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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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,                                                             B241645

         Plaintiff and Appellant,                                          (Los Angeles County
                                                                           Super. Ct. No. TC024502)
         v.

218 PROPERTIES, LLC, et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles 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 summary judgment for defendants 218 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 declaratory and injunctive relief, 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.

                  FACTUAL AND PROCEDURAL BACKGROUND

       1.     The Sale of Plaintiff’s Mobile Home

       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


                                              2
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.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




1
       Plaintiff‟s index selectively represents the record to the court. It is the
appellant‟s burden to provide an adequate record on appeal. (Amato v. Mercury
Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.) To the extent the record is
inadequate, we make all reasonable inferences in favor of the judgment. (Ibid.)

                                             3
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.


                                              4
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


                                             5
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.


                                             6
       Plaintiff filed a timely notice of appeal.

                                      DISCUSSION

       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. (Linear Technology Corp. v. Applied 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. (Quiroz v. Seventh Ave.

Center (2006) 140 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.]” (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.


                                              7
       3.      Retaliation Cause of Action

       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 1942.5.2 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.


2
      Civil Code section 1942.5 applies to plaintiff in her capacity as a former tenant
of Granada Park.

                                               8
       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.” (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


                                             9
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.” (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.


                                            10
       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,”

(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;” (4) “negligent


                                            11
interference with economic relations is established” 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.”

       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.3

Therefore, plaintiff has failed to show that summary judgment was improper and we

need not address the select arguments she does raise.




3
       Plaintiff made a motion for relief from default “as to the issue of compliance
with Separate Statement requirements” which we have denied. Plaintiff‟s attempt to
address this issue for the first time in her reply is also inadequate. (Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 764 [“ „[p]oints raised for the first time in a reply
brief will ordinarily not be considered, because such consideration would deprive the
respondent of an opportunity to counter the argument.‟ [Citation.]”].)

                                            12
                                 DISPOSITION

    The judgment is affirmed. The defendants shall recover their costs on appeal.



    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                          CROSKEY, Acting P. J.



WE CONCUR:




    KITCHING, J.




    ALDRICH, J.




                                       13
