Fowlkes v. Deutsche Bank CA2/8

Filed 8/5/14 Fowlkes v. Deutsche Bank CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

TREMAINE FOWLKES et al., B247298

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC484544) v.

DEUTSCHE BANK,

Defendant;

SHARK INVESTMENTS, LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge. Reversed.

Craig Cawlfield, under appointment by the Court of Appeal, for Plaintiffs and Appellants.

Law Offices of Stephen E. Abraham and Stephen E. Abraham for Defendant and Respondent.

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Tremaine Fowlkes and Virgil Forbin appeal from the trial court’s judgment sustaining the demurrer of their landlord Shark Investments, LLC, to their first amended complaint. Because we conclude the allegations of Fowlkes’ and Forbin’s first amended complaint were not fatally inconsistent with their original complaint’s allegations, the court erred in sustaining the demurrer on that ground. Therefore, we reverse and remand for further proceedings.

FACTS AND PROCEEDINGS

Because this appeal is from a demurrer, we recite the facts as stated in appellants’ complaint without judging their veracity. In November 2010, appellant Tremaine Fowlkes signed a three-year lease for a home on Rodgerton Drive in Los Angeles. In June 2011, Deutsche Bank National Trust, which is not a party to this appeal, took title to the house by non judicial foreclosure. The following month in July 2011, Deutsche and its agents began to intimidate and harass Fowlkes, by among other things, posting “No Trespassing” signs on the property and damaging door locks. In September 2011, appellant Virgil Forbin moved into the house as Fowlkes’s subtenant. (Forbin did not, however, enter into a written sublease until November 1, 2011.) On October 3, 2011, Deutsche’s agent entered the house without giving notice to appellants and damaged their personal property. Two days later on October 5, 2011, Deutsche sent appellants a “Notice of Belief of Abandonment of Occupancy.” To prevent additional intrusions into their home, appellants hired a private security guard for the premises. On November 5, 2011, defendants cut off water, gas, and electrical utilities to the house. As stated in their original complaint, appellants allege the utility cut-off left “the Property uninhabitable to Plaintiffs and forc[ed] their departure from the premises.” But in their first amended complaint—and this is the key point of dispute on appeal— appellants alleged the utility cut-off left “the Property uninhabitable to Plaintiffs and forc[ed] their temporary departure from the premises”—the word “temporary” being new to the amended allegation. According to appellants, after moving out of the house,