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

 

Defendants' Demurrer is overruled. The Motion to Strike is denied.

 

BACKGROUND

Plaintiff Jasmine Corello (Plaintiff) filed this action against Clinton Financial, LLC, and Ursuala Sabine Korman (Defendants), alleging uninhabitable condition of a property rented by Plaintiff and owned and managed by Defendants.

The causes of action are: (1) Statutory Breach of Warranty of Habitability (Civ. Code §§1941, 1941.1); (2) Tortious Breach of Implied Warranty of Habitability (3) Negligence; (4) Breach of Contract; (5) Nuisance; (6) Violation of the Los Angeles Rent Stabilization Ordinance; (7) Breach of Covenant of Quiet Enjoyment; (8) Breach of The Implied Covenant of Good Faith And Fair Dealing; (9) Intentional Infliction of Emotional Distress; (10) Violation of the Los Angeles Rent Stabilization Ordinance – Harassment; (11) Violation of Civil Code 1950.5; (12) Constructive Eviction; and (13) Violation of Civil Code 1942.5

Defendants filed a Demurrer with Motion to Strike. Plaintiff filed an Opposition.

 

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

Defendants demur to Plaintiff’s fifth cause of action for nuisance, arguing it fails to state a cause of action.

To establish an action for private nuisance, “[f]irst, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., that it causes the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest 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.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 263 (citations omitted) (internal quotation marks omitted). “The requirements of substantial damage and unreasonableness are not inconsequential. … Both elements are to be judged by an objective standard.” Ibid. “[T]he elements of substantial damage and unreasonableness necessary to making out a claim of private nuisance are questions of fact that are determined by considering all of the circumstances of the case.” Id. at pp. 263-264

Defendants argue that the nuisance claim fails to state a claim because it is duplicative of the negligence claim.

 In El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 (El Escorial), the court held “[w]here negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” There, the nuisance cause of action consisted of five one-sentence paragraphs that incorporated the allegations from the negligence cause of action and cited the broad statutory definition of nuisance. Ibid.

The Court of Appeal recently criticized El Escorial in Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181 (Lynch), in which the panel reversed a trial court’s grant of summary judgment. The court held, “[n]uisance is an entirely separate cause of action from negligence, and the analysis should focus on whether the plaintiff has alleged all necessary elements of the claim…. Even if the nuisance claim relies on the same facts about lack of due care supporting the negligence claim, it does not mean the claims are identical or duplicative. Indeed, many pleadings allege numerous causes of action based on the same facts. This does not mean the causes of action are all the same.” Lynch, 104 Cal.App.5th at p. 1198.

The Court agrees with the Lynch decision and declines to follow the reasoning in El Escorial. Accordingly, the demurrer to the nuisance cause of action is overruled.

MOTION TO STRIKE

Defendants argue that Plaintiff fails to allege sufficient facts to support her punitive and exemplary damages claims.

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. College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 (College Hospital Inc.). These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. Civ. Code § 3294, subd. (a).

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. (citations omitted). “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (fn. omitted) (citations omitted).

A tenant’s habitability action against the owners for failure to remedy slum living conditions may be sufficient to support a claim for punitive damages. See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921 (failure to correct defective living conditions sufficient for punitive damages claim; Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1046 (affirming general, special, and punitive damages jury award for breach of the warranty of habitability, nuisance, and other torts). Punitive damages may be assessed against an employer where the employer authorized or ratified a malicious act. College Hospital Inc., supra,8 Cal.4th at. p 723.

Plaintiffs pleaded sufficient facts to support their prayer for punitive damages. They allege that Defendants had actual knowledge of defective conditions in the premises, including carbon monoxide issues, “a lack of/inadequate heat, missing/broken mailbox, missing/broken smoke detectors, common areas unclean, inadequate plumbing, inadequate repairs, [and] redtag by Southern California Gas.” Comp. ¶¶ 21, 22. Plaintiffs specifically allege that he provided actual and written notice to Defendants, but they failed to make adequate repairs. Compl. ¶¶ 23, 24, 27. Accordingly, the Court denies the motion to strike punitive damages.

 

CONCLUSION

Defendants’ Demurrer is overruled. The Motion to Strike is denied.