Saffore v. Jones CA2/5 ( 2023 )

Filed 3/9/23 Saffore v. Jones CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHARLES A. SAFFORE, B309099
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct.
No. 19STCV23574)
MARGARET A. JONES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara M. Scheper, Judge. Affirmed.
Charles A. Saffore, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Kelly W.
Migoya and Suzanne L. Schmidt for Defendants and
Respondents.
——————————
Plaintiff and appellant Charles A. Saffore appeals from a
judgment of dismissal following the sustaining of a demurrer
without leave to amend in favor of defendants and respondents
Margaret A. Jones, Jones & Jones Management Group, Inc. (the
Management Group), and Roxanne Partnership, L.P. (collectively
defendants), in this action arising out of the habitability of a
rental property. We conclude Saffore’s contentions on appeal fail
to present any clear, reasoned argument for reversal. The
defendants’ failure to meet and confer is not grounds to reverse
the judgment, and the complaint failed to state a claim for
negligence, fraud, or intentional tort. Therefore, we affirm.
FACTS1
In 2015, Jones was the chief financial officer of the
Management Group, as well as president and chief executive
officer of Roxanne. Roxanne owned a rent-controlled 22-unit
apartment building in Los Angeles. The water pipes in the
apartment building were corroded, requiring complete
replacement.
In April 2015, Roxanne submitted a tenant habitability
plan (the plan) describing repair work for the property that would
have an impact on habitability. The primary renovation work
was described as a complete repipe with new copper piping for
22 units, as well as patching holes in the walls that were required
1 We assume the truth of facts alleged in the operative
third amended complaint or appearing in the attached exhibits,
in accordance with the standard of review for an order sustaining
a demurrer. (See, e.g., Genis v. Schainbaum (2021)
66 Cal.App.5th 1007, 1014–1015.)
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to repipe. The plan stated that holes would be made in the
kitchens and bathrooms to access and replace existing pipes.
Tenants’ possessions were to be covered in plastic to prevent
damage. With notice, the water would be shut off for only one or
two days throughout the entire project. The plan stated the
tenants did not need to temporarily relocate, because their homes
would be habitable outside of construction hours and they would
not be exposed to hazardous materials. Construction was
expected to take 29 days, within a specific time frame. The Los
Angeles Housing and Community Investment Department (the
Department) accepted the plan.
Saffore was a tenant in the building, with a medical history
of pneumothorax, high blood pressure, and prediabetes. He sent
a request for permanent relocation assistance to the building
owner in April 2015. Saffore also filed a timely appeal of the plan
on the ground that the work would complicate his existing
medical conditions. At a hearing on his appeal, Saffore requested
temporary relocation assistance for the duration of the
construction work, questioned the adequacy of the landlord’s
asbestos report, noted that testing for lead had not been
completed, and doubted that the project would be completed
within 29 days.
Based on concerns raised by tenants at the hearing, the
landlord conducted additional testing for asbestos and lead. The
asbestos report showed no asbestos in the units and a minimal
level in the exterior stucco material, which did not subject the
building to abatement regulations. The report confirmed the
presence of lead-based paint, but the Department found the
report was sufficient to allow the project to proceed, because the
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use of lead-safe practices would adequately address potential
exposure to lead-based materials.
A hearing officer for the Department issued a decision in
August 2015. The hearing officer noted that Los Angeles
Municipal Code (LAMC) section 152.03(A)(1) required landlords
to obtain a permit before undertaking primary renovation work.
In addition, LAMC section 152.05 and Rent Adjustment
Commission (RAC) Regulations and Guidelines, regulation
715.00 et seq., provides that affected tenants have the option to
voluntarily terminate their tenancies in exchange for permanent
relocation assistance when primary renovation work and related
work will impact the habitability of a rental unit for 30 days or
more.
The hearing officer found that because the work described
in the plan would be completed within 29 days, the units would
be returned to habitable conditions outside of working hours, and
the tenants would not be exposed to hazardous materials, the
tenants were not entitled to permanent relocation assistance or
temporary replacement housing. Although specific tenant
circumstances might make it unsafe for a tenant to remain in
place, there was insufficient evidence that it was unsafe for any
tenant to remain in place during the proposed work. The new
time frame for construction was to begin on September 14, 2015,
and to finish on October 13, 2015.
The hearing officer accepted the plan and ordered the
landlord to obtain all permits and inspection approvals required
by the Los Angeles Department of Building and Safety (LADBS),
including any corrections required. The landlord was ordered to
perform all work in a lead-safe manner, in accordance with
established practices. Under LAMC section 152.05(A), if the
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primary renovation work or any related work continued for 30
days longer than the projected completion date, the option of any
affected tenant to accept permanent relocation assistance must
be renewed.
Work commenced on September 14, 2015. Saffore
requested a negative air machine to be used on September 21,
2015, when the walls would be open in his apartment, due to his
history of pneumothorax. The record does not reflect whether he
received a negative air machine.
After an inspection on September 30, 2015, the LADBS
issued a correction notice for several items. One of the items
listed was to provide insulation on all hot water mains and
circulating piping, including specific instruction to install
insulation on the hot water main at the water heater location.
The Department inspected all of the tenant units on
October 26, 2015, for compliance with the plan, except one in
which the tenant was not home and had a dog with a history of
biting. The inspection showed that all patching, painting, and
clean-up work for the repiping of the building had been
completed. An LADBS inspector inspected the plumbing work
and the repipe permit was “[f]inaled” by the LADBS on
October 29, 2015. The plan was closed as of October 29, 2015.
On November 16, 2015, the Management Group denied
Saffore’s request for permanent relocation assistance, because
the plan was closed by the Department’s inspection on
October 29, 2015, within 30 days of the completion date of
October 13, 2015.
In March 2017, the Management Group notified tenants
that the City of Los Angeles Rent Stabilization Board had
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approved a rent increase of $20.06 per month based on the
capital improvement, which would be effective May 1, 2017.
Saffore found an area of piping in the garage that was not
insulated. Complaint number 624968 was filed with the
Department on May 15, 2017, concerning a leaky or defective
plumbing fixture. The Department conducted an inspection on
June 1, 2017. The inspector observed exposed piping in the
garage area. The Department issued an order to the owner to
provide permits and a final inspection approval from LADBS for
the plumbing repipe to include exposed pipes in the garages on
two sides of the building. In addition, the owner was ordered to
insulate all exposed hot water pipes in the garages on two sides
of the building. Complaint number 624968 was closed that day.
The inspector opened complaint number 628002, however,
to address the uninsulated hot water piping in the garage area.
An inspection notice was sent to the property owner requesting
that the owner insulate all exposed hot water pipes in all garage
areas. The exposed piping in the garage area was subsequently
covered over with plaster, without obtaining a permit for the
plaster work. The inspector verified that the owner had
previously obtained a plumbing permit for the plumbing work,
which was signed off by the LADBS. At an inspection on July 10,
2017, the inspector found the hot water piping insulation
violation was corrected and closed complaint number 628002.
Saffore wrote to the Department’s Regulatory Compliance
and Code Bureau alleging that complaint numbers 624968 and
628002 had been closed in error. He asked the Department to
have LADBS reinspect the plumbing work. Chief Inspector
Robert Galardi replied to Saffore on October 25, 2017, to explain
the inspections that had been conducted and the closure of the
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complaints. He noted that the Department had no authority to
request that LADBS reinspect the completed permitted plumbing
work.
On June 30, 2018, Saffore moved out of his rental unit.
PROCEDURAL HISTORY
On July 8, 2019, Saffore, representing himself, filed a
complaint against several defendants, including Jones, the
Management Group, and Roxanne. He filed an amended
complaint, followed by a second amended complaint. Jones filed
a demurrer to the second amended complaint, as did the
Management Group and Roxanne. The record on appeal does not
contain the ruling on the demurrers or a reporter’s transcript of
the hearing, but the respondents’ brief states that the trial court
sustained the demurrers with leave to amend.
On July 17, 2020, Saffore filed the operative third amended
complaint against Jones, the Management Group, and Roxanne,
claiming negligence, intentional tort, and fraud. In the cause of
action for negligence, Saffore alleged the defendants did not
follow rent control regulations and the provisions of the plan.
The defendants allowed the contractor to practice unsafe lead
and asbestos practices by not covering walls located at the
entrance walk way, the rear walk way, or the garage and kitchen
areas. The laundry room was covered with paper, rather than
the required plastic. The defendants provided unsubstantiated
lead and asbestos reports with unfounded samples for testing
that were not obtained from the subject property. The
defendants also allowed the contractor to plaster over areas that
were required to be inspected and approved before covering, in
7
order to claim that the primary renovation work was completed
on time and avoid paying relocation assistance for work not
completed within 30 days. The last day work was done without a
permit was July 10, 2017.
Saffore stated the basis for liability for the cause of action
for intentional tort was fraud, but also stated the basis was
“Intentional Tort, that is classified as both Criminal and Civil
acts coupled with Nuisance.” In this cause of action, Saffore
alleged the Management Group agreed to install a certain type of
insulation. The Department initiated a complaint on June 7,
2017, which verified the insulation of the hot water circulation
pipes was “intentionally breached on July 10, 2017 without a
Permit for Compliance Inspection Approval.” The defendants
continued to collect the rent increase imposed based on the
capital improvement from July 10, 2017, through June 30, 2018.
The capital improvement was not completed, however, because no
compliance inspection approval had been issued. Saffore was not
given temporary relocation assistance for the construction work
that exceeded the plan’s projected completion date.
In the cause of action for fraud, Saffore alleged that by
failing to obtain a permit, the defendants had no authority to
increase his monthly rent based on a capital improvement. The
defendants’ representation was false, because the work was
performed without a compliance inspection approval. The
defendants continued to charge the rent increase based on the
capital improvement without obtaining an approval through the
date that Saffore moved out. The defendants concealed the fact
that they had not obtained a compliance inspection approval for
work performed on July 10, 2017, which the defendants were
required to disclose. The defendants promised the tenants would
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not be affected by the plan for more than 30 days, but the work
extended beyond the specified date and the defendants denied
Saffore’s request for temporary relocation assistance and did not
obtain the compliance inspection approval for the July 10, 2017
construction work as required. Saffore paid the rent increase in
reliance on the defendants’ compliance. He discovered the fraud
when he received the letter from Galardi stating that the
defendants had not obtained a compliance inspection approval for
the July 10, 2017 work. The fraud caused Saffore mental
anguish and inflicted emotional distress, as well as monetary
damages from the rent increase. Saffore sought $1 million in
relocation assistance, personal injury damages, and punitive
damages. Several documents were attached to the complaint.
The defendants filed a demurrer to the third amended
complaint and a motion to strike the complaint. They argued the
complaint was uncertain, unintelligible, and failed to plead
sufficient facts to state a cause of action. The defendants’
attorney filed a declaration stating that prior to the demurrer to
the second amended complaint, she had sought to meet and
confer with Saffore. Saffore disagreed about representations
made during their discussions and made remarks about her that
she perceived as disparaging. In her view, any attempt to meet
and confer about the most recent demurrer and motion to strike
was futile.
In opposition to the demurrer, Saffore objected to the
failure to make a good faith effort to meet and confer. He argued
that the cause of action for negligence stated the defendants had
a duty to provide permanent relocation assistance under LAMC
section 152.05(A), which was breached when the construction
extended more than 30 days longer than the proposed completion
9
date, and he suffered mental anguish and a sprained spine from
moving furniture due to the denial of permanent relocation
assistance fees.
He also argued that the elements of an intentional tort
alleged were a duty to install insulation of all hot water
circulating pipes, which was breached when the work was not
completed, which caused Saffore to pay an unsupported rent
increase and suffer emotional distress. With respect to fraud,
Saffore alleged the representation made to him was the rent
increase based on a capital improvement, which the defendants
denied was incomplete, and he was denied relocation assistance
fees.
A hearing was held on the demurrer and motion to strike
on October 23, 2020. No reporter’s transcript or settled
statement has been included in the record on appeal. The trial
court sustained the demurrer without leave to amend. The court
found the allegations of the complaint were vague and confusing.
The third amended complaint was uncertain in its entirety, from
the numbering of the causes of action to the confusing allegations
and the disorganized attachment of exhibits. There were no
allegations establishing Jones was the alter ego of the other
defendants. With respect to the cause of action for negligence,
Saffore failed to allege any duty owed to him by Jones or the
Management Group as to lead and asbestos practices or
plastering over exposed pipes. Roxanne owned the property, but
Saffore did not allege facts showing Roxanne owed him a duty or
how that duty was breached. The cause of action for intentional
tort did not plead sufficient facts to state any claim. The
complaint did not allege any species of fraud with the requisite
specificity. Saffore did not allege any specific misrepresentation
10
or who made it. He did not allege that the defendants had a duty
to disclose anything to him specifically. He also did not allege
that the defendants made a promise with the intent to deceive or
facts showing that they did not intend to perform on any promise.
Saffore did not request leave to amend and did not suggest any
basis for amendment. The trial court entered an order of
dismissal. Saffore filed a timely notice of appeal.
DISCUSSION
Standard of Review
“The function of a demurrer is to test whether, as a matter
of law, the facts alleged in the complaint state a cause of action
under any legal theory.” (Cardenas v. Horizon Senior Living, Inc.
(2022) 78 Cal.App.5th 1065, 1069.) “An order sustaining a
demurrer without leave to amend is reviewed de novo. The court
exercises its independent judgment to determine whether or not
the complaint states facts sufficient to constitute a cause of action
as a matter of law. [Citation.] We assume the truth of properly
pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded, and matters that are judicially
noticeable. [Citation.] We construe the pleading in a reasonable
manner and read the allegations in context. [Citation.] However,
courts will not close their eyes in situations where a complaint
contains allegations of fact inconsistent with attached
documents/exhibits, or allegations contrary to facts which are
judicially noticed. [Citation.] Where facts appearing in attached
exhibits or judicially noticed documents contradict, or are
inconsistent with, the complaint’s allegations, we must rely on
11
the facts in the exhibits and judicially noticed documents.”
(Genis v. Schainbaum, supra, 66 Cal.App.5th at pp. 1014–1015.)
On appeal, the judgment of the trial court is presumed to
be correct, and appellant has the burden of demonstrating
reversible error by an adequate record. (Ballard v. Uribe (1986)
41 Cal.3d 564, 574.) Moreover, any issue not adequately raised
or supported is deemed forfeited. (Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6; see Del Real v. City of
Riverside (2002) 95 Cal.App.4th 761, 768 [“The appellate court is
not required to search the record on its own seeking error”].)
“ ‘Appellate briefs must provide argument and legal
authority for the positions taken. “When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.” ’ [Citation.] ‘We are not bound to develop appellants’
argument for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the
contention as waived.’ ” (Cahill v. San Diego Gas & Electric
Co. (2011) 194 Cal.App.4th 939, 956.) “We may and do ‘disregard
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.’ ” (United Grand
Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)
It “is appellant’s burden to provide a reporter’s transcript if
‘an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court . . . ’
(Cal. Rules of Court, rule 8.120(b)), and it is the appellant who in
the first instance may elect to proceed without a reporter’s
transcript (Cal. Rules of Court, rule 8.130(a)(4)).” (Sanowicz v.
Bacal (2015) 234 Cal.App.4th 1027, 1034, fn. 5.) In
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an appeal involving the abuse of discretion standard of review, a
reporter’s transcript, or an agreed or settled statement of the
proceedings is usually indispensable. (See, e.g., Vo v. Las
Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448
[“The absence of a record concerning what actually occurred at
the trial precludes a determination that the trial court abused its
discretion”]; see Southern California Gas Co. v. Flannery (2016)
5 Cal.App.5th 476, 487 [without reporter's transcript or suitable
substitute, appellant cannot demonstrate an award of attorney
fees constituted an abuse of discretion].) That a party is in
propria persona does not excuse compliance with these
requirements. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–
985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536,
543.)
Contentions are not Understandable
Saffore’s opening brief on appeal does not contain any
cognizable argument supporting reversal. For example, under
the heading “Reversal of erroneous judgment of dismissal is
warranted,” Saffore makes no understandable argument. Saffore
provides separate headings for his contentions, but several of
headings are followed by no legal or factual argument
whatsoever, and therefore, have been waived. The statements in
his briefs are also conclusory, without an understandable
analysis of citations to the record or the law.
The failure to provide a reporter’s transcript or suitable
substitute for any hearing at issue prevents this court from
reviewing objections raised during the hearings or the trial
court’s discretionary rulings. For example, Saffore contends the
13
trial court judge should have recused herself, but there is no
evidence in the appellate record of any discussion or action in the
trial court concerning recusal. Based on the argument in
Saffore’s brief, this issue does not even relate to the ruling on the
demurrer to the operative third amended complaint. As
discussed further below, the demurrer was properly sustained,
and no error has been shown on appeal.
Meet and Confer Requirement
Saffore contends the judgment must be reversed because
the defendants failed to meet and confer as required by statute.
This is incorrect. “Under [Code of Civil Procedure] section
430.41, before filing a demurrer, the demurring party must meet
and confer with the party who filed the challenged pleading ‘in
person or by telephone’ to determine if the demurring party’s
objections can be resolved by agreement. (§ 430.41, subd. (a)(1).)
If the parties are unable to meet and confer at least five days
before the responsive pleading is due, the demurring party must
file a declaration stating that a good faith attempt to meet and
confer was made and explaining the reasons the parties could not
meet and confer. (Id., subd. (a)(2).) . . . [Citation.] . . . However,
under section 430.41, subdivision (a)(4), ‘[a]ny determination by
the court that the meet and confer process was insufficient shall
not be grounds to overrule or sustain a demurrer.’ ” (Dumas v.
Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348,
355.) No abuse of the trial court’s discretion has been shown with
respect to the meet and confer requirement, and the order
sustaining the demurrer may not be reversed for failing to meet
and confer.
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Complaint Fails to State a Claim
Saffore has not shown that the allegations of the complaint
were sufficient to state any claim against the defendants.
A. Negligence
“To succeed in a negligence action, the plaintiff must show
that (1) the defendant owed the plaintiff a legal duty, (2) the
defendant breached the duty, and (3) the breach proximately or
legally caused (4) the plaintiff's damages or injuries.” (Thomas v.
Stenberg (2012) 206 Cal.App.4th 654, 662.) “The limitations
period for a cause of action for ordinary negligence is two years.”
(So v. Shin (2013) 212 Cal.App.4th 652, 662.)
The complaint does not allege a duty that the defendants
had to Saffore that was breached within the statute of limitations
for negligence. The complaint refers generally to RAC
regulations and the plan, but does not state a particular
regulation or provision created a duty to Saffore that was
breached by the defendants’ conduct. The complaint alleges the
defendants provided false lead and asbestos reports prior to
construction, and allowed unsafe lead and asbestos practices
during construction, but Saffore was aware of any claim that he
had based on these acts no later than October 29, 2015, when the
Department closed the plan. Saffore’s initial complaint was filed
on July 8, 2019, long after the statute of limitations expired to
bring claims based on the testing reports or the practices during
construction.
Saffore alleged the defendants were negligent by allowing a
contractor to plaster over exposed piping in the garage in July
15
2017. It is not clear whether Saffore contends an additional
permit was required to complete the plastering work, or an
additional inspection and approval of the piping before or after
plastering, or if he alleges required insulation was not installed
before the pipes were plastered over, and if so, the factual basis
for making such an allegation. The complaint fails, however, to
allege the source of a duty to Saffore that was breached, or how
plastering over the exposed piping caused Saffore to suffer any
damages. The documents attached to the complaint show that all
required inspections and approvals were completed prior to
plastering the area. There is no allegation that Saffore’s unit was
not habitable as a result of the conditions in the garage. The
complaint failed to state a cause of action for negligence.
B. Fraud
The elements of fraud are: a misrepresentation (false
representation, concealment, or nondisclosure); knowledge the
misrepresentation is false; intent to induce reliance on the
misrepresentation; justifiable reliance; and damages as a result
of the misrepresentation. (Cohen v. Kabbalah Centre Internat.,
Inc. (2019) 35 Cal.App.5th 13, 20; Small v. Fritz Companies,
Inc. (2003) 30 Cal.4th 167, 173.)
The cause of action for fraud fails to allege any
representation made to Saffore with the requisite specificity for a
fraud claim, including the person who made the representation,
the content of the representation, and the date that the
representation was made. To the extent that Saffore is alleging
the notice sent by the Management Group about a monthly rent
increase based on the capital improvement project contained a
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false statement because the defendants had not obtained a
compliance inspection approval for work in the garage of the
building, he has failed to allege a claim for fraud. He has not
alleged that a compliance inspection approval was required
before a rent increase could be imposed based on a capital
improvement project. If it was required, he has not alleged the
Management Group was aware the project was not complete,
such that the statement about a monthly rent increase approved
by the rent control authority was false. There is no allegation
that the Management Group intended to deceive Saffore when it
made the statement, rather than making the statement in a good
faith belief that the capital improvement was complete, and a
rent increase had been authorized. No claim for fraud based on a
misrepresentation of fact has been stated.
The complaint did not state a claim based on concealment
of the status of a compliance inspection approval, because there
was no allegation that the defendants had a duty to inform
Saffore about the status of a compliance inspection approval. The
complaint also failed to state a cause of action for a false promise
without the intent to perform, because there is no allegation that
the defendants did not intend to perform the promises that they
made in the plan at the time they made them. The complaint
fails to state a claim for any species of fraud.
C. Intentional Tort
To the extent that the cause of action for intentional tort is
based on fraud, it did not allege any fraudulent representation
with the specificity necessary to state a fraud claim as stated
above. To the extent that the cause of action for intentional tort
17
is based on nuisance, the complaint fails to state a cause of
action. The elements of an action for private nuisance are:
(1) the plaintiff must prove an interference with his use and
enjoyment of its property; (2) the invasion of the plaintiff’s
interest in the use and enjoyment of the land must be
substantial, i.e., it caused the plaintiff to suffer substantial actual
damage; and (3) the interference with the protected interest must
not only be substantial, it must also be unreasonable, i.e., it must
be of such a nature, duration, or amount as to constitute
unreasonable interference with the use and enjoyment of the
land. (Today’s IV, Inc. v. Los Angeles County Metropolitan
Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.) The
complaint does not allege that the exposed piping in the garage
interfered with Saffore’s use and enjoyment of his unit in any
way, and therefore, the complaint failed to state a claim for an
intentional tort based on nuisance. The demurrer was properly
sustained.
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DISPOSITION
The judgment is affirmed. Margaret A. Jones, Roxanne
Partnership, L.P., and Jones & Jones Management Group, Inc.,
are awarded their costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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