Nalbandian v. The Camden Development CA2/5 ( 2021 )

Filed 12/15/21 Nalbandian v. The Camden Development 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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 FIVE
GREGORY NALBANDIAN, B303861
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC719595)
THE CAMDEN DEVELOPMENT,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Anthony J. Mohr, Judge. Affirmed.
Law Office of Martin Stanley and Martin Louis Stanley for
Plaintiff and Appellant.
Shaw Koepke & Satter, John W. Shaw, Lisa A. Satter, and
Julie A. Mullane, for Defendant and Respondent.
Plaintiff and appellant Gregory Nalbandian (Nalbandian)
had five opportunities to file a complaint against defendant and
respondent The Camden Development (Camden) that did not
suffer from uncertainty and stated a valid cause of action. The
last iteration of the pleading, the operative fourth amended
complaint, was styled in the form of a memorandum of points and
authorities and did not identify the parties or the pertinent
factual allegations. Instead, it included sections labeled
“INTRODUCTION,” “STATUTORY AUTHORITY,”
“DEFENDANT’S DEFENSE HOLDS NO WEIGHT,”
“DEFENDANT CREATING C[A]NCELLED DEPOSITIONS &
APPOINTMENTS,” and “CONCLUSION.” The trial court
sustained Camden’s demurrer to the operative complaint—which
Nalbandian did not oppose—and dismissed the case. Nalbandian
now seeks reversal, however, and we consider whether the
operative complaint can stand as is and whether Nalbandian has
shown how any defects could be fixed by amendment.
I
A
Nalbandian (representing himself) originally sued Camden
in August 2018. What followed over the course of the next year
were sustained demurrers and motions to strike by Camden and
requests to further amend from Nalbandian—or sometimes just
the filing of a new amended pleading without such a request. We
need not recount the procedural particulars. Suffice it to say that
by August 2019, Nalbandian had already filed four complaints
and then submitted a fifth, the operative fourth amended
complaint.
2
The operative complaint is an unusual document. It is
captioned “UNLIMITED CIVIL LAW SUIT CASE FOURTH
AMENDED COMPLAINT RE: BREACH OF CONTRACT,
PROPERTY DAMAGE, PERSONAL INJURY, GRAND THEFT,
UNLAWFUL EVICTION, EMOTIONAL DISTRESS,
INTENTIONAL NEGLIGENCE & MENTAL ANGUISH.” The
caption is followed by text summarizing a prior hearing on
Nalbandian’s third amended complaint, including an apparent
suggestion by the court that Nalbandian obtain legal counsel, and
Nalbandian’s assertions that Camden “has not honored any of the
[c]ourt’s requests” at the prior hearing.
Immediately following all this is a “MEMORANDUM OF
POINTS AND AUTHORITIES” heading. What appear to be the
most pertinent portions of the “INTRODUCTION” that
immediately ensues are the following. Nalbandian signed a lease
agreement in 2016 that was to remain in effect until 2018 but
“was inadvertently terminated without warning” in 2017 and “led
to the grand theft to all of [his] personal, professional &
intellectual property, ultimately leaving [Nalbandian] homeless,
restricted from his residence for the remaining four (4) months
stipulated on the signed breached lease agreement, and
inevitably to the end of his marriage.” “[F]ive (5) weeks prior to
the Breached Lease[ ] Agreement/Unlawful Eviction that took
place . . . AMANDA MARIE VEGA, a high-ranking employee to
[Camden’s] leasing department, reversed her vehicle, under
intoxication, into [Nalbandian’s] vehicle, th[e]n attempted to flee
the scene.” “Approximately five (5) weeks after the HIT & RUN
INCIDENT, [Camden], without warning or notification,
deactivated [Nalbandian’s] key, which was [Nalbandian’s] only
way of entry into his premises. Attached as Exhibit D is the
3
breached agreement, which left [Nalbandian] homeless, stuck in
mental anguish with emotional distress. [¶] [Camden’s]
justification for the unlawful detainer was based on a rejected
TRO created by [Nalbandian’s] ex-wife. Preferential treatment
was given to [Nalbandian’s] ex-wife . . . .”
Following this introductory section is a section quoting or
citing sundry statutory provisions: Civil Code sections 789.3,
subdivision (b)(1) (governing landlord termination of occupancy),
1940.2, subdivision (a) (unlawful acts by a landlord), and 3300
(measure of contract breach damages); Penal Code sections 487
(grand theft), 240 (illegal attempts), 245, subdivision (a)(1)
(assault with a deadly weapon), 594 (vandalism), 135 (destruction
of evidence); and Vehicle Code sections 23152, subdivision (a)
(driving under the influence) and 20002 (hit and run).
Coming after these citations is a section on Camden’s
“DEFENSE,” which, in pertinent part (as best as can be divined)
states: “[Camden] alleges [Nalbandian’s] rights are forfeit due to
the allegations made against [Nalbandian’s] marriage, when the
allegations made against [Nalbandian] were made forfeit from
the law. Attached on previous Complaints from [Nalbandian] are
denied TRO’s filed by [Nalbandian’s] wife, used as a means to
unlawfully terminate the residency of [Nalbandian]. No judge
ordered [Nalbandian] to be removed from his premises. . . . [¶]
After five (5) months from restricting [Nalbandian] from entering
his premises, [Camden] returned only HALF of the down deposit
back to [Nalbandian], when ALL of the down deposit was paid by
[Nalbandian], and deductions incurred were not of [Nalbandian’s]
responsibility when a BOOT-LOCK prevented [Nalbandian] to
enter his premises during the final five (5) months of his
residency there. . . . If [Camden] insisted on an unlawful eviction
4
based on a restraining order, why insist on putting both names
on the returned check knowing the hostile separation they
caused?”
The ensuing section of the operative pleading complains
Camden has not yet deposed Nalbandian. It further asserts that
“[Camden’s] continuous approach to strike [Nalbandian’s]
Complaint and every Amendment thereafter[ ] goes to show the
guilt behind the crimes, if the Complaint were to ever take trial.”
It closes with a series of rhetorical questions, including, “If
Amanda Marie Vega, an employee of [Camden] didn’t cause
intoxicated hit and run damages (both vehicular and physical)
against [Nalbandian] then who did?”
The final “CONCLUSION” section of the operative
complaint prays for “$500,00.00 [sic] for damages incurred under
all the categories of Personal Injury, Property Damage, Breach of
Contract, Unlawful Eviction, Grand Theft, Intentional
Negligence, Mental Anguish & Emotional Distress.” The
complaint explains “$3,500,000.000 [sic] was [initially] requested
for damages incurred because of intellectual property that had
been stolen during the timeframe of the Breach of
Contract/Unlawful Eviction, which valued at that estimation.
However, that intellectual property has been returned since
January of 2019 and $3,000,000.00 has been deduc[t]ed from the
overall requested compensation . . . .”
B
Camden demurred to the operative complaint, arguing it
was uncertain and failed to state a cause of action; Camden also
sought, in the alternative, an order striking the operative
complaint. As to the former ground for demurrer, Camden
5
emphasized the operative complaint did not comply with Rule
2.112 of the California Rules of Court and was a self-styled
memorandum of points and authorities “containing argument[ ]
in lieu of causes of action with supporting facts.” Camden’s
demurrer also attempted to discern possible causes of action the
operative complaint might assert and discussed reasons why
breach of contract, unlawful eviction, and negligence theories of
liability would fail.
So far as the appellate record reveals, Nalbandian filed no
opposition to Camden’s demurrer. The trial court held an
unreported hearing to decide it, and the only record we have of
what transpired is a four-sentence minute order: “Matter is
called for hearing. [¶] Counsel for plaintiff present has a
substitution of attorney form, but it is not yet filed. [¶] After
argument, The Demurrer – with Motion to Strike (CCP 430.10)
filed by [Camden] on 10/24/2018 is Sustained without Leave to
Amend. [¶] [Camden] to prepare and file the order and give
notice.” The trial court later entered a judgment of dismissal.
II
Nalbandian spends almost the entirety of his appellate
briefing mounting an unpersuasive defense of the operative
complaint as written. As drafted, it is an uncertain airing of
grievances and it fails for that reason. While a plaintiff can show
for the first time on appeal how a defective complaint can be fixed
by amendment, Nalbandian does next to nothing in that
respect—offering only passing, nonspecific assurances that the
document can be “clarified and tightened.” That is insufficient,
and we shall accordingly affirm the judgment of dismissal.
6
A
The Code of Civil Procedure permits a defendant to demur
to a complaint on the ground that it is uncertain, a term that
includes pleadings that are “ambiguous and unintelligible.”
(Code Civ. Proc., § 430.10; see also Code Civ. Proc., § 425.10,
subd. (a)(1) [a complaint must include a “statement of the facts
constituting the cause of action, in ordinary and concise
language”].) Demurrers for uncertainty are generally disfavored
(Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822) because
“under our liberal pleading rules, where the complaint contains
substantive factual allegations sufficiently apprising defendant of
the issues it is being asked to meet, a demurrer for uncertainty
should be overruled or plaintiff given leave to amend” (Williams
v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2,
italics added). Courts are accordingly obligated to look past the
form of a pleading to its substance. (Saunders v. Cariss (1990)
224 Cal.App.3d 905, 908.)
We look past the unusual format of the operative complaint
here and still see an uncertainty problem—one of ambiguity. The
operative complaint does not identify factual allegations and
correlate such allegations to a legal theory of liability. It is not
enough for a pleading to set out a disjointed narrative of events
divorced from grounds for liability and hope the court or opposing
party will do the work of connecting the dots (if there are dots)
between the two. It was therefore proper for the trial court to
sustain the demurrer on uncertainty grounds, and with
Nalbandian already having had five opportunities to craft an
adequate pleading and having failed to oppose the demurrer to
the operative complaint, to do so without again giving
Nalbandian another opportunity to attempt to remedy the
7
problem. (Ruinello v. Murray (1951) 36 Cal.2d 687, 690
[“Although the deficiencies in plaintiff’s complaints were raised in
defendant’s demurrers, after three attempts he has not overcome
them. The trial court could reasonably conclude that he was
unable to do so, and accordingly, it did not abuse its discretion in
sustaining the demurrer to the third amended complaint without
leave to amend”]; Johnson v. Ehrgott (1934) 1 Cal.2d 136, 138
[“[T]here must be a limit to the number of amended
complaints”].)
B
There is authority that a plaintiff who suffers dismissal
after a demurrer is sustained without leave to amend may make
a showing of how the pleading may be cured by amendment for
the first time on appeal. (See, e.g., Cansino v. Bank of America
(2014) 224 Cal.App.4th 1462, 1468.) This is done by submitting a
proposed amended complaint or enumerating the facts and
demonstrating how those facts establish a cause of action.
(Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
Nalbandian, in his opening brief, states the following
regarding the prospect of amendment: “Neither [Camden] nor
the trial court even attempted to address whether the amended
allegations, taken as true, state valid causes of action. While
[Nalbandian] maintains that they are for the reasons set forth
above, [Nalbandian] will move to move [sic] the Complaint to
provide still further clarity.” Nalbandian’s reply brief says little
more on the subject: “Since the appearance of co[u]nsel during
this appeal, [Camden] ha[s] been required to restructure [its]
arguments, and even abandoned their lead argument in this
appeal—CRC 2.111—after it was addressed by [Nalbandian’s]
8
counsel in the [o]pening brief. While [Nalbandian] continues to
maintain that the elements of valid claims are contained in the
[operative complaint], to the extent the complaint can be clarified
and tightened, [Nalbandian’s] counsel stands ready to do that.”
This is not enough to merit reversal for erroneous denial of
leave to amend. At most, Nalbandian’s appellate briefing is a
non-specific promise of a willingness to undertake further work to
amend the operative complaint, not a showing of how it would be
amended to resolve its ambiguity. After five prior iterations of
the complaint and a failure to oppose Camden’s demurrer in the
trial court, that is too little too late.
DISPOSITION
The judgment of dismissal is affirmed. Camden is awarded
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
9