Memorandum Points and Authorities

Cal. Super. - 6th Dist.December 3, 2018

\DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO 180V338709 Santa Clara - Civil Donald S. Gottesman (SBN 082208) David A. Bernardoni (SBN 228155) KULIK GOTTESMAN SIEGEL & WARE LLP 15303 Ventura Boulevard, Suite 1400 Sherman Oaks, California 91403 Tel: (310) 557-9200; Fax: (310) 557-0224 dgottesman@kgswlaw.com / dbemardoni@kgswlaw.c Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 1:23 PM Reviewed By: R. Walker Oggse #1 8CV338709 Envelope: 3587867 Attorneys for Defendant Woodstone by Vintage, L.P. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA LOWRI MCGILL, and a class 0f similarly situated others, Plaintiff, VS. ON-SITE aka ON-SITE MANAGER, INC; VINTAGE HOUSING; KENNEDY WILSON; FPI MANAGEMENT, INC.; and DOES 1-50, Defendants. {00408798} Case N0. 18CV338709 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANT WOODSTONE BY VINTAGE, L.P. TO FIRST AMENDED CLASS ACTION COMPLAINT; DECLARATION RE COMPLIANCE WITH MEET AND CONFER REQUIREMENT Date: November 22, 2019 Time: 9:00 a.m. Dept: 5 Assigned for all purposes to Hon. Thomas E. Kuhnle, Dept. 5 Action filed: Trial date: December 3, 2018 Not set MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES .............................................................4 1. Introduction ............................................................................................................4 2. Statement 0f Facts .................................................................................................. 5 A. The First and Second Causes of Action ....................................................... 5 (i) The facts alleged .............................................................................. 5 (ii) McGill’s legal contentions ............................................................... 7 (iii) The relief sought ............................................................................ 10 B. The Third Cause of Action ........................................................................ 11 3. Legal Argument ................................................................................................... 1 1 A. The Demurrer t0 the First Cause of Action Should Be Sustained .................................................................................................... 1 1 (i) N0 actual controversy .................................................................... 11 (ii) Past Wrongs ................................................................................... 12 B. The Demurrer t0 the Second Cause of Action Should Be Sustained .................................................................................................... 14 4. Conclusion ............................................................................................................ 15 DECLARATION OF DONALD S. GOTTESMAN ................................................................. 16 {00408798} 2 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO TABLE OF AUTHORITIESm Allen v. City ofSacramem‘o (2015) 234 Cal.App.4th 41 ....................................................... 6, 15 Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128 ......................................... 15 Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393 ..................................... 6, 13 Blair v. Rent-A-Center, Inc. (N.D. Cal. Oct. 25, 2017) 2017 WL 4805577, at *2 .................... 16 Cardellini v. Casey (1986) 181 Cal.App.3d 389 ....................................................................... 13 McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 .......................................................................... 16 Otay Land C0. v. Royal Indemnity C0. (2008) 169 Ca1.App.4th 556 ........................................ 13 Palg658prings Villas IIHomeowners Assn, Inc. v. Parth (2016) 248 Cal.App.4th 15 Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604 .................................... 15 Serrano v. Priest (1971) 5 Cal.3d 584 ......................................................................................... 6 Shell Oil C0. v. Richter (1942) 52 Cal.App.2d 164 ................................................................... 15 Shoemaker v. Myers (1990) 52 Cal.3d 1 ................................................................................ 6, 15 Travers v. Louden (1967) 254 Cal.App.2d 926 ......................................................................... 14m Business and Professions Code section 17200 ................................................................ 6, 12, 14 Civil Code section 1929 ................................................................................................. 11, 12, 16 Civil Code section 1940.3(b)(3) ................................................................................................ 10 Civil Code section 1941 ................................................................................................. 11, 12, 16 Civil Code section 1953 ....................................................................................................... 12, 16 Civil Code section 1953(a)(2) .............................................................................................. 10, 11 Civil Code section 1671(d) ........................................................................................................ 10 Civil Code section 1785.1 et seq .................................................................................................. 9 Civil Code section 1785.26 .............................................................................................. 9, 12, 16 Civil Code section 1785.26(b) ..................................................................................................... 9 Civil Code section 1927 ................................................................................................. 11, 12, 16 Health & Safety Code section 25249.6 ........................................................................................ 9 {00408798} 3 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO Constitutional Provisions Article 1, Section 1, of the California Constitution ....................................................... 10, 12, 16 {00408798} 4 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO MEMORANDUM OF POINTS AND AUTHORITIES 1. Introduction This Court previously sustained, With leave to amend, the demurrer 0f defendant Woodstone by Vintage, L.P. (“Woodstone”) t0 the class action complaint of plaintiff Lowri McGill (“McGill”) for declaratory relief. McGill had asked for a declaration that numerous provisions in her residential lease agreement With Woodstone were either illegal or ambiguous. The Court declined the invitation, stating: Plaintiff has alleged n0 facts demonstrating any unsettled grievance 0r other controversy pending under the lease agreement With regard to the long list 0f lease terms included in the Complaint. Rather, Plaintiff simply asserts the lease terms are illegal or ambiguous in the abstract and requests the Court make a finding the provisions are unenforceable. Plaintiff’s allegations do not demonstrate any actual controversy and do not establish any basis for declaratory relief. (Order Re: Demurrers, at p. 5, EXh. 1 t0 Request for Judicial Notice [“RJN”].) In her First Amended Class Action Complaint (“amended complaint” 0r “FAC”), McGill again seeks a declaration that numerous lease terms are illegal or ambiguous. Although she now challenges fewer terms and reveals that she n0 longer lives at Woodstone’s apartment complex, McGill’s amended claim for declaratory relief (the first cause of action) is defective for the same reasons the Court found the prior claim defective. McGill still does not allege that she and Woodstone ever disputed 0r discussed the legality or meaning 0f any particular lease terms. Thus, she again fails t0 “demonstrate any actual controversy” in support of a claim for declaratory relief. The demurrer to the first cause of action should be sustained again, this time Without leave t0 amend. Now that McGill n0 longer has a landlord-tenant relationship With Woodstone, her request for declaratory relief with respect t0 some 0f the challenged lease terms also runs afoul 0f the “past wrongs” rule. That rule bars declaratory relief When “only past wrongs are involved,” the plaintiff has an “accrued cause of action” based on those wrongs, and the {00408798} 5 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO parties n0 longer have a relationship that requires guidance by the court. (Baldwin v. Marina City Properties, Inc. (1978) 79 Ca1.App.3d 393, 407.) MCGill asserts such an “accrued cause 0f action” in her new third cause 0f action, in Which she alleges that Woodstone violated Business and Professions Code section 17200 by including “unlawful” late fee and rent abatement terms in the lease, and prays for restitution. Under the “past wrongs” rule, McGill’s legal rights relative to the legality 0f these terms must now rise or fall on the merits 0f her section 17200 cause of action] McGill’s new second cause of action for a “general public injunction” adds no new facts t0 What she already alleges in the first cause 0f action. She prays for the same injunction she seeks in her first cause of action (i.e., restraining Woodstone from using the challenged lease terms), but labels the injunction a “general public injunction” and cites case law in her pleading as support. The demurrer t0 the second cause 0f action should be sustained for at least two reasons. First, “[i]njunctive relief is a remedy, not a cause of action.” (Allen v. City 0f Sacramento (2015) 234 Cal.App.4th 41, 65 [order “sustaining demurrer was proper because an injunction is not a cause 0f action”].) Second, a claim which “merely duplicates” another claim in the same pleading is subject to demurrer. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24.) 2. Statement 0f Facts A. The First and Second Causes 0f Action (i) Thefacts alleged The amended complaint is confusing. And it is replete With legal conclusions and mischaracterizations of the actual language 0f the lease Which is attached t0 the pleading as Exhibit A. A demurrer admits material facts properly pleaded “but not contentions, deductions 0r conclusions 0f fact 0r law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Accordingly, only the material facts alleged in McGill’s first two causes 0f action are 1 Woodstone has not demurred to the third cause 0f action but has moved t0 strike allegations in that cause 0f action relating to McGill’s rent refund claim. {00408798} 6 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO summarized below. McGill and her family used t0 live in Unit 104 at Woodstone’s apartment complex, known as Vine by Vintage, in Lompoc. (FAC, 1H] 1, 2; Lease, at p. 1.) Her tenancy began on August 14, 2017. (Ibid.) It ended When she vacated her unit 0n August 1, 2019. (FAC, 1] 1; RJN, EXh. 2 [fact number 6].) McGill describes the problems she had With the tenants living above her (the “upstairs tenants”) in the same way she described them in her initial complaint. On “many occasions,” commencing at some unspecified point in time, the upstairs tenants began making loud noises late at night, throwing trash into McGill’s yard, and smoking “things” that got into her unit. (FAC, 1] 8.) The upstairs tenants also allowed unauthorized persons and animals to live in their unit. (Ibid.) In her initial complaint, McGill alleged that, after advising Woodstone’s on-site management about these problems, she asked for two accommodations: t0 be “relieved 0f the lease” and t0 be “paid for relocation to a different complex.” (Complaint, 1] 11.) McGill revises this version 0f events in her amended complaint. She now alleges that, after advising the on-site management about the problems, she asked t0 “have rent returned”2 or “abated.” (FAC, 1W 9, 11.) The on-site management refused McGill’s request for a “return” of rent. (FAC, 1] 9.) The explanation given was that “if they did it for her, they would have t0 d0 it for everyone.” (Ibid.) McGill does not allege that the problems With the upstairs tenants caused her t0 vacate her unit. She does allege that, despite these problems, she continued t0 pay rent “in reliance upon” purported waivers of her right to withhold rent contained in lease sections 10, 26, and 34. (FAC, 11 393.) 2 The actual ungrammatical allegation is that McGill asked to be “relieved of/have rent returned.” (FAC, 1] 9.) 3 This allegation is contained in the third cause 0f action. {00408798} 7 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO McGill alleges that Woodstone attempted “unsuccessfully” t0 evict the upstairs tenants. (FAC, 1] 8.) In fact, Woodstone ultimately evicted the upstairs tenants for non- payment 0f rent 0n February 6, 2019, six months before McGill vacated her unit. The facts regarding the eviction are set out in a stipulation recently filed in this case and can be judicially noticed. (RJN, Exh. 2.)4 In addition t0 the allegations about the upstairs tenants, McGill alleges that she paid $50 late rent fees pursuant t0 section 5 0f the lease. (FAC, 1] 10.) She does not allege when or how many times she paid late fees. But she does say “there appears to be n0 basis for suggesting” that it would be “impracticable” 0r “extremely difficult t0 fix the amount 0f damages for” late rent payments 0r that the $50 fee is “a reasonable approximation 0f damages.” (Ibid.) Finally, McGill alleges that Woodstone has “possession 0f [McGill’s] private information ....” (FAC, 1] 13.) She does not allege What that information is, but it presumably includes the information on her rental application. This is the sum and substance 0f the material facts alleged in the first two causes 0f action. (ii) McGill ’s legal contentions McGill contends that “some 0r all” 0f the lease terms described in paragraphs 10 through 17 0f the amended complaint - Which refer t0 a number of disparate clauses in eight separate lease sections - are illegal. (FAC, 1] 30.) These terms, and McGill’s contentions about them, are described below. Credit Reporting Clause. McGill contends that the credit reporting clause in section 5 0f the lease is illegal. (FAC, 1] 16.) The clause provides that if “Residents don’t pay rent 0n time,” Woodstone may exercise all remedies available under the lease and the law, “including the submission 0f a negative credit report to a credit reporting agency, which 4 Woodstone filed two unlawful detainer actions against the upstairs tenants. Judgment after trial in the first action went in favor of the upstairs tenants. A stipulated judgment was entered in Woodstone’s favor in the second action and possession of the unit was returned t0 Woodstone the next day. (RJN, Exh. 2.) {00408798} 8 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO may result in lowering Residents’ credit score.” This clause, McGill alleges, violates Civil Code section 1785.26, part of the Consumer Credit Reporting Agencies Act (“CCRAA”), Civil Code sections 1785.1 et seq. (Ibid.) The CCRAA allows a creditor t0 “submit negative credit information concerning a consumer t0 a consumer credit reporting agency” but only if, prior t0 or Within 3O days after the transmission of the information, the creditor notifies the consumer that a “negative credit report may be submitted t0 a credit reporting agency if you fail t0 fulfill the terms 0f your credit obligations.” (CiV. Code, § 1785.26, subds. (b) & (c)(2).) McGill does not allege that Woodstone submitted negative credit information about her t0 anyone, or that she discussed this clause with Woodstone, or that this clause has some connection t0 the problems caused by the upstairs tenants. Proposition 65 Clause. McGill contends that the “Proposition 65” clause in section 36 0f the lease is illegal because it “fails t0 inform as provided by the statute.” (FAC, 1] 17.) The unidentified statute is most likely Health & Safety Code section 25249.6, which prohibits exposing any individual to certain toxic chemicals “without first giving clear and reasonable warning t0 such individual ....” The lease’s Proposition 65 clause states that California law “requires Owners to warn Residents if the Premises as well as the common areas contain at least one of the following chemicals known t0 cause cancer or reproductive toxicity, and for Which warnings are now required. These chemicals include, but are not limited t0: tobacco, smoke, lead and lead components, asbestos, carbon monoxide and gasoline components....” McGill does not allege that she was exposed t0 toxic chemicals, 0r that she discussed this clause with Woodstone, 0r that this clause has some connection t0 the problems caused by the upstairs tenants. Disclosure Rights Clause. McGill contends that the “Disclosure Rights” clause in section 33 0f the lease is illegal. (FAC, 1] 13.) The clause authorizes Woodstone t0 provide upon request “information 0n Residents 0r Residents’ rental history for law enforcement, governmental, or business purposes” to someone the “Owner reasonably believes is an authorized representative 0f any government 0r law enforcement agency 0r a , business affiliate.’ This clause, McGill alleges, violates her rights under (1) Civil Code {00408798} 9 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO section 1940.3 Which, in subdivision (b)(3), prohibits a landlord from disclosing information about a tenant’s “immigration or citizenship status” to harass 0r intimidate the tenant, (2) Article 1, Section 1, 0f the California Constitution, regarding privacy, and (3) Civil Code section 1953(a)(2), Which renders void any residential lease clause that CGmodifies 0r waives a tenant’s right t0 assert a cause of action against the lessor Which may arise in the future.” (Ibid.) McGill does not allege that Woodstone disclosed any information about her t0 anyone (including her immigration 0r citizenship status), or that she discussed this clause with Woodstone, or that this clause has some connection to the problems caused by the upstairs tenants. Photo Release Addendum. McGill contends the “Photo Release” addendum t0 the lease contains illegal provisions. (FAC, 1] 15.) The addendum releases Woodstone from liability t0 tenants for using their “photograph[s] in newsletters, promotional items, website, etc.” and for any related “privacy and publicity claims,” and waives any right by tenants to “inspect or approve” such photographs. These provisions, McGill alleges, Violate Article 1, Section 1, 0f the California Constitution and Civil Code section 1953(a)(2). (Ibid.) McGill does not allege that Woodstone’s agents ever took or used photographs of her 0r her family, 0r that she discussed the Photo Release addendum With Woodstone, 0r that this clause has some connection t0 the problems caused by the upstairs tenants. Late Fee Clause. McGill contends that the late fee clause in section 5 0f the lease is illegal. (FAC, 1] 10.) The clause states: “If Owner has not received the full rent payment Withinmg [sic] after it is due to be received ..., Residents shall pay a sum 0fm, as a liquidated damage.” This clause, McGill alleges, is void under Civil Code sections 1671(d) and 1953(a)(2). (Ibid.) McGill does not allege that, before filing suit, she ever objected t0 the late fee clause, 0r asked Woodstone for a refund 0f late fees paid, 0r discussed late fee issues With Woodstone. Nor does she allege that the late fee clause is connected in any way to the problems caused by the upstairs tenants. /// {00408798} 10 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO Lease Sections 10, 26, and 34; Community Policies Addendum. The disparate provisions that McGill contends are illegal in lease sections 10, 26, and 34, and in section B 0f the Community Policies addendum, are the only ones she connects, albeit tenuously, t0 the problems caused by the upstairs tenants. (FAC, 1H] 11, 12, 14, 39.) She alleges that, despite the upstairs tenants’ conduct, she continued t0 pay rent t0 Woodstone “as a result 0f and in reliance upon” these provisions. (Ibid.) The provisions are as follows: o The requirement in section 10 (third and fourth paragraphs) and section B 0f the Community Policies addendum (Alterations 0r Additions) that repair requests must be made “in writing.” o Section 10 (fourth paragraph): “Owner Will act With customary diligence t0 make repairs and connections, taking into consideration When casualty insurance proceeds are received. Rent Will not abate in Whole 0r in part.” o Section 26 (fourth paragraph): “If Residents move out early Without Owner’s written consent 0r Without paying Owner a negotiated lease termination fee, Residents Will be liable to Owner for actual damages, including liability for rents during the entire remainder 0f Residents’ lease term (less mitigation ...).” o Section 34 (second paragraph): “Except When notice 0r demand is required by statute, Residents waive any notice and demand for performance from Owner if Residents default.” McGill contends these terms Violate Civil Code sections 1927, 1929, 1941, and 1953(a)(2). (FAC, W 11, 12, 14.) McGill does not allege that, prior to filing suit, she discussed any 0f these terms with Woodstone 0r told Woodstone she was continuing t0 pay rent, and not withholding it, because 0f these terms. Nor does she allege that Woodstone’s decision to refuse her request for a “return” of rent was based on these lease terms. (iii) The reliefsought On the first cause 0f action, McGill seeks declaratory and injunctive relief 0n behalf 0f “a class 0f tenants who have a lease With some, any 0r all” 0f the challenged lease terms. (FAC, 1] 27.) Specifically, McGill asks for a judgment (1) declaring the “legality or {00408798} 1 1 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO ambiguity” 0f these terms “or the court’s interpretation” 0f them, and (2) enjoining Woodstone “from exploiting and/or enforcing these provisions by informing all past and present tenants of their illegality, unenforceability and correcting them in future leases.” (FAC, fl 31.) On the second cause of action, McGill seeks a “general public injunction, Without certification 0f a class, as t0 all those effected [sic] by the Violation” 0f “Civil Code sections 1785.26, 1927, 1929, 1941, 1953, the California Constitution Art. 1, section 1 and Proposition 65.” (FAC, 1] 34.) The “public injunction,” like the injunction sought in the first cause of action, would restrain Woodstone from using the challenged lease terms “in its lease 0r otherwise enforcing such terms and advising prior tenants of illegality and/or unenforceability of these lease provisions.” (161., 1] 35.) McGill does not seek any form 0f compensatory 0r restitutionary relief in connection With the first 0r second causes of action. B. The Third Cause 0f Action In her new third cause 0f action, McGill alleges that Woodstone’s inclusion in the lease 0f certain terms (i.e., the late fee clause, language in sections 10, 26, and 34, and a provision in the Community Policies addendum) constituted an unlawful, unfair, and fraudulent business practice in Violation of Business and Professions Code section 17200. (FAC, 1] 38.) McGill seeks restitution for herself and “the class” for late fees paid. (FAC, 1] 41, and prayer at p. 12, line 22.) And she seeks restitution for herself, and n_ot for the class, 0f an unspecified amount rent paid t0 Woodstone. (Ibid.) 3. Legal Argument A. The Demurrer to the First Cause of Action Should Be Sustained. (i) N0 actual controversy The Court’s ruling 0n Woodstone’s demurrer t0 the initial complaint laid out the requirements for alleging an “actual controversy” sufficient t0 state a claim for declaratory relief. (RJN, EXh. 1, at pp. 2-5.) The law has not changed since the Court issued its ruling. /// {00408798} 12 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO McGill alleges that “some 0r all” 0f numerous provisions in eight separate lease sections (FAC, 1] 30) are illegal or ambiguous and asks the Court to declare them unenforceable or interpret their meaning. At the demurrer stage, McGill does not have t0 show she “is entitled to a favorable declaration” t0 state a claim for declaratory relief. (RJN, EXh. 1, at p. 3.) But she does have t0 show that a pre-lawsuit “actual, justiciable controversy” had “developed” in order t0 state such a claim. (RJN, Exh. 1, at p. 4, citing Otay Land C0. v. Royal Indemnity C0. (2008) 169 Cal.App.4th 556, 563 [“courts do not issue advisory opinions about the rights and duties of the parties under particular agreements, if no actual, justiciable controversy has yet developed”].) In the amended complaint, McGill fails t0 allege facts to show that, before she filed suit, an actual controversy between her and Woodstone had yet developed about the legality 0r interpretation 0f the challenged lease terms. This Court found the initial complaint deficient because McGill “alleged no facts demonstrating any unsettled grievance or other controversy pending under the lease agreement with regard to the long list of [challenged] lease terms ....” (RJN, EXh. 1, at p. 5.) Having been duly warned about what had t0 be corrected, McGill’s failure to correct the deficiencies in her declaratory relief claim indicates that the demurrer t0 the first cause 0f action should be sustained without leave t0 amend. (ii) Past Wrongs McGill’s pursuit 0f a restitutionary award in the third cause 0f action, based on the purported illegality 0f certain lease terms, requires this Court t0 consider the applicability of the “past wrongs” rule to McGill’s declaratory relief claim. It is settled law that “there is no basis for declaratory relief Where only past wrongs are involved” and the plaintiff has “an accrued cause 0f action for an actual breach 0f contract 0r other wrongful act” based 0n those wrongs. (Baldwin, supra, 79 Ca1.App.3d at p. 407; Cardellim' v. Casey (1986) 181 Ca1.App.3d 389, 396 [declaratory relief is not available When the plaintiff’s rights “have crystallized into a cause 0f action for past wrongs,” a “money judgment Will fully resolve the dispute,” and “no continuing relationship exists to justify a declaration of future {00408798} 13 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO rights”].) One 0f the leading cases on the “past wrongs” rule is Travers v. Louden (1967) 254 Cal.App.2d 926 - cited by this Court in its prior ruling. (RJN, Exh. 1, at p. 3.) Travers involved a real estate purchase and sale agreement. The plaintiff buyer alleged that the defendant seller breached the agreement by transferring the property to a third party. Rather than sue for breach 0f contract, the plaintiff sought declaratory relief “as t0 the remedy which [he] might pursue.” (Travers, supra, 254 Cal.App.2d at p. 929.) The Travers court affirmed the trial court’s dismissal 0f the action, stating: [W]e have found n0 authority for the proposition that declaratory relief is proper procedure When the rights 0f the complaining party have crystallized into a cause of action for past wrongs, all relationship between the parties has ceased t0 exist and there is n0 conduct 0f the parties subj ect to regulation by the court. (Ibid.) The rationale behind the “past wrongs” rule is that When a “cause 0f action has already accrued and the only question for determination is the liability or relief for or to Which the respective parties are charged, ‘the nature of the action is not a cause for declaratory relief, but is defined by the subject-matter 0f the accrued cause 0f action.’ ” (Travers, supra, 254 Cal.App.2d at p. 930-931, quoting Standard Brands 0f Cal. v. Bryce (1934) 1 Cal.2d 718, 721.) Here, McGill claims t0 have an accrued claim (her third cause 0f action) for restitution 0f late fees and rent paid. That claim is based on the theory that Woodstone’s inclusion in the lease 0f certain language contained in lease sections 5, 10, 26 and 34 (and in the Community Policies addendum) violated Business and Professions Code section 17200. (FAC, 1] 38.) As t0 these lease terms, all the elements 0f the “past wrongs” rule are present. McGill’s claim arising out 0f Woodstone’s use 0f these terms has, as evidenced by McGill’s assertion 0f the third cause 0f action, “crystallized into a cause 0f action for past wrongs.” She is n0 longer a tenant at Woodstone’s property and thus her relationship {00408798} 14 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO With Woodstone “has ceased.” And, With respect to these terms, there is no future conduct by McGill 0r Plaintiff that needs t0 be “regulat[ed] by the court.” Having vacated the property, she has n0 need for an injunction 0r declaratory relief with respect to these particular terms. Consequently, the “past wrongs” rule furnishes an additional ground for sustaining the demurrer t0 the first cause of action. B. The Demurrer t0 the Second Cause 0f Action Should Be Sustained. McGill’s second cause 0f action is for a “general public injunction.” But there is n0 cause of action in California for an injunction, however it is labeled. “[A]n injunction is a remedy, not a cause 0f action.” (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618; Allen v. City ofSacramento, supra, 234 Cal.App.4th at p. 65 [same]; Shell Oil C0. v. Richter (1942) 52 Cal.App.2d 164, 168 [“Injunctive relief is a remedy and not, in itself, a cause 0f action ....”].) Woodstone’s demurrer to the second cause of action can be sustained 0n this ground alone. An order sustaining a demurrer to a “cause 0f action” for an injunction is “proper because an injunction is not a cause 0f action ....” (Allen v. City ofSacramento, supra, 234 Cal.App.4th at p. 65; Roberts v. Los Angeles County Bar Assn, supra, 105 Cal.App.4th at p. 618 [a “cause of action for an injunction is improper”].) The demurrer should also be sustained because the second cause 0f action is entirely duplicative of the first cause of action. It adds n0 new facts (as opposed t0 legal contentions) not already alleged in the first cause 0f action and seeks essentially the same relief (compare FAC 1H] 31 and 35). It is well settled that a claim Which “merely duplicates” another claim in a pleading is subject t0 demurrer. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24; Palm Springs Villas IIHomeowners Assn, Inc. v. Parth (2016) 248 Ca1.App.4th 268, 290 [the fact that a claim is “duplicative” 0f another claim in the same pleading is “a basis for sustaining a demurrer]; Award Metals, Inc. v. Superior Court (1991) 228 Ca1.App.3d 1128, 1135 [a claim that is “merely a duplication” 0f another is subject t0 demurrer].) /// {00408798} 1 5 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO Finally, the lack 0f substantive merit t0 McGill’s claim for a “general public injunction” is apparent on the face of the pleading. First, “relief that has the primary purpose 0r effect 0f redressing 0r preventing injury to an individual plaintiff-or to a group of individuals similarly situated t0 the plaintiff-does not constitute public injunctive relief.” (McGiZZ v. Citibank, NA. (2017) 2 Ca1.5th 945, 955.) Here, McGill alleges that Woodstone owns a single apartment building in Which she used t0 live. The injunctive relief she seeks might possibly inure to the benefit 0f tenants in that particular apartment building but not to “the general public” at large and thus cannot be considered “public injunctive relief.” (Ibid.) Second, McGill bases her second cause 0f action 0n particular statutes and a constitutional provisions Which do not authorize public injunctive relief - and a court cannot grant such relief unless a statute authorizes it. (Cf. McGill v. Citibank, N.A., supra, 2 Cal.5th at p. 95 1 (when the legislature has enacted “statutory remedies” that authorize “public injunctive relief” such remedies cannot be waived by contract); Blair v. Rent-A-Center, Inc. (ND. Cal. Oct. 25, 2017) 2017 WL 4805577, at *2, affd. in part & dism. in part (9th Cir. 2019) 928 F.3d 819 [When “a statute provides for public injunctive relief,” the right to that relief cannot be waived].) 4. Conclusion For all of the foregoing reasons, Woodstone’s demurrer t0 the first and second causes 0f action should be sustained Without leave t0 amend. (Woodstone does not believe this action is suitable for class action treatment, but will address this issue after the Court rules 0n Woodstone’s demurrer and motion t0 strike.) Dated: October 29, 2019 KULIK GOTTESMAN SIEGEL & WARE LLP By: /s/ DonafcfS. Gottesmom Donald S. Gottesman Attorneys for Defendant Woodstone by Vintage, L.P. 5 “Civil Code sections 1785.26, 1927, 1929, 1941, 1953, the California Constitution Art. 1, section 1 and Proposition 65.” (FAC, 1] 34.) {00408798} 16 MEMORANDUM; DECLARATION \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO DECLARATION OF DONALD S. GOTTESMAN I, Donald S. Gottesman, declare: 1. I am an attorney licensed t0 practice law in the State 0f California and a partner with the law firm of Kulik Gottesman Siegel & Ware LLP, counsel of record for Defendant Woodstone by Vintage, L.P. in this action. I have personal knowledge 0f the facts recited in this declaration and if called as a Witness could testify competently t0 such facts. 2. I am providing this declaration t0 meet the requirements of Code of Civil Procedure section 430.41, subdivision (a)(3)(A). 3. On October 10, 2019, and again on October 22, 2019, I met and conferred by telephone With plaintiff’s counsel 0f record, Ron Bochner. During these telephone conferences, I identified the specific causes of action (i.e., the first cause 0f action for declaratory and injunctive relief and the second cause of action for a general public injunction) that I believed were subj ect t0 demurrer and the legal support for my belief that the pleading was deficient. Mr. Bochner and I did not reach an agreement resolving the objections raised in the demurrer filed concurently herewith. I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct. Executed 0n October 29, 2019 at Sherman Oaks, California. /s/ DonafcfS. Gottesmom Donald S. Gottesman {00408798} 17 MEMORANDUM; DECLARATION