Judge: Andrew E. Cooper, Case: 20STCV05359, Date: 2023-08-23 Tentative Ruling

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Case Number: 20STCV05359    Hearing Date: April 11, 2024    Dept: F51

DEMURRER

Demurrer Filed: 11/3/23

MOVING PARTY: Defendant FPI Management, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs Katrin Silvestro and Jorge A. Rodriguez (collectively, “Plaintiffs”) 

NOTICE: OK 

RELIEF REQUESTED: Moving Defendant demurs to the third, fourth, fifth, seventh and eighth causes of action in Plaintiffs’ second amended complaint (“SAC”).

TENTATIVE RULING: The demurrer is overruled as to Plaintiffs’ third cause of action, and sustained as to the fourth, fifth, seventh and eighth causes of action without leave to amend. Moving Defendant to file an answer to Plaintiff’s SAC, as modified, within 30 days.

BACKGROUND 

Plaintiffs bring this action alleging personal injury and monetary damages arising from bedbug bites they sustained in February 2018 while residing at an apartment complex owned and operated by Defendants. Moving Defendant is the managing corporation of the apartment complex.

On 2/10/20, Plaintiffs filed their original complaint against Defendants, alleging the following causes of action: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Breach of Implied Warranty of Habitability; (5) Breach of Covenant of Quiet Enjoyment; (6) Violation of Civil Code Section 1942.4; (7) Private Nuisance; and (8) Public Nuisance.

On 4/13/23, after the Court partially sustained Moving Defendant’s demurrer to Plaintiffs’ original complaint, Plaintiffs filed their FAC, alleging against Defendants the same eight causes of action. On 10/2/23, after the Court partially sustained Moving Defendant’s demurrer to Plaintiffs’ first amended complaint (“FAC”), Plaintiffs filed their SAC, alleging against Defendants the same eight causes of action.

On 11/3/23, Moving Defendant filed the instant demurrer. On 3/28/24, Plaintiffs filed their opposition. On 4/4/24, Moving Defendant filed its reply.

ANALYSIS

Moving Defendant demurs to demurs to Plaintiffs’ third, fourth, and fifth causes of action for failure to state a cause of action, and to the seventh and eighth causes of action as duplicative of the Negligence cause of action.

A.    Meet and Confer

Moving Defendant’s counsel declares that on 10/18/23, and 10/26/23, she telephoned Plaintiffs’ counsel in attempts to meet and confer regarding the issues raised in the instant demurrer, but did not receive a response. (Decl. of Jizell K. Lopez, ¶¶ 4–5.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Intentional Infliction of Emotional Distress

Plaintiffs’ third cause of action alleges against Defendants intentional infliction of emotional distress. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

Here, Moving Defendant argues that “there are no allegations to support the claim that either of the two Plaintiffs suffered from severe emotional distress. As there are no allegations even describing emotional distress, there is no way for the Court to determine if severe emotional distress has been properly pleaded.” (Dem. 4:8–10.)

The Court notes that it has already previously found that Plaintiffs successfully alleged facts sufficient to constitute a cause of action for Intentional Infliction of Emotional Distress. (8/23/23 Min. Order, p. 3.) Accordingly, the demurrer is overruled as to Plaintiffs’ third cause of action.

C.    Breach of Implied Warranty of Habitability; Breach of Implied Covenant of Quiet Enjoyment

Plaintiffs’ fourth and fifth causes of action respectively allege against Defendants Breach of Implied Warranty of Habitability, and Breach of Implied Covenant of Quiet Enjoyment.

To establish a breach of the implied warranty of habitability, Plaintiffs must establish (1) “the existence of a material defective condition affecting the premises’ habitability,” (2) “notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,” (3) “the landlord was given a reasonable time to correct the deficiency, and” (4) “resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

The elements of a claim for breach of the covenant of quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which “substantially interfere[s] with a tenant[’]s right to use and enjoy the premises for the purposes contemplated by the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)

In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, the Court of Appeal found that a landlord’s agents could not be held liable in a contractual cause of action. “Although the agent defendants may not be held liable under the implied warranty theory, causes of action may be stated against them in tort. Since the suit for breach of the implied warranty is essentially a contractual one, the trial court correctly ruled the agents could not be held liable on the breach of warranty because an agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal.” (Stoiber, 101 Cal.App.3d at 929.)

Here, Moving Defendant again demurs against Plaintiffs’ fourth and fifth causes of action on the basis that it is not a party to the lease agreement, but a “designated agent for a disclosed principal,” and argues that these contractual causes of action must therefore fail for lack of privity between the parties. (Dem. 4:27.) In opposition, Plaintiffs note that they have now attached the lease agreement between the parties to their complaint, along with the added allegation that Moving Defendant is a party to the lease. (SAC ¶¶ 100–101.) However, as the attached lease agreement explicitly states, Moving Defendant signed the agreement “on behalf of, and as designated agent for, Owner.” (Ex. A to SAC, pp. 23–24, 26–29, 31–33, 35, 37, 39–40.)

Based on the foregoing, the Court applies the Court of Appeal’s reasoning in Stoiber to find that Plaintiffs cannot maintain liability against Moving Defendant for their contractual causes of action for Breach of Implied Warranty of Habitability and Breach of Implied Covenant of Quiet Enjoyment. Accordingly, the demurrer to Plaintiffs’ fourth and fifth causes of action is sustained without leave to amend.

D.    Private Nuisance; Public Nuisance

Plaintiffs’ seventh and eighth causes of action respectively allege against Defendants Private Nuisance and Public Nuisance.

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it 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, 262–263.)

Public nuisances are “substantial and unreasonable” “offenses against, or interferences with, the exercise of rights common to the public.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) However, “where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owner’s Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

In the SAC, Plaintiffs again maintain that the bedbug infestation “negligently and intentionally” caused by Defendants constitutes both a private and public nuisance. (SAC ¶¶ 125, 131.) The underlying factual allegations, namely that Defendants failed to maintain the health and safety of the premises, are again the same in Plaintiffs’ second cause of action for Negligence. (Id. at ¶ 47.)

Moving Defendant again argues that “Plaintiffs here again have failed to demonstrate how the nuisance claim is different from the negligence claim,” and therefore, under El Escorial, the nuisance causes of action must fail because they are duplicative of Plaintiffs’ second cause of action for Negligence. (Dem. 5:22–23;154 Cal.App.4th at 1349.) In opposition, Plaintiffs argue that “the causes of action in question are a different form of negligence. The torts of negligence frequently coexist. They are not strictly duplicative and any duplication can be dealt with in a verdict form at trial.” (Pls.’ Opp. 15:4–6.) However, the Court notes that Plaintiffs do not cite to any legal authority to support these contentions.

Based on the foregoing, the Court finds that Plaintiffs’ causes of action for Private Nuisance and Public Nuisance rely on the same underlying factual allegations, and therefore are duplicative of, Plaintiffs’ Negligence cause of action. Accordingly, as Plaintiffs have failed to cure the defects set forth in the Court’s previous ruling, the demurrer is sustained as to Plaintiffs’ seventh and eighth causes of action without leave to amend.

CONCLUSION 

The demurrer is overruled as to Plaintiffs’ third cause of action, and sustained as to the fourth, fifth, seventh and eighth causes of action without leave to amend. Moving Defendant to file an answer to Plaintiff’s SAC, as modified, within 30 days.