NATURE OF PROCEEDINGS: Hearing on Dever's Demurrer with Motion to Strike

 

Dever's Demurrer is sustained, and its Motion to Strike is granted.

 

BACKGROUND

Plaintiffs Phillips Percy Ronald Tubbs filed this action against Asbury Apartments Winstar Properties, Inc., Barker Management, Inc., Sandra Washington, Asbury Apartments, L.P. (collectively “Landlord Defendants”), and Dever Pest Control, Inc. (Dever), alleging defendants failed to eradicate a bed bug infestation in Plaintiffs’ apartment.

In a February 18, 2025, Minute Order, the Court granted Dever’s Motion to Strike punitive damages from the Complaint with leave to amend. Plaintiffs’ subsequently filed a First Amended Complaint (FAC).

The causes of action in the FAC are: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Statutory Breach of Warranty of Habitability (Civil Code §§1941 and 1941.1); (5) Tortious Breach of Implied Warranty of Habitability; (6) Violation of Business & Professions Code §17200 et seq.; (7) Breach of Covenant of Quiet Enjoyment; (8) Violation of Civil Code §1942.3; (9) Violation of Civil Code §1942.4; (10) Negligent Violation of Statutory Duty to Maintain Habitable Conditions; (11) Breach of Contract; (12) Private Nuisance; and (13) Public Nuisance.

Dever filed a Demurrer with Motion to Strike. Plaintiffs filed Oppositions and voluntarily dismissed their causes of action for Violation of Civil Code Section 1942.3 and Violation of Civil Code Section 1942.4.

LEGAL STANDARD

When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, courts assume the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.

Further, the court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. Id. § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id. § 437.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”). The burden is on the complainant to show the Court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

DEMURRER

Dever demurs to causes of action four through eleven and thirteen.

I. Landlord-Tenant Relationship

Dever argues that Plaintiffs’ causes of action for statutory breach of warranty and habitability, tortious breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, and negligent violation of the statutory duty to maintain habitable conditions require the existence of a landlord-tenant relationship.

Plaintiffs argue that because Dever is an agent of the Landlord Defendants, Plaintiffs “are therefore entitled to allege claims against [Dever] to the same extent they are entitled to allege such a claim against the landlord.” Opp. at p. 7: 20-22.

The Court notes that Plaintiffs’ argument is essentially identical to the one the Court previously rejected in its February 18, 2025, Minute Order, ruling on Dever’s Motion to Strike punitive damages from the original Complaint.

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency…. [A]n agent is liable for his or her own torts, whether the principal is liable or not, and in spite of the fact that the agent acted in accordance with the principal's directions….[However] in contrast to the vicarious liability of principals, agents are not vicariously liable for the torts of their principals.” Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 692 (citations omitted).

Plaintiffs quote Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929 (Stoiber), which held “since appellant can plead a cause of action in negligence against the landlord, such a cause of action could also be pleaded against the agent defendants.” Opp. at p. 7:25-27. However, the facts of Stoiber are inapposite. In Stoiber, the court held that “a rental agent managing the premises for the owner has a duty towards the tenant by virtue of that relationship.” Stoiber, supra, 101 Cal.App.3d at p. 930. In reaching that conclusion, the court observed that “the fact that an agent owes a duty to his principal does not preclude him from also owing a duty to third parties foreseeably injured by his conduct.” Ibid. Therefore, in Stoiber, the managing agents were directly liable for their own tortious acts, according to general agency principles.

Here, unlike Stoiber, Dever is not a managing agent, generally responsible for the property, but an exterminator. As alleged in the FAC, Dever was only directed to treat the bedbug infestation in December 2021. FAC ¶ 26. Therefore, Dever is liable for a narrower range of conduct than the landlord defendants. Because Dever was not a landlord or property manager, it is not liable for habitability or quiet enjoyment violations. In fact, Plaintiffs concede that their causes of action for statutory breach of warranty of habitability, tortious breach of implied warranty of habitability, and breach of the covenant of quiet enjoyment do not apply to Dever. Opp. at p. 8:7-11.

However, they argue that Dever is liable for negligent violation of a statutory duty to maintain habitable conditions. However, they fail to point out the statutory duty of an exterminator. Their arguments all concern ordinary negligence, which they plead as a separate cause of action, that Dever does not demur to.

Accordingly, the Court sustains Dever’s demurrer to causes of action four, five, seven, and ten without leave to amend.

II. Business and Professions Code §17200 et seq.

Dever argues that FAC fails to state a cause of action for breach of the Unfair Competition Law (UCL), Business and Professions Code §17200 et seq.

“Unfair competition under the UCL includes ‘any unlawful, unfair or fraudulent business act or practice.’” Jackson v. Lara (2024) 100 Cal.App.5th 337, 346 (quoting Bus. & Prof. Code, § 17200). “[A] plaintiff alleging an unfair business practice must show the defendant’s conduct is tethered to an[] underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law, or violates the policy or spirit of an antitrust law.” Id. at p. 347 (citations omitted) (internal quotation marks omitted). “An ‘unlawful’ business activity includes ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’” Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal.App.4th 700, 717-718 (2001). Section 17200 “borrows” from violations of other laws and “treats them as ‘unlawful’ practices independently actionable under the unfair competition law.” Id. at 718.

“A plaintiff alleging unfair business practice under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” Khoury v. Maly’s of California, Inc. 14 Cal.App.4th 612, 619 (1993).

To establish standing under the UCL, a plaintiff must (1) establish a loss or deprivation of money sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice that is the gravamen of the claim. See Kwikset Corp. v. Superior Court (Benson) (2011) 51 Cal. 4th 310, 337.

The FAC pleads the UCL violations in a conclusory fashion, and fails to identify what acts Dever took that constituted an unlawful, unfair, or fraudulent business practice. The only statutory violation cited in the FAC is Civil Code § 1941, which Plaintiffs concede does not apply to Dever. The Opposition is likewise devoid of any specific allegations and merely parrots conclusory allegations from the FAC. Opp. at p. 8:17-9:3. Accordingly, the demurrer to the sixth cause of action is sustained with leave to amend.

III. Breach of Contract

Dever argues that the FAC fails to plead the existence of a contract between Plaintiffs and Dever.

“The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 (citing Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830).

To properly plead breach of contract, “[i]f the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 459. Alternatively, “in an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal. 4th 189, 198-199. 189, 198-199. “‘In order to plead a contract by its legal effect, plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.”’” Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993 (quoting McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489) (citations omitted).

It is grounds for a demurrer where “[i]n an action founded upon a contract, cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” Code Civ. Proc., § 430.10, subd. (g).

Plaintiff does not attach a copy of the contract to the FAC, but instead pleads the existence of a lease agreement “entered into when Plaintiffs moved into the Property.” FAC ¶ 100. Plaintiffs allege they moved into the property on November 8, 2021. FAC ¶ 17. Yet, they don’t allege any involvement from Dever until December 2021, when Sandra Washington brought in Dever for pest control. FAC ¶ 21.

Based on these allegations, the Court concludes that Dever was not a party to the lease, and Plaintiffs were not a party to a contract for pest control services. Accordingly, the demurrer to the eleventh cause of action is sustained with leave to amend.

IV. Public Nuisance

Dever argues Plaintiffs fail to allege facts supporting a claim for public nuisance.

A public nuisance is a nuisance that simultaneously affects some other larger group of individuals. Civ. Code, § 3480. The necessary elements for public nuisance are: (1) defendant created or permitted a condition to exist that was harmful to health, (2) that condition affected a substantial number of people at the same time, (3) an ordinary person would be reasonably annoyed or disturbed by the condition, (4) the seriousness of the harm outweighs the social utility of defendant’s conduct, (5) that plaintiff suffered harm that was different from the type of harm suffered by the general public, (6) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 2020.

Plaintiffs fail to allege that the conduct affected a substantial number of people at the same time. Plaintiffs do not address this cause of action in their Opposition, which the Court interprets as a recognition that the claim lacks merit. Accordingly, the demurrer to the thirteenth cause of action is sustained without leave to amend.

 

MOTION TO STRIKE

Dever moves to strike punitive damages.

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. Civ. Code § 3294, subd. (a). “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.

A claim for punitive damages may not be based on conclusory allegations of oppression, fraud, or malice but instead must be based on factual allegations that support such a conclusion. See Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive damages because “[t]he sole basis for seeking punitive damages are … conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”).

A negligence claim generally will not support a claim for punitive damages, as negligence is an unintentional tort, and a negligent party has no desire to cause the harm that results from its conduct, differing from a party who has engaged in willful misconduct and intended to cause harm. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167. Allegations of negligence where injuries might occur but are not probable do not support punitive damages claims. McDonell v American Trust Co. (1955) 130 Cal.App.2d 296, 300; see also Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 12 (evidence of negligence insufficient to show that defendant knew or must have known of the danger).

For nonintentional torts, punitive damages may be assessed “when the conduct constitutes conscious disregard of the rights or safety of others.” Peterson v. Superior Court (1982) 31 Cal.3d 147, 158; “[A] conscious disregard of the safety of others may [thus] constitute malice within the meaning of section 3294 of the Civil Code. To justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.’” Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 402, (quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 (Taylor). To establish malice, “it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b). Managing agents are “corporate employees who exercise substantial independent authority and judgment in their corporate [decision-making] so that their decisions ultimately determine corporate policy.” White v. Ultramar (1999) 21 Cal.4th 563, 566-67.

In their Opposition, Plaintiff repeats the same flawed agency liability theory that the Court rejected in ruling on Dever’s previous Motion to Strike. Opp. at p. 6:3-16. As an agent of the Landlord Defendants, Dever is not liable for any acts of malice, fraud, or oppression that the Landlord Defendants may have committed. Dever is only liable for acts it perpetrated, authorized, or ratified.

The FAC is devoid of any allegations that any Dever officer, director, or managing agent authorized or ratified its employees to perform a knowingly ineffective bed bug treatment. Accordingly, the Motion to Strike is granted with leave to amend.

 

CONCLUSION

Dever's Demurrer is sustained as to causes of action four through eleven and thirteen. Leave to amend is granted as to causes of action six, eleven, and thirteen. Dever’s Motion to Strike is granted with leave to amend. Plaintiffs have twenty days leave to amend.