 10/13/2017
  • NOTICE OF MOTION AND MOTION TO BE RELIEVED AS COUNSEL CIVIL

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  • 08/22/2017
  • OSC-RE Other (Miscellaneous); Filed by Clerk

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  • 08/22/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 08/22/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 08/22/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/14/2017
  • SUMMONS

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  • 08/14/2017
  • STATEMENT OF DAMGAGES

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  • 08/14/2017
  • COMPLMNT FOR: 1. TORTIOUS BREACH OF WARRANTY OF HABITABILITY (NEGLIGENCE); ETC

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  • 08/14/2017
  • Complaint; Filed by JOSE FLORES (Plaintiff); LILIAN REYES (Plaintiff); AZIZ GIBSON (Plaintiff) et al.

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Tentative Rulings

Case Number: BC672239    Hearing Date: September 30, 2020    Dept: 76

Plaintiff allege a variety of habitability violations which Defendants have failed to repair and address.

Attorney Maravanlaw, A.P.C., moves to be relieved as counsel for Defendant Daniel De La Cruz.

Defendant Caitlin Cogan, the Successor Trustee of the R.T. Davis 2006 Revocable Trust May 2, 2016 (Doe 3) demurs to the First Amended Complaint and moves to strike portions thereof.

TENTATIVE RULING

Attorney Maravanlaw, A.P.C.’s motion to be relieved as counsel for Defendant Daniel De La Cruz is GRANTED, with counsel to be relieved upon filing of a proof of service of the Court's order granting the motion upon Defendant Daniel De La Cruz.

Defendant Caitlin Cogan, the Successor Trustee of the R.T. Davis 2006 Revocable Trust May 2, 2016 (Doe 3) demurrer to the First Amended Complaint is OVERRULED as to the second, fourth, fifth, sixth, seventh, eighth, tenth, and eleventh causes of action. The demurrer is MOOT as to the non-existent sixteenth cause of action.

The motion to strike is DENIED as to ¶ 9, Page 6:2, ¶ 14, Page 8:9-10, Page 23:3, Page 24:24, Page 26:21, Page 27:18 and GRANTED with leave to amend as to ¶ 18, Page 9 and ¶IX, Page 38:13 (references to all Defendants), ¶ 24, Page 10:23-25, ¶ 84, Page 23:4-5, ¶ 95, Page 26:10-11, ¶ 101, Page 27:15-16, ¶ 107,, Page 107:10-11, ¶ 117, Page 30:10, ¶ 121, Page 31:7-8, ¶ 125, Page 32:3-4, ¶ 134, Page 33:21-23 (punitive damages).

Plaintiffs are given 30 days leave to amend.

ANALYSIS

Motion To Be Relieved As Counsel

Attorney Maravanlaw, A.P.C., moves to be relieved as counsel for Defendant Daniel De La Cruz.

California Rules of Court, Rule 3.1362 requires that the following Mandatory Judicial Council forms be filed for a motion to be relieved as counsel: Notice of Motion and Motion to Be Relieved as Counsel--Civil (form MC-051); Motion to Be Relieved as Counsel--Civil (form MC-052); and Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053). (See Calif. Rules of Court, Rule 3.1362(a), (c), (e).) These three forms must be served on must be served on the client and on all other parties who have appeared in the case. (Calif. Rules of Court, Rule 3.1362(d).)

The Court may issue an order allowing an attorney to withdraw from representation, after notice to the client. (Code Civ. Proc., § 284(2).) n attorney may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the client's interest - i.e., counsel cannot withdraw at a critical point in the litigation because that would prejudice client, but can withdraw otherwise. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) The court has discretion to deny an attorney’s request to withdraw where such withdraw would work an injustice or cause undue delay in the proceeding; but the court’s discretion in this area is one to be exercised reasonably. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)

There has been an irreparable breakdown in the attorney-client relationship and counsel cannot effectively represent the client. (Declaration, ¶ 2.)

There is currently no trial date set, which gives the client an opportunity to locate new counsel if he chooses to do so. He may also represent himself in pro per.

Here, permitting withdrawal of counsel is appropriate, as defense counsel cannot prepare without the client’s cooperation.

The motion to be relieved as counsel is GRANTED. This order shall become effective upon the filing of the proof of service of the signed order upon the client.

Demurrer

Meet and Confer

The Declaration of Suzanna R. Harman reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Discussion

Defendant Caitlin Cogan, the Successor Trustee of the R.T. Davis 2006 Revocable Trust May 2, 2016 (Doe 3) demurs to the First Amended Complaint.

Plaintiffs’ Opposition exceeds the 15-page limit set forth in CRC Rule 3.1113(d) & (e) without having received permission. A memorandum filed in excess of the page limits “must be filed and considered in the same manner as a late-filed paper.” (Calif. Rules of Court, Rule 3.1113(g).) The Court has discretion to disregard a late-filed brief. (Calif. Rules of Court, Rule 3.1300(d).) Accordingly, while the Court could completely disregard the entirety of the opposition, instead, the Court will only read the first 15 pages of the Opposition.

1. Second Cause of Action (Tortious Breach of Warranty of Habitability—Intentional Tort) and Fourth Cause of Action (Breach of Warranty of Habitability—Contract).

Defendant argues that these causes of action are duplicative and superfluous of the first cause of action for tortious breach of warranty of habitability—negligence and the third cause of action for breach of warranty of habitability—statute.

These arguments are not persuasive.

First, the breach of warranty of habitability—contract claim is proper because the covenant is implied in the lease. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1296-97.)

The California Supreme Court has held that because “under contemporary conditions, public policy compels landlords to bear the primary responsibility for maintaining safe, clean and habitable housing in our state,” there is a warranty of habitability implied in residential leases in California. (Green, supra, 10 Cal.3d at p. 627.) In Green, the court explained that “[t]his [*1297]  implied warranty of habitability does not require that a landlord ensure that leased premises are in  perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained. In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord's obligations under the common law implied warranty of habitability we now recognize.” (Id. at p. 637, fns. omitted.) The court held that a tenant may assert the landlord's breach of the implied warranty of habitability as a defense to an unlawful detainer proceeding. (Id. at pp. 631–637.) Moreover, a landlord's obligation to maintain premises in a habitable condition is one that continues throughout the term of the lease. (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204 [43 Cal. Rptr. 2d 836, 899 P.2d 905].) In the event of a landlord's breach of the implied warranty of habitability, the tenant is not absolved of the obligation to pay rent; rather the tenant remains liable for the reasonable rental value as determined by the court for the period that the defective condition of the premises existed. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914 [162 Cal. Rptr. 194]; Hinson v. Delis (1972) 26 Cal.App.3d 62, 70 [102 Cal. Rptr. 661], disapproved on another ground in Knight, supra, 29 Cal.3d 46, 55, fn. 7; see Code Civ. Proc., § 1174.2, subd. (a) [in unlawful detainer action after nonpayment of rent, where tenant proves substantial breach of habitability warranty, court determines reasonable rental value of premises in its untenantable condition].)

(Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1296-97.)

Second, the breach of warranty of habitability—intentional tort claim is proper because the existence of the statutory remedy set forth in Civil Code §§ 1941 through 1942.1 does not preclude a common law implied warranty of habitability. (Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 629.) Moreover, an intentional breach of the warranty of habitability amounting to a willful failure to correct defective conditions of the premises may sound in the nature of intentional infliction of emotional distress. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921-22.)

Although the second cause of action is captioned as an intentional breach of the warranty of habitability, and the 1AC does not contain a cause of action for intentional infliction of emotional distress, the second cause of action seeks recovery for emotional distress resulting from Defendants’ willful failure to correct the substandard conditions. (1AC, ¶¶ 63, 64.) “Regardless of the title or label  [*79]  attached by the plaintiff to an alleged cause of action, if the factual allegations of the complaint state a cause of action on any available legal theory, that aspect of the complaint is good against a demurrer. (Citations omitted.)” (Lee Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 73, 78-79.)

Accordingly, the second and fourth causes of action do not fail as duplicative, superfluous or uncertain.

The demurrer to the second and fourth causes of action is OVERRULED.

2. Fifth Cause of Action (Violation of Civil Code § 1940.2—Menacing Conduct); Sixth Cause of Action (Violation of Civil Code § 1942.5—Retaliation); Seventh Cause of Action (Assault); Eighth Cause of Action (Battery).

These causes of action are asserted against Defendants Michelle Murphy, as trustee and as an individual and Chris Leon. The

Because a trust cannot be sued, the trustee is the real party in interest to defend on the trust’s behalf. (Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.) In this regard, Demurring Defendant Caitlin Cogan, the Successor Trustee of the R.T. Davis 2006 Revocable Trust May 2, 2016 (Doe 3) is properly named in this regard because a successor trustee “succeed[s] to all (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293-294.) (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1131.)

Moreover, a third person with a claim against a trustee may sue the successor trustee to assert a claim against trust assets. Thereafter, the question of ultimate liability as between the trust estate and the trustee is determined by separate proceedings pursuant to Probate Code § 18805[1]. (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 294.)

The California Law Revision Commission in discussing proposed Probate Code section 18004 prior to its enactment stated, “The third person should not have to be concerned with the source of the fund that will be used to pay the claim. [Fn. omitted.] The proposed law adopts this position. Hence, a third person with a claim against the trust or trustee may assert the claim against the trust by bringing an action against the trustee in the trustee's representative capacity. [Fn. omitted.] The question of ultimate liability as between the trust estate and the trustee may then be determined in proceedings concerning the internal affairs of the trust or may be settled informally among the parties to the trust. [Fn. omitted.]” (Recommendation Proposing the Trust Law (Dec. 1985) 18 Cal. Law Revision Com. Rep. (1986) p. 592.)

There is no meaningful distinction between the liability of the decedent trustee who committed a tort as trustee and the successor trustee in her capacity as trustee, except that the decedent trustee's estate might also be liable. Plaintiffs attempt to draw a distinction between the decedent trustee, on the one hand, and the trust (which, as noted, is not an entity or proper party) and successor trustee, on the other hand, for purposes of the application of section 366.2. The authorities do not support such a distinction.

(Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 294 [bold emphasis and underlining added].)

Here, the 1AC alleges that Defendant Murphy, and her agents, including Defendant Leon and Does 1 and 2, would yell at certain Plaintiffs and threaten the in connection with their use, occupancy, or vacating of units on the property. (See 1AC, ¶¶ 42 – 46.) Whether or not these actions were performed on behalf of the Trust’s control of the property and thus are properly chargeable against Trust assets is a question of fact outside the scope of this demurrer.

Defendant argues that there are no facts pled that the conduct was authorized by the Trust. However, the Trust cannot authorize anything as it is not a legal entity, but rather a collection of assets and liabilities. (See Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 522.)

Defendant argues that Plaintiffs cannot seek to hold Defendant Murphy individually liable, and also in her trustee capacity. However, Probate Code § 18002 recognizes that “A trustee is personally liable for torts committed in the course of administration of the trust only if the trustee is personally at fault.” This would be in addition to proceeding against the trustee in a representative capacity to recover from trust assets, which is proper even if the trustee is also personally liable on the claim.

Applying these principles, we note that none of the provisions of section 18004, when given their plain and common sense meanings, confer upon a creditor the absolute right to proceed against the trustee's personal assets for payment of a claim. The statute's words plainly state that the enumerated types of claims "may be asserted against the trust by proceeding against the trustee in the trustee's representative capacitywhether or not the trustee is personally liable on the claim." (Italics added.) This language plainly confers a right to proceed against the assets of the trust. The final clause, stating "whether or not the trustee is personally liable on the claim," does not confer an absolute right to proceed against the trustee's personal assets. Rather, it plainly suggests that the creditor may seek payment of a claim from the personal assets of the trustee only if the trustee is "personally liable." The Law Revision Commission comment on the 1990 enactment of section 18004 supports the foregoing interpretation of that section. "Section 18004 alters the prior case law rule that the trustee could not be sued in a representative capacity where the trust estate was not liable. [Citations.]" (Cal. Law Revision Com. com., 54A West's Ann. Prob. Code, supra, foll. § 18004, p. 239, italics added.)

(Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 880 [bold emphasis added].)

Accordingly, the fifth, sixth, seventh and eighth causes of action are properly pled.

The demurrer to the fifth, sixth, seventh and eighths causes of is OVERRULED.

7. Tenth Cause of Action (Breach of Covenant of Quiet Enjoyment—Intentional Tort).

Defendant argues that this cause of action is duplicative of the twelfth cause of action for breach of covenant of quiet enjoyment—negligence. This argument is not persuasive because landlord can breach the covenant either by intentional or negligent acts. (See Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1301.) Of course, intentional breach committed with malice, oppression or fraud exposes a defendant to punitive damages.

As to appellant's remaining causes of action for constructive eviction, breach of the covenant of quiet enjoyment, and retaliatory eviction, we note that every lease includes a covenant of quiet possession and enjoyment. (Civ. Code, § 1927.) This covenant is breached upon actual or constructive eviction of the tenant. (McAlester v. Landers (1886) 70 Cal. 79, 82 [11 P. 505].) Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant [*1300]  so elects and vacates within a reasonable time. (Kulawitz v. Pacific Woodenware Paper Co. (1944) 25 Cal.2d 664, 670 [155 P.2d 24]; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612–613 [272 P.2d 938].)

As this court explained recently, “‘[i]t has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. [Citations.] Initially, the covenant related solely to the right of possession and only protected the lessee against any act of molestation committed by the landlord or anyone claiming under him, or by someone with paramount title, which directly affected the tenant's use and possession of the leased premises; the covenant was construed to protect the lessee against physical interference only. [Citation.] In recent years, the covenant of quiet enjoyment has been expanded, and in this state, for example, it insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]’ [Citations.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291–292 [167 Cal. Rptr. 3d 173] (Nativi).)

Further, “[i]t is not necessary to show that the landlord acted with the subjective intent to compel the tenant to leave the property or deprive the tenant of quiet enjoyment. [Citation.] There is a ‘presumption that a landlord intends the natural and probable consequences of his acts; and where the acts of the landlord effectively deprive the tenant of the use and enjoyment of the premises, the intent to evict is implied from the character of the acts done. [Citations.]’ (Nativi, supra, 223 Cal.App.4th at p. 292.)

Simply put, “‘[A]ny disturbance of the tenant's possession by the lessor or at his procurement … which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time. [Citations.]’ [Citations]. The Supreme Court stated in Standard Livestock Co. v. Pentz (1928) 204 Cal. 618, 625 [269 P. 645] … that ‘the covenant of quiet possession in a lease is not breached until there has been an actual or constructive eviction.’ Nevertheless, some authorities recognize that a tenant may sue for breach of the covenant while remaining in possession. [Citations.]” (Nativi, supra, 223 Cal.App.4th at p. 292.)

(Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1301 [bold emphasis added].)

The Court does not find Defendant’s argument that the tenth cause of action fails as duplicative of the twelfth cause of action.

The demurrer to the tenth cause of action is OVERRULED.

8. Eleventh Cause of Action (Nuisance—Intentional Tort).

Defendant argues that the eleventh cause of action for nuisance—intentional tort is duplicative of the thirteenth cause of action for nuisance--negligence.

Defendant ignores the proposition she cites, set forth in Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903: “A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable (Citation omitted).” (Id. at 920.)

As such, Plaintiffs may assert causes of action for nuisance based on negligence or intentional tort (with the possibility of punitive damages).

The demurrer to the eleventh cause of action is OVERRULED.

9. Sixteenth Cause of Action (Non-existent).

Although the face page indicates that the sixteenth cause of action is for injunctive relief, the body of the First Amended Complaint does not contain a sixteenth cause of action. As such, the demurrer to the sixteenth cause of action is MOOT.

Motion To Strike

Meet and Confer

The Declaration of Suzanna R. Harman reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Discussion

Defendant Caitlin Cogan, the Successor Trustee of the R.T. Davis 2006 Revocable Trust May 2, 2016 (Doe 3) moves to strike the following portions of the 1AC:

u "(collective referred to, in capacity as an individual and as trustee, as "MURPHY")" (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 6, ¶ 9, line 2) – DENY.

Defendant’s argument that Plaintiffs must choose whether to sue Murphy in her individual capacity or as trustee, but not both, is not persuasive for the reasons discussed above in the demurrer.

u "who are the previous landlords of the building," (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 8, ¶ 14, lines 9-10) – DENY.

Whether moving Defendant is a successor, not a previous, landlord of the building is a matter outside the face of the Complaint, at least where Defendant did not demonstrate this by way of judicially-noticed documents. “(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437(a).)

u "Whenever and wherever reference is made in this Complaint to any act or failure to act by a Defendant or Defendants, such allegations and reference shall also be deemed to mean the acts and failures to act of each Defendant, whether acting individually, or jointly and severally." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 9, ¶ 18) – GRANT with leave to amend.

Plaintiffs must allege facts as to what acts or failure to act are attributed to moving Defendant Cogan, who was substituted in as Doe 3.

u "Defendants' conduct in failing and/or refusing to abate uninhabitable conditions has been grossly negligent, malicious and oppressive, in that without good cause and in willful and conscious disregard of the rights or safety of Plaintiffs," (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 10, ¶ 24, lines 23-25) – GRANT with leave to amend.

Punitive damages may be imposed upon a trustee (Vale v. Union Bank , but Plaintiffs must allege facts as to what acts or failure to act are attributed to moving Defendant Cogan, who was substituted in as Doe 3, which constitute malice, oppression or fraud as to those terms are defined in Civil Code § 3294(c).

u "thereby entitling each Plaintiff to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 11, ¶ 24, lines 1- 2) – GRANT with leave to amend.

See above at 4.

u "as trustee" (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 23, line 3) – DENY.

See above at 1.

u "entitling said Plaintiffs to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 23, ¶ 84, lines 4-5) – GRANT with leave to amend.

See above at 4.

u "as trustee" (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 24, line 24) – DENY.

See above at 1.

u "entitling said Plaintiffs to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 26, ¶ 95, lines 10-11) – GRANT with leave to amend.

See above at 4.

u "as trustee" (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 26, line 21) – DENY.

See above at 1.

u "entitling said Plaintiffs to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 27, ¶ 101, lines 15-16) – GRANT with leave to amend.

See above at 4.

u "as trustee" (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 27, line 18) – DENY.

See above at 1.

u "entitling said Plaintiffs to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 28, ¶ 107, lines 10-11) – GRANT with leave to amend.

See above at 4.

u "punitive damages" (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 30, ¶ 117, line 10) – GRANT with leave to amend.

See above at 4.

u "thereby entitling each Plaintiff to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 31, ¶ 121, lines 7-8) – GRANT with leave to amend.

See above at 4.

u "thereby entitling each Plaintiff to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 32, ¶ 125, lines 3-4) – GRANT with leave to amend.

See above at 4.

u "thereby entitling each Plaintiff to punitive damages in an amount to be determined at trial." (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 33, ¶ 134, lines 21-23) – GRANT with leave to amend.

See above at 4.

u "As to all Defendants," (PLAINTIFFS' FIRST AMENDED COMPLAINT, page 38, ¶ IX, line 13) – GRANT with leave to amend.

See above at 3.

Plaintiffs are given 30 days leave to amend.


[1]The question of liability as between the trust estate and the trustee personally may be determined in a proceeding under Section 17200.” (Prob. Code, § 18005.)