SHELLY HART VS LASALLE PROPERTY FUND REIT, INC, ET AL.

Tentative Rulings

Case Number: *******1030 Hearing Date: September 11, 2023 Dept: T

*******1030 HART V. LASALLENOTICE OF MOTION AND MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUEST FOR ADMISSIONS, SET NO. 1 ADMITTED AS TO DEFENDANT KYLE DUPREE; TO STRIKE GENERAL OBJECTIONS AND PRELIMINARY STATEMENT, OR IN THE ALTERNATIVE FOR AN ORDER COMPELLING FURTHER RESPONSES AND REQUEST FOR ORDER AWARDING MONETARY SANCTIONS AGAINST DEFENDANT AND DEFENSE COUNSEL IN THE SUM OF $87.65

Tentative ruling-no timely opposition was filed. The court has discretion to consider untimely oppositions and elects to do so in the interests of consideration of the matter on the merits and not on a technical defect, particularly as counsel admits fault for the untimely opposition and explains how it occurred. Having considered the untimely opposition, the court finds that it has nothing of substance that affects the court's decision.

The court does not grant issue sanctions at this time as the court ordinarily reserves it as a sanction for violation of a court order, which had not occurred here. However, if there are repeated discovery abuses, the court may elect to consider them in the future, even in the absence of violation of a court order. This applies to all parties.

Deny as to Deemed Admitted. Otherwise Grant the motion. The specific objections in the original responses and the further responses to RFA numbers 1-86 are frivolous and are stricken. All general objections, reservations, and preliminary statements are improper as they are to be specific to each request and those are also stricken. Defendant Dupree to serve verified Code Compliant answers to the Request for Admissions without objection within 10 days. Monetary sanctions as requested in the Notice of Motion of $87.65 are assessed against defendant Kyle Dupree and the firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, jointly and severally, pursuant to CCP section 2023.010 and 2033.280 for discovery abuse without substantial justification, to be paid to Shelly Hart at 21781 Ventura Blvd. No. 311, Woodland Hills, CA 91364 no later than 9/29/2023.

NOTICE OF MOTION AND MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUEST FOR ADMISSIONS, SET NO. 1 ADMITTED AS TO DEFENDANT LASALLE INVESTMENT MANAGEMENT, INC.; TO STRIKE GENERAL OBJECTIONS; OR IN THE ALTERNATIVE TO COMPEL FURTHER RESPONSES AND REQUEST FOR ORDER AWARDING MONETARY SANCTIONS AGAINST DEFENDANT AND DEFENSE COUNSEL

Tentative ruling-no timely opposition was filed. The court has discretion to consider untimely oppositions and elects to do so in the interests of consideration of the matter on the merits and not on a technical defect, particularly as counsel admits fault for the untimely opposition and explains how it occurred. Having considered the untimely opposition, the court finds that it has nothing of substance that affects the court's decision.

The court does not grant issue sanctions at this time as the court ordinarily reserves it as a sanction for violation of a court order, which had not occurred here. However, if there are repeated discovery abuses, the court may elect to consider them in the future, even in the absence of violation of a court order. This applies to all parties.

NOTICE OF MOTION AND MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUEST FOR ADMISSIONS, SET NO. 1 ADMITTED AS TO DEFENDANT LASALLE PROPERTY FUND REIT, INC.; TO STRIKE GENERAL OBJECTIONS; TO COMPEL FURTHER RESPONSES AND REQUEST FOR ORDER AWARDING MONETARY SANCTIONS AGAINST DEFENDANT AND DEFENSE COUNSEL

Tentative ruling-no timely opposition was filed. The court has discretion to consider untimely oppositions and elects to do so in the interests of consideration of the matter on the merits and not on a technical defect, particularly as counsel admits fault for the untimely opposition and explains how it occurred. Having considered the untimely opposition, the court finds that it has nothing of substance that affects the court's decision.

The court does not grant issue sanctions at this time as the court ordinarily reserves it as a sanction for violation of a court order, which had not occurred here. However, if there are repeated discovery abuses, the court may elect to consider them in the future, even in the absence of violation of a court order. This applies to all parties.

O'BRIEN DEMURRER AND MOTION TO STRIKE

[TENTATIVE] ORDER: Defendant Deanna O'Brien's Demurrer is OVERRULED. Defendant Deanna O'Brien's Motion to Strike is DENIED. Defendant Deanna O'Brien's Request for Judicial Notice is DENIED.

Defendant Deanna O'Brien is ordered to file an Answer in 20 days.

INTRODUCTION

Defendant Deanna O'Brien (Defendant) demurred to Plaintiff Shelly Hart's (Plaintiff) Complaint. Defendant's demurrer placed into issue the entire complaint based upon "another action pending;" the eighth COA for Fair Employment and Housing Act (FEHA) violation; the tenth COA for tortious interference with contractual relations; the eleventh COA for aiding and abetting tort; the twelfth COA for Unruh Act violation; and the fourteenth COA for intentional infliction of emotional distress (IIED). Defendant moved to strike Plaintiff's request for punitive damages.

DISCUSSION

A. ANOTHER ACTION PENDING

Defendant argued that "there is another action pending between the same parties on the same cause of action." (Code Civ. Proc. sec. 430.10(c).) Defendant cites the Court to Hart v. Sullivan (Super. Ct. Los Angeles County, pending, No. 19STCV40526) (Sullivan Action). The supervising judge of the Civil Department ordered that these two cases are unrelated. The Court does not take judicial notice of the Sullivan action. On the face of the instant action's Complaint, facts or allegations were not alleged to show another action pending on all of the identical causes of action. Defendant acknowledged that there were some overlap, but did not argue that the instant Complaint is identical to the Sullivan action. Facts not pleaded in the instant Complaint or which are not judicially noticeable are disregarded. The demurrer on the "another action pending" argument is OVERRULED.

B. EIGHTH COA FOR FEHA VIOLATION/TWELFTH COA FOR UNRUH ACT VIOLATION

Defendant argued that the eighth COA for FEHA violation are barred by the statute of limitations (SOL). However, alleged discriminatory conduct is stated in the Complaint to have occurred between August 2022 and March 2023. Because the alleged discrimination was pled to have occurred within the applicable SOL, the SOL argument is rejected.

Defendant also argued that the factual allegations of the Complaint are insufficient to establish a COA for FEHA violation. There are several ways in which a FEHA violation may be alleged. They include disparate treatment, disparate impact, and retaliation, The complaint alleged facts sufficient to constitute an action for all three based upon Plaintiff's gender and martial status claims. The demurrer to the eighth COA for FEHA violation is OVERRULED. For these same reasons, the demurrer to the twelfth COA for Unruh Act violations is OVERRULED.

C. TENTH COA FOR TORTIOUS INTERFERENCE

The tenth COA for tortious interference stated facts sufficient to constitute a COA against Defendant. Among other things, the Complaint alleged that Defendant took steps to interfere with her right to quiet enjoyment in her lease agreement, that Defendant knew of the contract and that Defendant's intentional conduct prevented her from receiving the benefits of that contract thereby causing her damages. The demurrer to the tenth COA for tortious interference is OVERRULED.

D. ELEVENTH COA FOR AIDING AND ABETTING

The eleventh COA for aiding and abetting ALLEGED THAT Defendant gave substantial assistance to the on-site staff that engaged in harassing and discriminatory conduct toward Plaintiff, in particular, by intentionally ignoring her complaints and allowing the harassing and discriminatory conduct to occur. The demurrer to the eleventh COA for aiding and abetting is OVERRULED.

E. FOURTEENTH COA FOR IIED

The fourteenth COA for IIED is alleged with sufficient facts to support the element of extreme and outrageous conduct based upon the factual allegations showing harassment. Further, Plaintiff alleged sufficient facts to plead severe or extreme emotional distress. The demurrer to the fourteenth COA for IIED is OVERRULED.

MOTION TO STRIKE

The motion to strike punitive damages is DENIED as to paragraph 134 and Prayer no. 8 for the reasons set forth in the discussion of the demurrer on the IIED COA.

SAPP DEMURRER AND MOTION TO STRIKE

[TENTATIVE] ORDER: Defendant Steven Lenard Sapp’s Demurrer is OVERRULED. Defendant Steven Lenard Sapp’s Motion to Strike is DENIED. Defendant Steven Lenard Sapp’s Request for Judicial Notice is DENIED.

Defendant Steven Lenard Sapp is ordered to file an Answer in 20 days.

INTRODUCTION

Defendant Steven Lenard Sapp (Defendant) demurred to Plaintiff Shelly Hart’s (Plaintiff) Complaint. Defendant’s demurrer placed into issue the entire complaint based upon “another action pending;” the eighth COA for Fair Employment and Housing Act (FEHA) violation; the tenth COA for tortious interference with contractual relations; the eleventh COA for aiding and abetting tort; the twelfth COA for Unruh Act violation; and the fourteenth COA for intentional infliction of emotional distress (IIED). Defendant moved to strike Plaintiff’s request for punitive damages.

DISCUSSION

A. ANOTHER ACTION PENDING

Defendant argued that “there is another action pending between the same parties on the same cause of action.” (Code Civ. Proc. sec. 430.10(c).) Defendant cites the Court to Hart v. Sullivan (Super. Ct. Los Angeles County, pending, No. 19STCV40526) (Sullivan Action). The supervising judge of the Civil Department ordered that these two cases are unrelated. The Court does not take judicial notice of the Sullivan action. On the face of the instant action’s Complaint, facts or allegations were not alleged to show another action pending on all of the identical causes of action. Defendant acknowledged that there were some overlap, but did not argue that the instant Complaint is identical to the Sullivan action. Facts not pleaded in the instant Complaint or which are not judicially noticeable are disregarded. The demurrer on the “another action pending” argument is OVERRULED.

B. EIGHTH COA FOR FEHA VIOLATION/TWELFTH COA FOR UNRUH ACT VIOLATION

Defendant argued that the eighth COA for FEHA violation are barred by the statute of limitations (SOL). However, alleged discriminatory conduct is stated in the Complaint to have occurred between August 2022 and March 2023. Because the alleged discrimination was pled to have occurred within the applicable SOL, the SOL argument is rejected.

Defendant also argued that the factual allegations of the Complaint are insufficient to establish a COA for FEHA violation. There are several ways in which a FEHA violation may be alleged. They include disparate treatment, disparate impact, and retaliation, The complaint alleged facts sufficient to constitute an action for all three based upon Plaintiff’s gender and martial status claims. The demurrer to the eighth COA for FEHA violation is OVERRULED. For these same reasons, the demurrer to the twelfth COA for Unruh Act violations is OVERRULED.

C. TENTH COA FOR TORTIOUS INTERFERENCE

The tenth COA for tortious interference stated facts sufficient to constitute a COA against Defendant. Among other things, the Complaint alleged that Defendant took steps to interfere with her right to quiet enjoyment in her lease agreement, that Defendant knew of the contract and that Defendant’s intentional conduct prevented her from receiving the benefits of that contract thereby causing her damages. The demurrer to the tenth COA for tortious interference is OVERRULED.

D. ELEVENTH COA FOR AIDING AND ABETTING

The eleventh COA for aiding and abetting ALLEGED THAT Defendant gave substantial assistance to the on-site staff that engaged in harassing and discriminatory conduct toward Plaintiff, in particular, by intentionally ignoring her complaints and allowing the harassing and discriminatory conduct to occur. The demurrer to the eleventh COA for aiding and abetting is OVERRULED.

E. FOURTEENTH COA FOR IIED

The fourteenth COA for IIED is alleged with sufficient facts to support the element of extreme and outrageous conduct based upon the factual allegations showing harassment. Further, Plaintiff alleged sufficient facts to plead severe or extreme emotional distress. The demurrer to the fourteenth COA for IIED is OVERRULED.

MOTION TO STRIKE

The motion to strike punitive damages is DENIED as to paragraph 134 and Prayer no. 8 for the reasons set forth in the discussion of the demurrer on the IIED COA.

EXPARTE APPLICATION BY PLAINTIFF HART1. As to sealing her address in Exhibit 6 to her 9/8/2023 declaration: The court does not have the ability to redact documents already on file. The court will temporarily seal the Declaration of Shelley Hart filed on 9/8/2023 and allow her to resubmit the declaration with her redactions no later than 9/18/2023. If the redacted declaration is not filed by 9/18/2023, the court will remove the seal from the declaration filed 9/8/2023. By so granting, the court does not take a position on whether it is proper or not to redact the address. This order merely allows her to correct her submitted declaration.2. As to omnibus demurrer as to the answer filed by LaSalle/LPF/Dupree: Grant omnibus demurrer and grant 20 pages for points and authorities. If an omnibus opposition is filed, the court will also allow 20 pages for the points and authorities.CLERK TO GIVE NOTICE.

Case Number: *******1030 Hearing Date: August 28, 2023 Dept: T

*******1030 HART V LASALLE

Ex parte application by plaintiff Hart set 8/28/2023.

This ex parte will be determined without hearing. No appearance is allowed. The court will consider written opposition only.

Tentative ruling by Judge Watkins:

1. GRANT PERMISSION TO FILE CONCISE OUTLINE AS TO LEGACY AND LASALLE MOTIONS TO COMPEL IN LIEU OF SEPARATE STATEMENT CRC Rule 3.1345(b)

2. GRANT PERMISSION TO FILE OMNIBUS MOTIONS TO COMPEL RFP AS TO LPF AND DUPREE

3. DENY PERMISSION TO CONSOLIDATE ALL DISCOVERY MOTIONS AS TO LEGACY AND ALL MOTIONS AS TO LASALLE BUT GRANT PERMISSION TO COMBINE RFP/INSPECTION MOTIONS SET 1 AND SET 2 AS TO LEGACY

4. GRANT AN ADDITIONAL 10 CALENDAR DAYS TO DEMUR TO EACH ANSWER

Case Number: *******1030 Hearing Date: August 8, 2023 Dept: T

*******1030 HART V LASALLE

THE COURT ORDERS THAT NO PARTIES ARE AUTHORIZED TO GIVE NOTICE OF THESE RULINGS ONCE FINAL.

ANY SUCH NOTICE WILL BE STRICKEN.

THE CLERK OF THE COURT WILL GIVE NOTICE.

TENTATIVE RULINGS

******[TENTATIVE] ORDER: DEFENDANT LPF TRIANA, INC.’S DEMURRER AND MOTION TO STRIKE

Defendant LPF Triana, Inc.’s Demurrer to the Complaint as to the First cause of action (COA) for breach of contract; the Second COA for breach of the covenant of quiet enjoyment; the Third COA for breach of the warranty of habitability; Fourth COA for violation of Civil Code section 1940.2; the Sixth COA for negligence; the Seventh COA for private nuisance; the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Eleventh COA for aiding and abetting tort; the Twelfth COA for Unruh Act violation; the Thirteenth COA for fraud; and the Fourteenth COA for intentional infliction of emotional distress (IIED) is OVERULED. The demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2 and the Ninth COA for CLRA is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant LPF Triana, Inc.’s Motion to Strike punitive damages is GRANTED as to the First COA for breach of contract and the Third COA for breach of the warranty of habitability. Otherwise, the Motion to Strike is DENIED.

The request to stay this matter pending the Hart v. Sullivan case is DENIED.

Answer to complaint due within 20 days.

1. INTRODUCTION

Defendant LPF Triana, Inc. (defendant) demurred to Plaintiff Shelly Hart’s (plaintiff) Complaint. Defendant’s demurrer placed into issue the entire complaint based upon “another action pending;” the First cause of action (COA) for breach of contract; the Second COA for breach of the covenant of quiet enjoyment; the Third COA for breach of the warranty of habitability; the Fourth COA for violation of Civil Code section 1940.2; the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2; the Sixth COA for negligence; the Seventh COA for private nuisance; the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Ninth COA for Consumer Legal Remedies Act (CLRA) violation; the Eleventh COA for aiding and abetting tort; the Twelfth COA for Unruh Act violation; the Thirteenth COA for fraud; and the Fourteenth COA for intentional infliction of emotional distress (IIED). Defendant moved to strike Plaintiff’s "incorrect naming" of defendant, plaintiff’s requests for injunctive relief, punitive damages, and attorneys’ fees.

2. DISCUSSION

For purposes of the demurrer, the court is required to assume that the facts stated in the complaint are true.

A. ANOTHER ACTION PENDING

Defendant argues that “there is another action pending between the same parties on the same cause of action.” (Code Civ. Proc. sec. 430.10(c).) Defendant cites the court to Hart v. Sullivan (Los Angeles Superior Court Case No. 19STCV40526) (Sullivan Action). The supervising judge of the Civil Department has ordered that these two cases are unrelated. Here, the court does not take judicial notice of the Sullivan action. On the face of the complaint in this action, there is no evidence that there is another action pending on all of the identical causes of action. In fact, defendant acknowledges that there is some overlap, and does not argue that this complaint is identical to the other complaint. Facts not pleaded in the instant complaint or which are not judicially noticeable are disregarded. The demurrer on this ground is OVERRULED.

B. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT

Defendant argued that the first COA for breach of contract is not sufficiently pled with supportive facts. Plaintiff’s claims for breach involve alleged unenforceable clauses in the contract (i.e., “Early Termination Option (Compl. par. 37) and late fees) and allegations as defendant's failure to enforce obligations in maintaining common areas or other tenants (i.e., garbage, pets, parking/vehicles, marijuana, barbeque and grills, and construction, thereby cause plaintiff damages. (Compl. pars. 56-57.) The demurrer to the First COA for breach of contract is OVERRULED.

C. SECOND CAUSE OF ACTION FOR BREACH OF THE COVENANT OF QUIET ENJOYMENT AND THIRD CAUSE OF ACTION FOR BREACH OF THE WARRANTY OF HABITABILITY

The Second COA for breach of the covenant of quiet enjoyment and the Third COA for breach of the warranty of habitability are sufficiently pled based upon the factual allegations of harassment. Defendant’s characterization of the harassment as minor inconveniences or annoyances are unsupported when the harassment allegations are read in totality. The demurrer to the Second and Third COAs is OVERRULED.

D. FOURTH CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 1940.2

The Fourth COA for violation of Civil Code section 1940.2 pled sufficient facts to support the allegation that defendant harassed Plaintiff. The allegations are not conclusory. Further, Plaintiff alleged that not only was she fearful to go outside her home but also alleged that the Early Termination Clause of the lease prevented her from vacating. Plaintiff sufficiently pled around the element requiring the purpose of the harassment to be vacating the premise. The demurrer to the Fourth COA is OVERRULED.

E. FIFTH CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 1670.8 AND 1951.2

There is no evidence in fact or law that a lease agreement for rental of residential property comes within the scope of Civil Code section 1670.8. Business and Professions Code section 302 defines a consumer as "any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes." Civil Code section 1802.1 defines "goods" as "tangible chattels bought for use primarily for personal, family or household purposes." Civil Code section 1802.2 states that "services" means work, labor and services, for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." Civil Code section 1791 states that "consumer goods" means "any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. "Consumer goods" shall include new and used assistive devices sold at retail."

Renting an apartment is not a good, a service, money, or credit. Plaintiff has not and cannot amend to state a cause of action under this section.

As to the alleged violation of Civil Code section 1951.2, plaintiff has not alleged a violation of Civil Code section 1951.2 and the statute has been misconstrued. This statute relates to the requirement of a landlord to mitigate damages when a tenant breaches the lease agreement to leave earlier than the contract date. This statute relates solely to actions in which the landlord is suing for damages, what the landlord is entitled to in damages, and is inapplicable to this case.

As both Civil Code section 1670.8 and 1951.2 are inapplicable to this case, the demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2 is SUSTAINED WITHOUT LEAVE TO AMEND.

F. SIXTH CAUSE OF ACTION FOR NEGLIGENCE

The Sixth COA for negligence is grounded upon allegations that defendant failed to maintain the property and engaged/permitted the harassment. In order for the court to sustain a demurrer, the demurrer must show that plaintiff has failed to allege facts to cover all of the claims pleaded in that cause of action. The negligence COA is grounded on, among other things, the harassment claims. Because the harassment claims are sufficiently supported with factual allegations, the negligence COA is sufficient to pass the demurrer stage. A demurrer is not proper to dispute only a portion of a cause of action or portion of a claim. The demurrer to the Sixth COA for negligence is OVERRULED.

G. SEVENTH CAUSE OF ACTION FOR PRIVATE NUISANCE

The Seventh COA for private nuisance is sufficiently supported with factual allegations because of the allegations regarding defendant’s alleged harassing conduct. The court does not agree that, as a matter of law, the conduct or damages claimed are insubstantial. The demurrer to the Seventh COA for private nuisance is OVERRULED.

H. EIGHTH CAUSE OF ACTION FOR FEHA VIOLATION AND THE TWELFTH CAUSE OF ACTION FOR UNRUH ACT VIOLATION

Defendant argues that the Eighth COA claims for FEHA are barred by the statute of limitations. However, alleged discriminatory conduct is stated in the complaint to have occurred between August 2022 and March 2023. Because alleged discrimination was pled to have occurred within the applicable statute of limitations, the SOL argument is rejected.

Defendant also argues that the factual allegations of the complaint are insufficient to establish a cause of action for a FEHA violation. There are several ways in which a FEHA violation may be alleged. They include disparate treatment, disparate impact, and retaliation. The complaint alleges facts sufficient to constitute an action for all three based upon plaintiff's gender and marital status claims. The demurrer to the Eighth COA for FEHA violation is OVERRULED. For these same reasons, the demurrer to the Twelfth COA for Unruh Act violations is OVERRULED.

I. NINTH CAUSE OF ACTION FOR VIOLATION OF CLRA

The Ninth COA for CLRA violation is inapplicable to the instant action because there are no facts to show that there has been a sale/lease of good or services to a consumer by this defendant. Claims based upon a real property lease are not covered under the CLRA. The demurrer to the Ninth COA for CLRA is SUSTAINED WITHOUT LEAVE TO AMEND.

J. ELEVENTH CAUSE OF ACTION FOR AIDING AND ABETTING

Defendant’s demurrer to the Eleventh COA for aiding and abetting tort is unfounded. The complaint did not identify defendant as a party to this COA. The demurrer is OVERRULED.

K. THIRTEENTH CAUSE OF ACTION FOR FRAUD

The Thirteenth COA for fraud alleges that defendant misrepresented in a December 2020 written lease that the property would be maintained that the lease provisions would be enforced, and that the early termination clause was enforceable, and that these representations by defendant were intended to induce plaintiff to sign the lease, and that when they made these promises, they did not intend to perform. Plaintiff relied on the promises, signed the lease, and was damaged when defendant did not perform. The COA sufficiently pled specific facts as to the alleged misrepresentation/false promise. Plaintiff has pleaded justifiable reliance and damages. The demurrer to the Thirteenth COA for fraud is OVERRULED.

L. FOURTEENTH CAUSE OF ACTION FOR IIED

The Fourteenth COA for IIED is alleged with sufficient facts to support the element of extreme and outrageous conduct based upon the factual allegations showing harassment. Further, plaintiff alleged sufficient facts to plead severe or extreme emotional distress. The demurrer to the Fourteenth COA for IIED is OVERRULED.

M. MOTION AS TO THE FORM OF ITS NAME

Defendant moved to strike the form in which it was named in this action: “LaSalle Property Fund REIT, Inc., dba LPF Triana Inc.” However, defendant’s argument is based upon alleged facts outside the four corners of the Complaint. The argument is not proper for motions and unpersuasive. Defendant’s request to strike the form in which defendant is named is DENIED.

N. MOTION TO STRIKE

Defendant moved to strike punitive/exemplary damages from the First COA for breach of contract and the Third COA for breach of the warranty of habitability. Because contract-based claims are not proper grounds for punitive damages, the motion is persuasive and is GRANTED WITHOUT LEAVE TO AMEND.

Defendant moved to strike punitive/exemplary damages from the Seventh COA for intentional private nuisance and the Fourteenth COA for IIED. Because the allegations related to the harassing conduct is sufficient to plead malice or oppression, the motion is unpersuasive. The motion to strike punitive/exemplary damages from the Seventh COA for intentional private nuisance and the Fourteenth COA for IIED is DENIED.

Defendant moved to strike the request under the Ninth COA for CLRA for injunctive relief and to convert her lease to a term lease. There is nothing improper about this request. The motion to strike the request for injunctive relief is DENIED.

For the same reasons that the court finds ground sufficient to state a cause of action for fraud, the request to strike punitive damages from the Thirteenth COA for fraud is DENIED.

Defendant moved to strike the request for injunctive relief under the Eighth COA for FEHA violations. However, injunctive relief is authorized under the “other relief” category found in Government Code section 12989.2. The motion to strike the request for injunctive relief under the Eighth COA for FEHA violations is DENIED.

Defendant moved to strike the request for attorney fees from the second COA for breach of the covenant of quiet use and enjoyment is DENIED. The mere fact that plaintiff is self-represented now does not mean that she will not have attorney fees.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

******[TENTATIVE] ORDER: DEFENDANT LASALLE INVESTMENT MANAGEMENT, INC.’S DEMURRER AND MOTION TO STRIKE

Defendant LaSalle Investment Management, Inc.’s Demurrer to the Complaint as to the First cause of action (COA) for breach of contract; the Second COA for breach of the covenant of quiet enjoyment; the Third COA for breach of the warranty of habitability; Fourth COA for violation of Civil Code section 1940.2; the Sixth COA for negligence; the Seventh COA for private nuisance; the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Eleventh COA for aiding and abetting tort; the Twelfth COA for Unruh Act violation; the Thirteenth COA for fraud; and the Fourteenth COA for intentional infliction of emotional distress (IIED) is OVERRULED. The demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2 and the Ninth COA for CLRA is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant LaSalle Investment Management, Inc.’s Motion to Strike punitive damages is GRANTED as to the First COA for breach of contract and the Third COA for breach of the warranty of habitability. Otherwise, the Motion to Strike is DENIED.

The request to stay this matter pending the Hart v. Sullivan case is DENIED.

Answer to complaint due within 20 days.

1. INTRODUCTION

Defendant LaSalle Investment Management, Inc. (defendant) demurred to Plaintiff Shelly Hart’s (plaintiff) Complaint. Defendant’s demurrer placed into issue the entire complaint based upon “another action pending;” the First cause of action (COA) for breach of contract; the Second COA for breach of the covenant of quiet enjoyment; the Third COA for breach of the warranty of habitability; the Fourth COA for violation of Civil Code section 1940.2; the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2; the Sixth COA for negligence; the Seventh COA for private nuisance; the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Ninth COA for Consumer Legal Remedies Act (CLRA) violation; the Eleventh COA for aiding and abetting tort; the Twelfth COA for Unruh Act violation; the Thirteenth COA for fraud; and the Fourteenth COA for intentional infliction of emotional distress (IIED). Defendant moved to strike Plaintiff’s "incorrect naming" of defendant, plaintiff’s requests for injunctive relief, punitive damages, and attorneys’ fees.

2. DISCUSSION

For purposes of the demurrer, the court is required to assume that the facts stated in the complaint are true.

A. ANOTHER ACTION PENDING

Defendant argues that “there is another action pending between the same parties on the same cause of action.” (Code Civ. Proc. sec. 430.10(c).) Defendant cites the court to Hart v. Sullivan (Los Angeles Superior Court Case No. 19STCV40526) (Sullivan Action). The supervising judge of the Civil Department has ordered that these two cases are unrelated. Here, the court does not take judicial notice of the Sullivan action. On the face of the complaint in this action, there is no evidence that there is another action pending on all of the identical causes of action. In fact, defendant acknowledges that there is some overlap, and does not argue that this complaint is identical to the other complaint. Facts not pleaded in the instant complaint or which are not judicially noticeable are disregarded. The demurrer on this ground is OVERRULED.

B. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT

Defendant argued that the first COA for breach of contract is not sufficiently pled with supportive facts. Plaintiff’s claims for breach involve alleged unenforceable clauses in the contract (i.e., “Early Termination Option (Compl. par. 37) and late fees) and allegations as defendant's failure to enforce obligations in maintaining common areas or other tenants (i.e., garbage, pets, parking/vehicles, marijuana, barbeque and grills, and construction, thereby cause plaintiff damages. (Compl. pars. 56-57.) The demurrer to the First COA for breach of contract is OVERRULED.

C. SECOND CAUSE OF ACTION FOR BREACH OF THE COVENANT OF QUIET ENJOYMENT AND THIRD CAUSE OF ACTION FOR BREACH OF THE WARRANTY OF HABITABILITY

The Second COA for breach of the covenant of quiet enjoyment and the Third COA for breach of the warranty of habitability are sufficiently pled based upon the factual allegations of harassment. Defendant’s characterization of the harassment as minor inconveniences or annoyances are unsupported when the harassment allegations are read in totality. The demurrer to the Second and Third COAs is OVERRULED.

D. FOURTH CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 1940.2

The Fourth COA for violation of Civil Code section 1940.2 pled sufficient facts to support the allegation that defendant harassed Plaintiff. The allegations are not conclusory. Further, Plaintiff alleged that not only was she fearful to go outside her home but also alleged that the Early Termination Clause of the lease prevented her from vacating. Plaintiff sufficiently pled around the element requiring the purpose of the harassment to be vacating the premise. The demurrer to the Fourth COA is OVERRULED.

E. FIFTH CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 1670.8 AND 1951.2

There is no evidence in fact or law that a lease agreement for rental of residential property comes within the scope of Civil Code section 1670.8. Business and Professions Code section 302 defines a consumer as "any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes." Civil Code section 1802.1 defines "goods" as "tangible chattels bought for use primarily for personal, family or household purposes." Civil Code section 1802.2 states that "services" means work, labor and services, for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." Civil Code section 1791 states that "consumer goods" means "any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. "Consumer goods" shall include new and used assistive devices sold at retail."

Renting an apartment is not a good, a service, money, or credit. Plaintiff has not and cannot amend to state a cause of action under this section.

As to the alleged violation of Civil Code section 1951.2, plaintiff has not alleged a violation of Civil Code section 1951.2 and the statute has been misconstrued. This statute relates to the requirement of a landlord to mitigate damages when a tenant breaches the lease agreement to leave earlier than the contract date. This statute relates solely to actions in which the landlord is suing for damages, what the landlord is entitled to in damages, and is inapplicable to this case.

As both Civil Code section 1670.8 and 1951.2 are inapplicable to this case, the demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2 is SUSTAINED WITHOUT LEAVE TO AMEND.

F. SIXTH CAUSE OF ACTION FOR NEGLIGENCE

The Sixth COA for negligence is grounded upon allegations that defendant failed to maintain the property and engaged/permitted the harassment. In order for the court to sustain a demurrer, the demurrer must show that plaintiff has failed to allege facts to cover all of the claims pleaded in that cause of action. The negligence COA is grounded on, among other things, the harassment claims. Because the harassment claims are sufficiently supported with factual allegations, the negligence COA is sufficient to pass the demurrer stage. A demurrer is not proper to dispute only a portion of a cause of action or portion of a claim. The demurrer to the Sixth COA for negligence is OVERRULED.

G. SEVENTH CAUSE OF ACTION FOR PRIVATE NUISANCE

The Seventh COA for private nuisance is sufficiently supported with factual allegations because of the allegations regarding defendant’s alleged harassing conduct. The court does not agree that, as a matter of law, the conduct or damages claimed are insubstantial. The demurrer to the Seventh COA for private nuisance is OVERRULED.

H. EIGHTH CAUSE OF ACTION FOR FEHA VIOLATION AND THE TWELFTH CAUSE OF ACTION FOR UNRUH ACT VIOLATION

Defendant argues that the Eighth COA claims for FEHA are barred by the statute of limitations. However, alleged discriminatory conduct is stated in the complaint to have occurred between August 2022 and March 2023. Because alleged discrimination was pled to have occurred within the applicable statute of limitations, the SOL argument is rejected.

Defendant also argues that the factual allegations of the complaint are insufficient to establish a cause of action for a FEHA violation. There are several ways in which a FEHA violation may be alleged. They include disparate treatment, disparate impact, and retaliation. The complaint alleges facts sufficient to constitute an action for all three based upon plaintiff's gender and marital status claims. The demurrer to the Eighth COA for FEHA violation is OVERRULED. For these same reasons, the demurrer to the Twelfth COA for Unruh Act violations is OVERRULED.

I. NINTH CAUSE OF ACTION FOR VIOLATION OF CLRA

The Ninth COA for CLRA violation is inapplicable to the instant action because there are no facts to show that there has been a sale/lease of good or services to a consumer by this defendant. Claims based upon a real property lease are not covered under the CLRA. The demurrer to the Ninth COA for CLRA is SUSTAINED WITHOUT LEAVE TO AMEND.

J. ELEVENTH CAUSE OF ACTION FOR AIDING AND ABETTING

Defendant’s demurrer to the Eleventh COA for aiding and abetting tort is unfounded. The complaint did not identify defendant as a party to this COA. The demurrer is OVERRULED.

K. THIRTEENTH CAUSE OF ACTION FOR FRAUD

The Thirteenth COA for fraud alleges that defendant misrepresented in a December 2020 written lease that the property would be maintained that the lease provisions would be enforced, and that the early termination clause was enforceable, and that these representations by defendant were intended to induce plaintiff to sign the lease, and that when they made these promises, they did not intend to perform. Plaintiff relied on the promises, signed the lease, and was damaged when defendant did not perform. The COA sufficiently pled specific facts as to the alleged misrepresentation/false promise. Plaintiff has pleaded justifiable reliance and damages. The demurrer to the Thirteenth COA for fraud is OVERRULED.

L. FOURTEENTH CAUSE OF ACTION FOR IIED

The Fourteenth COA for IIED is alleged with sufficient facts to support the element of extreme and outrageous conduct based upon the factual allegations showing harassment. Further, plaintiff alleged sufficient facts to plead severe or extreme emotional distress. The demurrer to the Fourteenth COA for IIED is OVERRULED.

M. MOTION AS TO THE FORM OF ITS NAME

Defendant moved to strike the form in which it was named in this action: “LaSalle Property Fund REIT, Inc., dba LPF Triana Inc.” However, defendant’s argument is based upon alleged facts outside the four corners of the Complaint and is not a determination that the court can make as a matter of law. The argument is not proper for motions and unpersuasive. Defendant’s request to strike the form in which defendant is named is DENIED.

N. MOTION TO STRIKE

Defendant moved to strike punitive/exemplary damages from the First COA for breach of contract and the Third COA for breach of the warranty of habitability. Because contract-based claims are not proper grounds for punitive damages, the motion is persuasive and is GRANTED WITHOUT LEAVE TO AMEND.

Defendant moved to strike punitive/exemplary damages from the Seventh COA for intentional private nuisance and the Fourteenth COA for IIED. Because the allegations related to the harassing conduct is sufficient to plead malice or oppression, the motion is unpersuasive. The motion to strike punitive/exemplary damages from the Seventh COA for intentional private nuisance and the Fourteenth COA for IIED is DENIED.

Defendant moved to strike the request under the Ninth COA for CLRA for injunctive relief and to convert her lease to a term lease. There is nothing improper about this request. The motion to strike the request for injunctive relief is DENIED.

For the same reasons that the court finds ground sufficient to state a cause of action for fraud, the request to strike punitive damages from the Thirteenth COA for fraud is DENIED.

Defendant moved to strike the request for injunctive relief under the Eighth COA for FEHA violations. However, injunctive relief is authorized under the “other relief” category found in Government Code section 12989.2. The motion to strike the request for injunctive relief under the Eighth COA for FEHA violations is DENIED.

Defendant moved to strike the request for attorney fees from the second COA for breach of the covenant of quiet use and enjoyment is DENIED. The mere fact that plaintiff is self-represented now does not mean that she will not have attorney fees.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

******[TENTATIVE] ORDER: DEFENDANT LEGACY PARTNERS, INC’S DEMURRER AND MOTION TO STRIKE

Defendant Legacy Partners, Inc’s Demurrer to the Complaint based on another action pending; to the Sixth Cause of Action (COA) for negligence; the Seventh COA for private nuisance; the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Tenth COA for Tortious Interference with Contract; and the Fourteenth COA for intentional infliction of emotional distress (IIED) is OVERRULED. The demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2, and the Ninth COA for CLRA is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Legacy Partner's Inc.'s Motion to Strike is DENIED as to punitive/exemplary damages in paragraphs 59, 72, 130, and prayer no. 15 as this defendant is not a party to these claims and lack standing to object. The motion is DENIED on the merits as to paragraphs 94, 134 and prayer no. 8 for the reasons as set forth in the demurrer ruling.

The request to stay this matter pending the Hart v. Sullivan case is DENIED.

Answer to complaint due within 20 days.

1. INTRODUCTION

Defendant Legacy Partners, Inc. (defendant) demurred to Plaintiff Shelly Hart’s (plaintiff) Complaint. Defendant’s demurrer placed into issue the entire complaint based upon “another action pending;” the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2; the Sixth COA for negligence; the Seventh COA for private nuisance; the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Ninth COA for Consumer Legal Remedies Act (CLRA) violation; the Tenth COA for tortious interference, and the Fourteenth COA for intentional infliction of emotional distress (IIED). Defendant moved to strike Plaintiff’s requests for punitive/exemplary damages.

2. DISCUSSION

For purposes of the demurrer, the court is required to assume that the facts stated in the complaint are true.

A. ANOTHER ACTION PENDING

Defendant argues that “there is another action pending between the same parties on the same cause of action.” (Code Civ. Proc. sec. 430.10(c).) Defendant cites the court to Hart v. Sullivan (Los Angeles Superior Court Case No. 19STCV40526) (Sullivan Action). The supervising judge of the Civil Department has ordered that these two cases are unrelated. Here, the court does not take judicial notice of the Sullivan action. On the face of the complaint in this action, there is no evidence that there is another action pending on all of the identical causes of action. In fact, defendant acknowledges that there is some overlap, and does not argue that this complaint is identical to the other complaint. Facts not pleaded in the instant complaint or which are not judicially noticeable are disregarded. The demurrer on this ground is OVERRULED.

B. FIFTH CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 1670.8 AND 1951.2

There is no evidence in fact or law that a lease agreement for rental of residential property comes within the scope of Civil Code section 1670.8. Business and Professions Code section 302 defines a consumer as "any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes." Civil Code section 1802.1 defines "goods" as "tangible chattels bought for use primarily for personal, family or household purposes." Civil Code section 1802.2 states that "services" means work, labor and services, for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." Civil Code section 1791 states that "consumer goods" means "any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. "Consumer goods" shall include new and used assistive devices sold at retail."

Renting an apartment is not a good, a service, money, or credit. Plaintiff has not and cannot amend to state a cause of action under this section.

As to the alleged violation of Civil Code section 1951.2, plaintiff has not alleged a violation of Civil Code section 1951.2 and the statute has been misconstrued. This statute relates to the requirement of a landlord to mitigate damages when a tenant breaches the lease agreement to leave earlier than the contract date. This statute relates solely to actions in which the landlord is suing for damages, what the landlord is entitled to in damages, and is inapplicable to this case.

As both Civil Code section 1670.8 and 1951.2 are inapplicable to this case, the demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2 is SUSTAINED WITHOUT LEAVE TO AMEND.

C. SIXTH CAUSE OF ACTION FOR NEGLIGENCE

The Sixth COA for negligence is grounded upon allegations that defendant failed to maintain the property and engaged/permitted the harassment. In order for the court to sustain a demurrer, the demurrer must show that plaintiff has failed to allege facts to cover all of the claims pleaded in that cause of action. The negligence COA is grounded on, among other things, the harassment claims. Because the harassment claims are sufficiently supported with factual allegations, the negligence COA is sufficient to pass the demurrer stage. A demurrer is not proper to dispute only a portion of a cause of action or portion of a claim. The demurrer to the Sixth COA for negligence is OVERRULED.

D. SEVENTH CAUSE OF ACTION FOR PRIVATE NUISANCE

The Seventh COA for private nuisance is sufficiently supported with factual allegations because of the allegations regarding defendant’s alleged harassing conduct. The court does not agree that, as a matter of law, the conduct or damages claimed are insubstantial. The demurrer to the Seventh COA for private nuisance is OVERRULED.

E. EIGHTH CAUSE OF ACTION FOR FEHA VIOLATION

Defendant argues that the Eighth COA claims for FEHA are barred by the statute of limitations. However, alleged discriminatory conduct is stated in the complaint to have occurred between August 2022 and March 2023. Because alleged discrimination was pled to have occurred within the applicable statute of limitations, the SOL argument is rejected.

Defendant also argues that the factual allegations of the complaint are insufficient to establish a cause of action for a FEHA violation. There are several ways in which a FEHA violation may be alleged. They include disparate treatment, disparate impact, and retaliation. The complaint alleges facts sufficient to constitute an action for all three based upon plaintiff's gender and marital status claims. The demurrer to the Eighth COA for FEHA violation is OVERRULED.

F. NINTH CAUSE OF ACTION FOR VIOLATION OF CLRA

The Ninth COA for CLRA violation is inapplicable to the instant action because there are no facts to show that there has been a sale/lease of good or services to a consumer by this defendant. Claims based upon a real property lease are not covered under the CLRA. The demurrer to the Ninth COA for CLRA is SUSTAINED WITHOUT LEAVE TO AMEND.

G. TENTH CAUSE OF ACTION FOR TORTIOUS INTERFERENCE

The Tenth COA for tortious interference states facts sufficient to constitute a cause of action against defendant. Among other things, the complaint alleges that defendants took steps to interfere with her right to quiet enjoyment in her lease agreement, that defendant knew of the contract and that defendant's intentional conduct prevented her from receiving the benefits of that contract thereby causing her damages. The demurrer is OVERRULED.

H. FOURTEENTH CAUSE OF ACTION FOR IIED

The Fourteenth COA for IIED is alleged with sufficient facts to support the element of extreme and outrageous conduct based upon the factual allegations showing harassment. Further, plaintiff alleged sufficient facts to plead severe or extreme emotional distress. The demurrer to the Fourteenth COA for IIED is OVERRULED.

I. MOTION TO STRIKE

The motion to strike punitive/exemplary damages is DENIED as to paragraphs 59, 72, 130 and prayer no. 15 because this defendant is not a party to those claims. The motion is DENIED as to paragraphs 94, 134, and prayer no. 8 for the reasons set forth in the discussion of the demurrer on these claims.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

******[TENTATIVE] ORDER: DEFENDANT KYLE DUPREE’S DEMURRER AND MOTION TO STRIKE

Defendant Kyle Dupree’s Demurrer is OVERRULED.

Defendant Kyle Dupree’s Motion to Strike is DENIED.

The request to stay this matter pending the Hart v. Sullivan case is DENIED.

Answer to complaint due within 20 days.

1. INTRODUCTION

Defendant Kyle Dupree (defendant) demurred to plaintiff Shelly Hart’s (plaintiff) Complaint. Defendant’s demurrer placed into issue the entire complaint based upon “another action pending;” the Eighth COA for Fair Employment and Housing Act (FEHA) violation; the Eleventh COA for aiding and abetting tort; the Twelfth COA for Unruh Act violation; and the Fourteenth COA for intentional infliction of emotional distress (IIED). Defendant’s motion to strike sought to strike plaintiff’s requests for injunctive relief, punitive damages, and attorneys’ fees.

2. DISCUSSION

For purposes of the demurrer, the court is required to assume that the facts stated in the complaint are true.

A. ANOTHER ACTION PENDING

Defendant argues that “there is another action pending between the same parties on the same cause of action.” (Code Civ. Proc. sec. 430.10(c).) Defendant cites the court to Hart v. Sullivan (Los Angeles Superior Court Case No. 19STCV40526) (Sullivan Action). The supervising judge of the Civil Department has ordered that these two cases are unrelated. Here, the court does not take judicial notice of the Sullivan action. On the face of the complaint in this action, there is no evidence that there is another action pending on all of the identical causes of action. In fact, defendant acknowledges that there is overlap only and does not argue that this complaint is identical to the other complaint. Facts not pleaded in the instant complaint or which are not judicially noticeable are disregarded. The demurrer on this ground is OVERRULED.

B. EIGHTH CAUSE OF ACTION FOR FEHA VIOLATION

Defendant argues that the Eighth COA claims for FEHA are barred by the statute of limitations. However, alleged discriminatory conduct is stated in the complaint to have occurred between August 2022 and March 2023. Because alleged discrimination was pled to have occurred within with applicable SOL argument, the demurrer on this ground is rejected.

Defendant also argues that the factual allegations of the complaint are insufficient to establish a cause of action for a FEHA violation. There are several ways in which a FEHA violation may be alleged. They include disparate treatment, disparate impact, and retaliation. The complaint alleges facts sufficient to constitute an action for all three based upon plaintiff's gender and marital status claims. The demurrer to the eighth COA for FEHA violation is OVERRULED.

C. ELEVENTH CAUSE OF ACTION FOR AIDING AND ABETTING

The Eleventh COA for aiding and abetting alleges that defendant gave substantial assistance to the on-site staff that engaged in harassing and discriminatory conduct toward plaintiff, in particular, by intentionally ignoring her complaints and allowing the harassing and discriminatory conduct to occur. The demurrer to the eleventh COA for aiding and abetting is OVERRULED.

D. FOURTEENTH CAUSE OF ACTION FOR IIED

The Fourteenth COA for IIED is alleged with sufficient facts to support the element of extreme and outrageous conduct based upon the factual allegations asserting harassment. Further, plaintiff alleged sufficient facts to plead severe or extreme emotional distress. The demurrer to the Fourteenth COA for IIED is OVERRULED.

E. MOTION TO STRIKE

Defendant moved to strike punitive/exemplary damages from the First COA for breach of contract, the Third COA for breach of the warranty of habitability, the Seventh COA for intentional private nuisance, the Thirteenth COA for fraud, and attorney fees from the Second COA. Defendant also moved to strike the request under the Ninth COA for CLRA for injunctive relief and to convert her lease to a term lease. However, none of these COAs identify moving defendant as a party. Because these requests for relief are not alleged against moving defendant, the motion to strike these requests for relief is DENIED.

Defendant moved to strike plaintiff’s request for punitive damages and injunctive relief under the Eighth COA for FEHA violations, the request for punitive damages in the Eleventh COA for aiding and abetting, Twelfth COA for Unruh violations, and the Fourteenth COA for IIED. Because the allegations related to the discriminatory and harassing conduct, assuming those facts to be true, is sufficient to plead malice or oppression, the motion is unpersuasive and is DENIED.

Finally, the motion to strike attorney fees is DENIED. The mere fact that plaintiff is self-represented now does not mean that she will not have attorney fees during the course of the case.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

******[TENTATIVE] ORDER: DEFENDANT KIMBALL, TIREY & ST. JOHN, L.L.P.'S DEMURRER

Defendant Kimball, Tirey & St. John, L.L.P.'s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant to prepare, serve, and file a Proposed Judgment of Dismissal.

Defendant Kimball, Tirey & St. John, L.L.P. (defendant) demurred to Plaintiff Shelly Hart’s (plaintiff) Complaint. Defendant’s demurrer placed into issue the Fifth Cause of Action for Violation of Civil Code sections 1670.8 and 1951.2, Fourteenth Cause of Action for IIED, and an unnumbered Cause of Action for Declaratory Relief.

Concerning the Fifth Cause of Action, there is no evidence in fact or law that a lease agreement for rental of residential property comes within the scope of Civil Code section 1670.8. Business and Professions Code section 302 defines a consumer as "any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes." Civil Code section 1802.1 defines "goods" as "tangible chattels bought for use primarily for personal, family or household purposes." Civil Code section 1802.2 states that "services" means work, labor and services, for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." Civil Code section 1791 states that "consumer goods" means "any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. "Consumer goods" shall include new and used assistive devices sold at retail."

Renting an apartment is not a good, a service, money, or credit. Plaintiff has not and cannot amend to state a cause of action under this section.

As to the alleged violation of Civil Code section 1951.2, plaintiff has not alleged a violation of Civil Code section 1951.2 and the statute has been misconstrued. This statute relates to the requirement of a landlord to mitigate damages when a tenant breaches the lease agreement to leave earlier than the contract date. This statute relates solely to actions in which the landlord is suing for damages, what the landlord is entitled to in damages, and is inapplicable to this case.

Furthermore, defendant is not a party to any contract for services or goods with plaintiff. Plaintiff has no statutory claim against defendant. As both Civil Code section 1670.8 and 1951.2 are inapplicable to this case and there is no contract as to this defendant, the demurrer to the Fifth COA for violation of Civil Code sections 1670.8 and 1951.2 is SUSTAINED WITHOUT LEAVE TO AMEND.

On the Eleventh Cause of Action for IIED, plaintiff has acknowledged that she did not intend to name defendant in the IIED claim. Plaintiff has acknowledged that she did not intend to name defendant in the IIED claim. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

On the unnumbered cause of action for Declaratory Relief, there are no charging allegations against defendant. Plaintiff does not allege a contract between her and defendant. She does not and cannot allege a duty owed by defendant to her. She does not specify what "declaration" she wants the court to made as to defendant. The complaint fails to establish any contractual relationship between the plaintiff and the defendant. Therefore, there is no basis to find any right to declaratory relief. There is no viable claim alleged against defendant. This cannot be remedied for the above reasons. Accordingly, the demurrer to the declaratory relief action is SUSTAINED WITHOUT LEAVE TO AMEND.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

Case Number: *******1030 Hearing Date: April 25, 2023 Dept: T

*******1030 SHELLY HART vs LASALLE PROPERTY FUND REIT, INC

This is a tentative ruling on the ex parte application of plaintiff Ms. Hart on 4 issues. The California Rules of Court limit the use of ex parte applications. Rule 3.1202 states: “An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.”

Therefore, as a preliminary matter, if “irremediable harm” or “immediate danger” would not occur while waiting for a noticed motion, the ex parte application must be denied. If there is no statutory basis for ex parte relief, then ex parte application must be denied.

The court will not make decisions in this case based on rulings made by other judges in unrelated cases. Plaintiff cannot use evidence and declarations in unrelated actions to support applications for ex parte application in this case. Ex parte applications in this case require compliance with Rule 3.1202.

The court reviews each ex parte application while applying these requirements.

1. Ex parte application to serve Rafael Abundio and Ilsin Castanon at the subject property

This ex parte application does not any “irremediable harm” or “immediate danger” would occur if ex parte relief is not granted. There is no statutory basis for the relief. There is no authority for the court to order counsel to give plaintiff information unless mandated by statute. There is no statutory authority to order that the summons and complaint be mailed to persons residing within the State. There is no basis for the court to order how substituted service can be done. The methods for service are listed in the statutes. Accordingly, there is no basis for ex parte relief as to this ex parte application.

2. Ex parte application notice “in-person” depositions beginning at 8:30 a.m.

The court notes that there are no discovery motions filed in this case and defendants have not yet filed an appearance. This ex parte application does not show “irremediable harm” or “immediate danger” would occur while waiting for a noticed motion. There is no statutory basis for the relief. Accordingly, there is no basis for ex parte relief as to this ex parte application.

3. Ex parte application deeming LaSalle Property Fund Reit, Inc. the correct entity

The court does not make this type of factual determination without a statutory basis to do so. There is no statutory basis for the court to do so identified in the ex parte application. There is no trial pending. The court notes that there is no pending motion. Defendants have not yet appeared in this case. Accordingly, there is no basis for ex parte relief as to this ex parte application.

4. Ex parte application to “cease destruction of evidence”

California Rules of Court require that there be a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. There is no declaration which explains the basis for this order. The court cannot take oral testimony at law and motion hearings. Accordingly, there is no basis for ex parte relief as to this ex parte application.