Banuelos v.
218 Properties
Filed 9/3/13
Banuelos v. 218 Properties CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
ROSA BANUELOS,
Plaintiff
and Appellant,
v.
218 PROPERTIES, LLC, et al.,
Defendants
and Respondents.
B241645
(Los
Angeles County
Super. Ct.
No. TC024502)
APPEAL from a judgment of the Superior Court of
County, Allen J. Webster, Judge. Affirmed.
Law Office of Spix & Martin,
Richard L. Spix and D. Elizabeth Martin for Plaintiff and Appellant.
Law Offices of Douglas W. Beck &
Associates and Douglas W. Beck; Klinedinst and Gregory A. Garbacz for
Defendants and Respondents, 218 Properties, LLC, LA Investment, LLC, R22,
Inc., dba Star Management and Peter Starflinger.
_______________________________________
Plaintiff Rosa Banuelos appeals from
the judgment entered after the trial court granted
Properties, LLC (218 Properties), LA Investment, LLC (LA Investment), R22,
Inc. (R22), doing business as Star Management, and Peter Starflinger
(Starflinger) (collectively, defendants).
Plaintiff contends that the trial court erred in (1) sustaining
defendants’ demurrer to her causes of action for
retaliation and bad faith, (2) granting defendants’ motion to strike
the complaint’s alter ego allegations, and (3) granting summary judgment
as to her remaining causes of action. We
disagree and affirm.
AND PROCEDURAL BACKGROUND
1. The
Sale
On
June 26, 2010, plaintiff entered into a contract (Contract) to sell her mobile
home in Park Granada Trailer Lodge (Park Granada) to Rosa Rodriguez (Rodriguez)
for $55,000. 218 Properties owns Park
Granada and LA Investment owns 100% of the membership interest in 218
Properties. R22 is the property manager
for Park Granada and Starflinger is R22’s agent.
On
June 28, 2010, Rodriguez submitted an application for residency at Park Granada
as a potential purchaser of plaintiff’s mobile home. The application included paystubs showing
monthly gross income of $4,000, however, Rodriguez’s credit report showed that
she owed $5,112 per month in loan payments.
On July 2, 2010, counsel for 218 Properties wrote Rodriguez asking for
the following additional information in support of her application: (1) a schedule of her real estate; (2) a
copy of the most recent mortgage statement for each of her mortgage loans; (3)
a schedule of gross income, expenses and net income for each rental property
she owned; (4) verification of funds to complete the purchase; and
(5) a statement that Rodriguez intended to reside in the subject
mobile home.
Rodriguez
did not respond to the letter and, on July 7, 2010, exercised her right to
cancel the purchase because she did not want to provide the documentation
requested. On January 10, 2011, a new
buyer made an offer to purchase plaintiff’s mobile home for $51,000, which
plaintiff accepted. R22 approved the new
buyer’s application for residency. The
sale closed on February 28, 2011.
2. The
Complaint
The
trial court proceedings as evidenced by the limited record before the court
were as follows.
title="">[1] Plaintiff filed the complaint in the
underlying action on July 20, 2010.
Plaintiff has not included a copy of the complaint in the record,
therefore, its allegations are unknown.
218 Properties and LA Investment raised a demurrer to the first through
eighth causes of action. The court
sustained the demurrer as to the causes of action for declaratory and
injunctive relief, “statutory violations,†intentional interference with
contract, intentional infliction of emotional distress, negligent infliction of
emotional distress, and negligence.
Plaintiff was granted leave to amend except as to the negligence
claim. The court overruled the demurrer
as to the causes of action for intentional interference with economic advantage
and negligent interference with economic advantage.
Plaintiff
amended her complaint. The first amended complaint
is also not included in the record. Defendants
218 Properties and LA Investment demurred.
Defendants R22 and Starflinger demurred separately. The court sustained both demurrers as to the
causes of action for declaratory relief and “statutory violations†with leave
to amend. The court also sustained R22
and Starflinger’s demurrer to the causes of action for intentional interference
with contract, intentional interference with economic advantage, and negligent
interference with economic advantage without leave to amend on the grounds that
the complaint alleged that R22 and Starflinger were only acting in their
capacity as agents for 218 Properties and LA Investment.
Plaintiff
filed her second amended complaint on January 7, 2011 in which she alleged that
defendants’ refusal to approve the transfer of her lease to Rodriguez without
further documentation violated Civil Code section 798.74. Civil Code section 798.74 provides that
the management of a mobile home park “may require the right of prior approval
of a purchaser of a mobilehome that will remain in the park,†however,
“[a]pproval cannot be withheld if the purchaser has the financial ability to
pay the rent and charges of the park . . . . †(Civil Code, § 798.74, subd. (a).)
The
second amended complaint also alleged causes of action for unfair business
practices, retaliation, violation of the Unruh Act, bad faith, intentional
interference with contract, intentional interference with economic advantage,
negligent interference with economic advantage, intentional infliction of
emotional distress, and negligence.
Plaintiff chose not to amend her cause of action for declaratory
relief. Despite the court’s ruling
denying leave to amend as to the interference claims as to R22 and Starflinger,
plaintiff continued to allege these claims against those defendants.
218
Properties and LA Investment filed a demurrer and motion to strike. R22 and Starflinger demurred separately.
The court sustained both demurrers to the causes of action for unfair business
practices, retaliation, violation of the Unruh Act, and bad faith without leave
to amend. The court also granted 218
Properties and LA Investment’s motion to strike the alter ego allegations
in the complaint and granted plaintiff leave to amend. Plaintiff has not included a copy of the
minute order in the record.
Plaintiff
filed her third amended complaint on April 4, 2011. Plaintiff continued to plead those causes of
action to which the court had sustained defendants’ demurrers without leave to
amend. Defendants filed a motion to
strike those causes of action as well as the alter ego allegations and portions
of the complaint that had previously been stricken. The court granted the motion to strike in its
entirety without leave to amend.
Defendants
answered the complaint and then each moved for summary judgment. R22, 218 Properties and Starflinger argued
that summary judgment was proper because the request for further documentation
from Rodriguez was reasonable and permitted under Civil Code
section 798.74. LA Investment argued
that, as a member of a limited liability company, it was immune from
liability for 218 Properties’ actions.
In opposition, plaintiff argued that defendants approved the residency
applications of prospective mobile home purchasers who were friends and relatives
of Starflinger while arbitrarily refusing to approve the applications of other
prospective purchasers. Defendants
replied and filed evidentiary objections.
The
court granted summary judgment as to each defendant, and sustained 125 of
defendants’ evidentiary objections. The
court held that summary judgment was proper as to 218 Properties, R22 and
Starflinger because plaintiff’s separate statement was deficient. The court also ruled that the undisputed
evidence established that LA Investment was not liable for the acts of 218
Properties, and that Starflinger was not liable for the acts of R22.
The
court further found that each cause of action failed on the merits on the
following grounds: (1) as to the cause
of action for violation of Civil Code section 798.74 and the derivative
negligence claim, the undisputed evidence showed that Rodriguez cancelled her
purchase of plaintiff’s mobile home because she did not want to respond to the
requests for further information and those requests were objectively
reasonable; (2) as to the intentional interference with contract cause of
action, it was undisputed that Rodriguez exercised her contractual right to
cancel the purchase and, furthermore, these defendants were not strangers to
the contract; (3) as to the interference with economic advantage cause of
action, the undisputed evidence showed that the interference was not wrongful
and the requests for additional information were objectively reasonable; and
(4) as to the intentional infliction of emotional distress cause of action, the
undisputed evidence showed that defendants did not engage in extreme or
outrageous conduct and plaintiff did not suffer severe emotional distress.
Plaintiff
filed a timely notice of appeal.
1. Standard
of Review
On
appeal from a dismissal following the sustaining of a demurrer, we review the
complaint de novo to determine whether it alleges facts stating a cause of
action under any legal theory. (
Materials, Inc. (2007) 152 Cal.App.4th 115, 122.) We also review an order granting a motion for
summary judgment de novo. (Gutierrez
v. Girardi (2011) 194 Cal.App.4th 925, 931.) A motion for summary judgment is properly
granted when there are no triable issues of material fact and the moving party
is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,
subd. (c).) We review an order striking
all or part of a pleading under Code of Civil Procedure section 435, et seq.
for abuse of discretion. (
Cal.App.4th 1256, 1282.) “This means
that the reviewing court will disturb the ruling only upon a showing of a
‘clear case of abuse’ and a ‘miscarriage of justice.’ [Citations.]â€
(Ibid.)
2. Declaratory
and Injunctive Relief Cause of Action
Plaintiff
contends that the court erroneously sustained defendants’ demurrers to her
cause of action for declaratory and injunctive relief. Plaintiff appears to be referring to the
declaratory relief cause of action alleged in the first amended complaint and
the court’s ruling sustaining defendants’ demurrers to this cause of
action. Plaintiff has not included a
copy of this version of her complaint in the record, therefore, we cannot judge
whether her allegations were sufficient to withstand demurrer.
3.
Plaintiff
contends that the court erroneously sustained defendants’ demurrers to her
cause of action for retaliation. The
second amended complaint’s cause of action for retaliation alleged that
defendants’ refusal to “provide reasonable landlord services of approving
prospective purchasers of plaintiff’s home†violated the common law and Civil
Code sections 798.74, 798.74.5, 798.75 and 1942.5, and the Carson Rent Control
Ordinance. The court sustained
defendants’ demurrers to this cause of action without leave to amend. The court’s minute order is not in the
record.
Plaintiff
now argues that the complaint adequately alleged facts stating that defendants’
“reduction in service[s]†was “motivated by retaliatory intent†in violation of
Civil Code section 1942.5.
name="_ftnref2" title="">[2] Civil Code section 1942.5, subd. (c)
provides that “[i]t is unlawful for a lessor
to . . . decrease services . . . for
the purpose of retaliating against the lessee because he or she has lawfully
and peaceably exercised any rights under the law.†Here, the second amended complaint does not
allege that defendants reduced services but, rather, that defendants
consistently “refus[ed] to approve the transfer of mobile homes located in the
Park.†In addition, the second amended
complaint does not allege that defendants retaliated on account of plaintiff’s
exercise of her rights but only alleges that defendants retaliated against her
based on her son’s “lawful and peaceful exercise of rights.†Therefore, plaintiff has not shown that she
adequately alleged facts stating a cause of action for retaliation.
Moreover,
the defendants were well within their rights in demanding that the prospective
purchaser located by plaintiff provide satisfactory evidence of an ability to
pay the required park rent and charges.
Civil Code section 798.74 allows park owners to refuse to approve mobile
home purchasers for residency based on their “lack of ability to pay park rent
and charges.†(Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1217 at
fn. 2.) Under the statute, park
owners may require a purchaser to document her “gross monthly income or means
of financial support.†(Civ. Code, §
798.74(a).) Plaintiff implies that the
statute’s reference to “gross monthly income†restricted defendants from asking
Rodriguez for documentation of income less expenses from her rental
properties. However, we read the term
“gross monthly income†to mean an individual’s pre-tax income and not, as
plaintiff implies, an individual’s total income irrespective of any deductible
expenses and maintenance costs (e.g., property taxes and debt service on
income-producing property).
This
reading is consistent with Black’s Law Dictionary which defines “gross income†as the “[t]otal income from all sources before deductions,
exemptions, or other tax reductions.â€
(Black’s Law Dict. (9th ed. 2009), income.) Legislative history also
supports the conclusion that this term was used to mean an individual’s total
income prior to tax reductions. Civil
Code section 798.74 was amended in 1988 to include the language at issue
here. The entire amendment read: “In determining whether the purchaser has the financial ability to
pay the rent and charges of the park, the management shall not require the
purchaser to submit copies of any personal income tax returns in order to
obtain approval for residency in the park.
However, management may require the purchaser to document the amount and
source of his or her gross monthly income
or means of financial support.†(Stats. 1988, ch. 522,
§ 1 [emphasis added].)
This
amendment expressed the intent of the Legislature to “prohibit[] mobilehome
park management from requiring personal income tax returns from persons seeking
approval for residency in a mobilehome park.â€
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analyses
of Sen. Bill No. 1934 (1987-1988 Reg. Sess.) as amended May 9, 1988.) Accordingly, the statute’s reference to
“gross monthly income†was added to underscore park management’s right to
require purchasers to document their income outside of providing tax
returns. Therefore, the use of the term
“gross monthly income†was not intended to restrict park management from
requiring purchasers to document those financial liabilities and obligations
that would have an adverse impact on their ability to pay park rent and
charges.
4. Bad
Faith Cause of Action
Plaintiff
contends that the court erroneously sustained defendants’ demurrers to her
cause of action for bad faith. She
contends that she adequately alleged facts showing that defendants breached
their duty of good faith by preventing her from selling her home “to an
outsider.†However, the second amended
complaint did not allege facts showing that defendants prevented plaintiff from
selling her home, but only alleged that 218 Properties asked Rodriguez to
provide “additional financial documentation†in support of her residency
application. Therefore, plaintiff has
not shown that she adequately alleged facts stating a cause of action for bad
faith.
5. Alter
Ego Allegations
Plaintiff contends that the
court erroneously struck the alter ego allegations in the third amended
complaint. Plaintiff argues that she
adequately alleged “specific and detailed†facts establishing “a claim for the
alter ego doctrine.†Code of Civil
Procedure, section 436, subdivision (a) provides that the court may “[s]trike
out any irrelevant, false, or improper matter inserted in any pleading.†Here, the court struck allegations that (1)
“218 Properties is comprised of principals who had relationships, including
alter egos of the predecessor owners and man[a]gers of the Park,â€
(2) “Starflinger had a unity of interest, ownership, and exercised control
over the operation of each of the other defendants for the purpose of
perpetrating the inequitable results and statutory avoidance alleged below so
that they are his alter egos and agents,†and (3) references to
defendants’ “alter egos.†These
allegations are conclusory and the complaint did not allege any supporting
facts. (Moore v. Regents of University of California (1990) 51 Cal.3d 120,
134, fn. 12.) Therefore, the court
did not abuse its discretion by striking these allegations. (Code Civ. Proc., § 436, subd. (a).)
6. Summary
Judgment
Plaintiff
makes the following arguments in support of her contention that the court erred
in granting summary judgment: (1)
defendants violated Civil Code section 798.74 by asking for “years of cash
flow analysis for each rental property owned by the purchaser [Rodriguez];†(2)
the evidence “in this action†established each of the elements of a cause of
action for intentional interference with contract; (3) “intentional
interference with economic advantage is contained within the evidence;â€
(4) “negligent interference with economic relations is establishedâ€
because the defendants owed plaintiff a duty of care under Civil Code section
798.74; and (5) “intentional infliction of emotional distress is supported by
substantial evidence†because there was evidence that Starflinger “intended his
actions to harm plaintiff†knowing of “plaintiff’s prior heart attack which
predictably caused severe emotional distress to the plaintiff.â€
Plaintiff’s
arguments improperly rely on evidence to which objections were sustained. However, plaintiff does not challenge the court’s
rulings sustaining defendants’ objections to this evidence. As a result, any issues concerning the
correctness of the court’s evidentiary rulings have been waived and we consider
all such evidence to have been properly excluded. (Lopez
v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
In
addition, plaintiff does not address the numerous alternate bases for the trial
court’s rulings, including the court’s conclusion that her separate statement
was deficient and that LA Investment was not liable for the acts of 218
Properties.
title="">[3] Therefore, plaintiff has failed to show that
summary judgment was improper and we need not address the select arguments she
does raise.
The judgment is affirmed. The defendants shall recover their costs on
appeal.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
Acting P. J.
WE CONCUR:
KITCHING,
J.
ALDRICH,
J.
title="">[1]
Plaintiff’s index selectively represents the record to the court. It is the appellant’s burden to provide an
adequate record on appeal. (
(1993) 18 Cal.App.4th 1784, 1794.)
To the extent the record is inadequate, we make all reasonable
inferences in favor of the judgment. (
name="_ftn2" title="">[2] Civil
Code section 1942.5 applies to plaintiff in her capacity as a former tenant of
Granada Park.
