Order Submitted MatterCal. Super. - 6th Dist.May 31, 2018OWOOVQUIADJNH NNNNMNNMN-n -----.--.-.-. ._._._. OO.\I ON (II -& b) N -‘ O \O 0° \l O\ Kl! J} b) N -‘ SEP 13 2018 erk of the Court Su rlo ou o! ty ofSanta Clara SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA JANA MCNULTY, Case No. 18-cv-3291 12 Plaintiff, ORDER RE: DEMURRER AND VS- MOTION To STRIKE MINA FARAHMNAD, Order Issued on Submitted Matte} Defendant, The demurrer and motion to strike by defendant Mina Farahmnad (“Defendant”) came on for hearing before the Honorable James L. Stoelker on September l3, 201 8, at 9:00 a.m. in Depanment 13. The matters having been submitted, the Court finds and orders as follows: Factual and Procedural Background This action arises out ofa landlord-tenant dispute. On March 28, 201 8,’ plaintiff Jana Mcnulty (“Plaintiff”) entered into a written agreement with Defendant whereby Plaintiff agreed to rent the premises located at 19790 Merri‘brook Drive, Saratoga, California 95070 (“Premises”). (Complaint, 1| 5.) 1 ORDER RE: DEMURRER AND MOTION TO STRIKE ._. O \O 00 \l ON KII,& L») N NNNNNNNNNw-.-‘_-__.___. OO\IO\Lh&bJN-O\OW\IO\m-wa-- Defendant allegedly “engaged in retaliatory behavior as a means of influencing Plaintiff to vacate [the Premises] after Defendant learned that Plaintiff was receiving hospice care for cancer.” (Complaint, 1| 6.) Sp'ecifically, “Defendant called and left a message demanding that Plaintiff vacate [the Premises] and accused Plaintiffof fraud.” (Id. at 1] 7.)'Defendant also “h5rassed Plaintiff‘s care givers” and “interfered with [their] ability to access [the Premises] and to care for Plaintiff.” (Id. at 11 8.) Furthermore, “Defendant made substantial noise in the unit upstairs throughout the night for the purpose of harassing Plaintiff and influencing Plaintiffto vacate the Premises.” (Id. at 1] 9.) “[B]ecause of the harassment and the effect of the stress on Plaintiff‘s fragile health,” Plaintiff found substitute housing and vacated the Premises. (Complaint, 1] 10.) “Defendant learned that Plaintiff had vacated the unit and unilaterally changed the locks, refused to perform a walk through with Plaintiff’s agent, took money from Plaintiff’s security deposit, and failed t0 return the full balance of Plaintiff‘s pre-paid rent.” (1d. at1] 1 l.) ‘ Based on the foregoing allegations, Plaintifffiled a complaint against Defendant, alleging causes ofaction for: (1) intentional infliction ofemotional distress (“IIED”); (2) negligence; (3) negligent infliction of emotional distress (“NIED”); (4) unlawful conduct by landlord - violation - ofCivil Code section 1940.2; (5) landlord retaliation - violation ofCivil Code section 1942.5, subdivision (c); (6) unjust enrichment; (7) landlord abuse ofright ofaccess - violation of Civil Code section 1954, et seq.; (8) breach ofcontract; (9) unfair business practices; and (10) elder abuse.‘ I On July 13, 2018, Defendant filed the instant demurrer and motion to strike. Plaintiff filed papers in opposition t0 the demurrer and motion to strike on August 14, 2018. ' The ninth cause ofaction for unfair business practices and the tenth cause ofaction for elder abuse are erroneously labeled as the tenth and eleventh causes ofaction, respectively, in the complaint; 2 ORDER RE: DEMURRER AND MOTION TO STRIKE OOOOQGNUIAL'JN- NNNNMNMMNy------____._ WNQMwa-OOWVOMAWN- Discussion l. Request for Judicial Notice ln connection with her demurrer and motion to strike, Defendant asks the Court to take judicial notice of: (l) a printout out from the Santa Clara County Superior Court website showing cases filed in Santa Clara County involving Plaintiff‘s attorney; and (2) complaints filed by Plaintiff’s attorney on behalfof non-parties to this action. Defendant contends that these documents are proper subjects ofjudicial notice because Plaintiff’s attorney purportedly “files boilerplate complaints and causes 0f action therein in lawsuits he files on behalfoftenants naming landlord defendants.” (D’s RJN, p. 2:17-19.) “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, ofthe existence ofa matter 0F law or fact that is relevant to an issue in the action without requiring formal proofofthe matter.” (Unruh-Haxton v. Regents of University 0f California (2008) 162 Cal.App.4th 343, 364.) A precondition tojudicial notice is that the matter to be noticed must be relevant to a material issue before the court. (People ex rel. Lockyer v. Shamrock Foods C0. (2000) 24 Cal.4th 41 5, 422, fn. 2.) Here, the matter to be noticed-the website printout and complaints filed in separate and unrelated cases-is not relevant to a material issue before the Court. The purported fact that Plaintiff‘s attorney filed boilerplate complaints in other cases has no bearing on whether the causes of action alleged in Plaintiff‘s complaint are sufficient to state a claim. Consequently, the documents are not proper subjects ofjudicial notice. Accordingly, Defendant’s request forjudicial notice is DENIED. Il. Motion to Strike A. Meet and Confer Though not raised by the parties, the Court notes as a preliminary matter that Defendant failed to comply with Code ofCivil Procedure section 435.5 (effective January l, 201 8) as she did not file the requisite meet and confer declaration. Before filing a motion to strike, the moving party must “meet and confer in person or by telephone” with the opposing party to determine “whether an agreement can be reached that 3 ORDER RE: DEMURRER AND MOTION TO STRIKE _. OOMNONUI¢WN NMNNNNNNN__._.______.- OONOM-AwN-Owooflomth-fl ‘resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) This conference should occur at least five days before the deadline to file the motion.to strike. (Code Civ. Proc., § 435.5, subd. (a)(2).) When filing the motion to strike, the moving party must include a declaration stating either “the means by which the moving party met and conferred with [the other party] and that the parties did not reach an agreement resolving the objections raised by the motion to strike” or [the other party] “failed to respond to the meet and confer request ofthe moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).) “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4)-) Here, Defendant failed to file a meet and confer declaration and there is no indication in the moving papers that Defendant engaged in any meet and confer efforts before filing her motion to strike. However, in the interest of addressing the merits ofthe motion and moving the case forward, the Court will overlook-in this instance only-Defendant’s failure to comply with Code ofCivil Procedure section 435.5. Defendant is admonished to remain apprised of, and to comply with, newly applicable law going forward. B. Legal Standard Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws ofthis state, a court rule, or an order ofthe court. (Code Civ. Proe, § 436.) The grounds for a motion to strike must appear on the face ofthe challenged pleading or from matters of which the court may takejudicial notice. (Code Civ. Proc., § 437, subd. (3).) 1n ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point ofCenIral California, Inc. (2010) l9l Cal.App.4th 53, 63 citing Clauson v. Super. CI. (I998) 67 Cal.App.4th 1253, 1255.) 4 ORDER RE: DEMURRER AND MOTION TO STRIKE OOOOVONKI‘ALIJN- NNMNNNNNN------.-_-_.-._‘ WNOMAMNfloomVQU‘I-fiww- C. Merits of the Motion Although Defendant states that she generally brings a motion to strike with respect t0 the complaint, she fails to clearly state whether she seeks t0 strike the complaint as a whole, specific causes of action ofthe complaint, or specific portions 0fthe complaint. (See D’s Ntc. Mtn., p. 1:20-26; D’s Dem. & Mtn. t0 Strike, pp. 3:5-713; see also Cal. Rules of Ct., rule 3.1322 [“A notice ofmotion to strike a portion ofa pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.”].) Furthermore, Defendant does not articulate any grounds that would support a motion to strike. Defendant does not identify any matter in the pleading that is irrelevant, false, or improper or not filed in conformity with the laws ofthis state, a court rule, or an order ofthe court. (See Code Civ. Proc., § 436; see also D’s Ntc. Mtn., p. 1:20-26.) Instead, Defendant argues that her motion to strike should be granted because: there are no allegations showing an attempt to mediate the dispute and Plaintiff refused to mediate the dispute; various allegations in the complaint are vague, conclusory, and lack specificity; the complaint fails to allege sufficient facts to state a cause of action; and the complaint contains boilerplate allegations. (See D’s Dem. & Mtn. t0 Strike, pp. 3:5-7z3.) At most, these arguments may be grounds for a demurrer, not a motion to strike. (Compare Code Civ. Proc., § 430.10, subds. (e) and (t) with § 436.) For these reasons, Defendant’s motion to strike is DENIED. lll. Demurrer A. Meet and Confer Though not raised by the parties, the Court notes that Defendant failed to file a meet and confer declaration as required by Code of Civil Procedure section 430.4]. Code of Civil Procedure section 430.41 requires a demurring party to meet and confer with the party who filed the challenged pleading to seek informal resolution ofthe demurring pany’s objections. (Code Civ. Proc., § 430.4] , subd. (a) [“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of detemiining whether an 5 ORDER RE: DEMURRER AND MOTION TO STRIKE OOOOVQt/Ibww 1] 13 14 15 16 17 18 19 '20 21 22 23 24 25 26 27 28 agreement can be reached that would resolve the objections to be raiséd in the demurrer.”].) The meet and confer must be conducted in person or by telephone, and must address each cause of action or defense to be included in the demurrer. (lbid) Ifthese efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) While a court may not overrule a demurrer for insufficient meet and confer efforts (see Code Civ. Proc., § 430.41, subd. (a)(4)), it may continue the hearing and order the parties t0 meet and confer as required ('see Assem. Com. 0n Judiciary, Rep. 0n Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2). Here, in furtherance ofjudicial economy, the Court will overlook Defendant’s failure t0 comply with Code ofCivil Procedure section 430.41 in this instance only. Defendant is admonished that all future filings must comply with the Code of Civil Procedure. B. Legal Standard The function ofa demurrer is to test the legal sufficiency ofa pleading. (Trs. OfCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (l 990) 221 Ca1.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents-of the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land C0. v. Petersen (1964) 226 Cal.App.2d 725, 732 (South Shore), internal citations and quotations omitted; see Code Civ. Proe, § 430.30, subd. (a).) “It is not the ordinary function ofa demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] eontentions, deductions or conclusions of law or fact.” (George v. Automobile Club ofSoulhern California (201 1) 201 Cal.App.4th 1112, 1120.) C. Merits of the Demiurrer Defendant argues that her demurrer should be sustained because: (1) there are n0 allegations showing an attempt to mediate the dispute and Plaintiff refused to mediate the 6 ORDER RE: DEMURRER AND MOTION TO STRIKE OOOONQMAbJNfl NNNNNNNNN-I-n-‘flfi-H-‘p-‘fl WNOMAWN-‘OOOOHQMhU-JNH dispute; (2) the allegations 0fthe complaint are uncerfain and fail to state a claim; and (3) the complaint contains boilerplate allegations. 1. First Argument Defendant’s first argument is directed t0 the complaint, as a whole. (D’s Dem. & Mtn. to Strike, p. 3:5-19; D’s Mem. Ps. & A3,, pp. 10221-1 l :6.) Defendant contends that Plaintiff‘s lease agreement requires her to mediate any dispute or claim arising between the parties before resorting to court action. Defendant states that Plaintiffdid not allege compliance with the mediation precondition and mediation has not yet occurred. Defendant concludes that Plaintiff, therefore, failed to “allege exhaustion of contract remedies that are condition precedent to the maintenance ofthe action.” (D’s Mem. PS. & As., pp. 10:21-1 l :6.) Defendant’s argument is predicated on the terms of the parties’ lease agreement; specifically, on the existence and terms of a mediation clause. However, the purported mediation clause is not properly before the Court on demurrer. The parties’_lease agreement is not attached to the complaint and there are no allegations in the complaint regarding a mediation clause. Furthermore, Defendant did not ask the Court to takejudicial notice 0fthe parties’ lease agreement. Therefore, the existence and terms of the purported mediation elause may not be considered by the Court on demurrer. (See South Shore, supra, 226 Cal.App.2d at p. 732 [“[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice”].) Accordingly, the complaint is nOt demurrable on this basis. In oral argument, defendant’s counsel requested an opphrtunity to amend the demurrer to add a request forjudicial notice of the lease agreement. Counsel points out that plaintiff ‘ admitted in its opposition to the demurrer that there was a lease agreement between the parties. That much is true. However, the specific terms of that lease are not admitted. Indeed, apparently the terms of that lease remain contested according to the opposition. Therefore, there is nothing of which the court could judicial notice that would benefit the moving party. The request to amend the demurrer for the purpose of requestingjudicial notice is denied. 7 ORDER RE: DEMURRER AND MOTION TO STRIKE \OOONONm-AWNfl NNNNNNNNM-‘u-‘H-fl-mfl-IH WNONMAwN-‘OOWVONUIhWNt-‘O 2. Second Argument Defendant’s second argument-that the complaint is uncertain and fails to allege facts sufficient to state a cause of action-is directed to each and every cause 0f action of the complaint. (D’s Dem. & Mtn. to Strike, pp. 3221-528; D’s Mem. Ps. & A5,, pp. 11:7-14z26.) Defendant initially contends that Plaintiff’s claims are uncertain and fail to allege facts sufficient to state a cause of action because they only contain conclusory allegations regarding her alleged wrongful conduct and “retaliatory acts.” (D’s Dem. & Mtn. t0 Strike, pp. 3:24-4:19 and 4228-527; D’s Mem. Ps. & As., p. 1216-1 1 .) Defendant asserts that Plaintiff must specify “precisely what the acts were with dates and time.” (Ibid) Defendant states that the allegations of wrongdoing in the complaint are “merely a laundry list ofconclusions which the Plaintiffs attorneyv repeats in tenant cases he files against landlords.” (D’s Mem. Ps. & As., pp. 12:13-14:17.) This contention is not well-taken. The complaint identifies the alleged wrongful acts by Defendant. Specifically, Defendant allegedly left a message accusing Plaintiff of fraud and demanding that she vacate the Premises; “harassed Plaintiff‘s care givers” and “interfered with [their] ability to access [the Premises] and to care for Plaintif ’; “made substantial noise in the unit upstairs throughout the night”; “unilaterally changed the locks” on the Premises; “refused to perform a walk through with Plaintiff’s agent”; “took money from Plaintiff‘s security deposit”; and “failed to retum the full balance ofPlaintiff‘s pre-paid rent.” (Complaint, 1H] 8-1 1.) These allegations adequately identify the nature of Defendant’s alleged wrongful conduct. Furthermore, Defendant does not cite any legal authority providing that Plaintiff must plead additional details regarding the alleged wrongful conduct, such as the dates 0n which the acts occurred. (See Badie v. Bank ofAmerica (1998) 67 Cal.App.4th 779, 784-85; see also Schaefler Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires n0 discussion.”].) Notably, pleading with specificity is only required relative to a few causes of action such as fraud, a claim which Plaintiff does not allege. Defendant also contends that the complaint is uncertain and fails to allege facts sufficient to state a cause of action because the allegations of the complaint “border on the ludicrous.” (D’s 8 ORDER RE: DEMURRER AND MOTION TO STRIKE ._. N N N N N N N N N H H .- .-‘ ._. _‘ _. ._. ._. ._. ' 0° \I O\ LII A b.) N '-‘ O \O m \l O\ Kl! A la) N -‘ O \O 00 \l O\ U1 4} LN N Mem. Ps. & As., p. 14:17-23.) Defendant asserts that the allegations ofthe complaint are unreasonable because “[she] is alleged to be punishing her tenant because the tenant was not causing any trouble.” (Ibid) This contention is not well-taken because “the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align, supra, 179 Cal.App.4th at p. 958.) The purported improbability ofthe allegations is not a ground for demurrer. Next, Defendant contends that the eighth cause of action for breach of contract is uncertain and fails to allege facts sufficient t0 state a cause of action because Plaintiff does not attach a copy of the _contract t0 the complaint; “Plaintiff makes the allegation of failure to provide quiet enjoyment without specifying specific acts”; and “Plaintiff alleges failure to comply with regulations without specifying how Defendant failed to comply and what regulations she failed to comply with.” (D’s Dem. & Mtn. to Strike, p. 4:20-1 6.) Defendant’s contention fails t0 dispose 0fthe eighth cause of action.'Plaintiff is not required to attach a copy 0f the alleged contract t0 her pleading, but may plead the contract by its legal effect. (See Heritage Pacific Financial, LLC v. Monroy (201 3) 21 5 Cal.App.4th 972, 993 [the existence of a written contract “may be pleaded either by its terms-set out verbatim in the complaint 0r a copy of the contract attached to the complaint and incorporated therein by reference-or by its legal effect”].) Here, Plaintiff alleges that she entered into a written contract to rent the Premises from Defendant. (Complaint, 1] 5.) “In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession 0f the premises.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.) Plaihtiff alleges that Defendant breached this covenant by engaging in the alleged retaliatory conduct. (Complaint, 1m 6-10 arid 70771 .) These allegations are sufficient to state a claim for breach of contract and, as explained above, Plaintiff does not need to plead the claim with specificityz 2 Because the allegations regarding breach ofthe covenant ofquiet enjoyment adequately support a claim for breach of contract, the Court need not address the sufficiency ofthe allegations regarding Defendant’s alleged failure to comply with regulations. ‘ 9 ORDER RE: DEMURRER AND MOTION TO STRIKE \OOO\IO\£J\4>UJN-- NNNNNNNNN#H##‘_._~__._ oouoxmbww-‘oxooouoxm-wa-o For the foregoing reasons, Defendant’s second argument fails to demonstrate that Plaintiff‘s claims are uncertain 0r fail to allege sufficient facts'to constitute a cause of action. 3. Third Argument Defendant’s third argument regarding boilerplate allegations is directed to the first through sexllenth causes 0f action. (D’s Dem. & Mtn. to Strike, pp. 5:9-7z3; D’s Mem. Ps. & As., pp. 1521-16223.) Defendant contends that the first through seventh causes of action are demurrable because they contain boilerplate allegations. (Ibid) Specifically, Defendant asserts that much ofthe language in the first through seventh causes of action is identical to language used in other complaints filed by Plaintiff‘s attorney. (Ibid) The fact that the allegations of the first through seventh causes of action maybe the same as language used in other complaints filed by Plaihtiff‘s attorney is not a ground for demurrer. (See Code Civ. Proc., § 430.10 [setting forth the grounds for demurrer].) Additionally, although boilerplate pleading language is used in the complaint to articulate commonly-expressed legal principles, the factual allegations 0f the complaint are specific to Defendant. Furthermore, t0 the extent Defendant contends that Plaintiff‘s allegations lack specificity, his contention is not well- taken for the reasons explained above. Therefore, Defendant’s third argument fails to dispose of the first through seventh causes of action. 4. Conclusion Because each of Defendant’s arguments are not weIl-taken, the demurrer is OVERRULED. September I3 , 2018 y; V James L. Stoelker Judge ofthe Superior Court 10 ORDER RE: DEMURRER AND MOTION TO STRIKE SUPERIOR COURT OF CALIFORNI ,; ' COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION RE: Jana Mcnulty vs Mina Farahmnad Case Number: 1SCV329112 PROOF OF SERVICE ' ORDER RE: DEMURRER AND MOTION TO STRIKE was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you. a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrators office at (408) 882-2700, or use the Court's TDD line (406) 882-2690 or the Voice/TDD California Relay Service (800) 7352922. DECLARATION OF SERVICE BY MAIL: I declare that | served this notice by enclosing a true oopy in a seated envelope. addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose. CA on September 13, 2018. CLERK OF THE COURT. hm ' z, Deputy, cc: Phillip B Rose PBR Legal 345 E Santa Clara St #107 San e CA 95113 David M Tichane 595 Park Ave Suite 200 San Jose CA 95110 ‘ cw-9027 REV 12/08/16 PROOF OF SERVICE
