Judge: Andrew E. Cooper, Case: 23CHCV00672, Date: 2024-02-28 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV00672    Hearing Date: February 28, 2024    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer Filed: 10/13/23

Motion to Strike Filed: 10/16/23

MOVING PARTY: Defendants FML Management; and Lurline Gardens Limited Housing (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Kristen Wall (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendants demur to the first through fourth, and sixth through eleventh, causes of action in Plaintiff’s complaint. Defendants also seek an order striking Plaintiff’s references to punitive damages, attorney fees, statutory damages, restitution of rent, and civil penalties from the complaint.

TENTATIVE RULING: The demurrer is:

(1)   Overruled as to Plaintiff’s first, second, fourth, sixth, tenth, and eleventh causes of action;

(2)   Sustained with 30 days leave to amend as to Plaintiff’s third  and seventh cause of action; and

(3)   Sustained without leave to amend as to Plaintiff’s eighth and ninth causes of action.

The motion to strike is granted in part, with leave to amend.

Defendants are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Plaintiff is reminded that “all papers filed must be prepared using a font size not smaller than 12 points,” and that “each line number must be aligned with a line of type.” (CRC 2.108(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

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BACKGROUND 

This is a landlord-tenant action in which Plaintiff, a tenant in a rental unit located at 20800 Vintage Street, Unit 10, Chatsworth, California 91311, in a residential property owned and operated by Defendants. (Compl. ¶¶ 1, 4.) Plaintiff alleges that the subject property holds numerous habitability violations, “including deteriorated carpet posing safety and trip hazard, deteriorated bathtub with improper glazing, dysfunctional plumbing systems, deteriorated plumbing accessories, lack of operable heater and air conditioning, cockroach infestation, improper weatherproofing, lack of locks on windows, improper fire protection systems, and general state of deterioration and dilapidation of windows, doors, cabinets, frames, floors, walls, and ceilings.” (Id. at ¶ 22.)

On 3/8/23, Plaintiff filed her complaint against Defendants, alleging the following causes of action: (1) Violation of California Civil Code § 1942.4; (2) Tortious Breach of the Warranty of Habitability; (3) Private Nuisance; (4) Business and Professions Code § 17200 et seq.; (5) Negligence; (6) Breach of Covenant of Quiet Enjoyment; (7) Intentional Infliction of Emotional Distress; (8) Negligence Per Se; (9) Violation of Consumer Legal Remedies Act, California Civil Code § 1750 et seq.; (10) Violation of Los Angeles Municipal Tenant Anti-Harassment Ordinance; and (11) False Advertising, California Business & Professions Code § 17500 et seq.

On 10/13/23, Defendants filed the instant demurrer. On 10/16/23, Defendants filed the instant motion to strike. On 12/11/23, Plaintiff filed her oppositions. On 2/21/24, Defendants filed their replies.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) 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 the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendants demur to the first through fourth, and sixth through eleventh, causes of action in Plaintiff’s complaint on the bases that Plaintiff fails¿to allege facts sufficient to¿constitute those causes of action, thereby rendering the complaint fatally uncertain.

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A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Defendants’ counsel declares that on 9/1/21,[1] she and Plaintiff’s counsel met and conferred in an attempt to resolve the issues raised in the instant demurrer and motion to strike, but the parties were unable to come to a resolution. (Decl. of Mary Zharatanyan ¶ 3.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Violation of California Civil Code § 1942.4

Plaintiff’s first cause of action alleges against Defendants a Violation of Civil Code section 1942.4. Section 1942.4 provides a statutory cause of action against a landlord who demands or collects rent, issues a notice of rent increase, or issues a three-day notice to pay or quit pursuant to Code of Civil Procedure section 1161, subdivision (2), when the following conditions exist: (1) the dwelling does not satisfy the statutory conditions of habitability, safety, or maintenance; (2) a public officer has inspected the premises and has given written notice to the landlord of the duty to repair the substandard condition; (3) the conditions are not corrected within 35 days after the notice without good cause; and (4) the condition was not caused by the act or omission of the tenant. (Civ. Code § 1942.4, subd. (a) [emphasis added].)

Here, Defendants argue that this cause of action fails because “there are no facts alleged of the identity of the public officer giving the specific obligations to Defendants’ of the outcome of such inspections as set forth in Plaintiff’s Complaint, as well as a lack of facts as to substandard conditions.” (Dem. 3:28–4:2.) “Also, the Complaint fails to provide the necessary information to warrant the relief in this statute, including what specific violations Defendants were written up for, how notice of such written notice was provided, what the details of such notice were, time periods of compliance, all of which is necessary for Defendants to defend themselves against these allegations.” (Id. at 4:2–6.)

In opposition, Plaintiff argues that her first “cause of action provides that the City of Los Angeles housing inspectors provided written notice to the Defendants of the substandard conditions.” (Pl.’s Opp. 4:13–14, citing Compl. ¶¶ 62, 65, 67, 71, 72, 86.) In the cited portions of the complaint, Plaintiff alleges that on 12/21/21, the Los Angeles Housing Department inspected the premises and issued Defendants numerous citations relating to substandard carpeting, plumbing, air conditioning, heating, sanitation, “Without good cause, Defendants failed to abate or repair the conditions identified in one or more of the Notice and Orders to Comply within 35 days of receiving the notice, during which time the substandard conditions continued to exist without abatement.” (Compl. ¶ 88.)

Based on the foregoing allegations, the Court finds that at the demurrer stage, Plaintiff has alleged facts sufficient to constitute a cause of action for Violation of Civil Code section 1942.4. Accordingly, the demurrer against Plaintiff’s first cause of action is overruled.

C.    Tortious Breach of the Warranty of Habitability

Plaintiff’s second cause of action alleges against Defendants a Breach of the Implied Warranty of Habitability. “There is in California a common law implied warranty of habitability in residential leases, and … under this warranty a landlord ‘covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.’” (Knight v. Hallsthammar (1981) 29 Cal.3d 46, 52.) To establish a breach of the implied warranty of habitability, a plaintiff 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.)

Here, as a preliminary matter, Defendants argue that Plaintiff cannot allege a breach of a warranty implied in any purported lease agreement between the parties because “Plaintiff’s Complaint fails to include any contract between Plaintiff and Defendants.” (Dem. 4:14–15.) Defendants further argue that “Plaintiff’s Complaint lacks any facts indicating whether the effect on habitability of the defective conditions was not apparent upon reasonable inspection, nor contains any facts as the specificity of when notice was given to Defendants within a reasonable time after discovery.” (Id. at 5:20–23.)

Plaintiff argues in opposition that she has alleged the existence of a rental agreement between the parties throughout her complaint, and that “discovery will ascertain the lease agreement.” (Pl.’s Opp. 4:20.) The Court observes that Plaintiff has indeed alleged the existence of a lease agreement in her complaint. (Compl. ¶¶ 59, 104, 167.) Moreover, as Plaintiff notes, at the pleading stage, “‘a plaintiff may plead the legal effect of the contract rather than its precise language.’” (Pl.’s Opp. 3:23–25, quoting Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) Accordingly, the Court finds that Plaintiff has sufficiently alleged a lease agreement between the parties giving rise to an implied warranty of habitability.

As it pertains to the remaining elements of Plaintiff’s second cause of action, Plaintiff alleges in her complaint that the subject property contained the following untenantable conditions: “deteriorated carpet posing safety and trip hazard, deteriorated bathtub with improper glazing, dysfunctional plumbing systems, deteriorated plumbing accessories, lack of operable heater and air conditioning, cockroach infestation, improper weatherproofing, lack of locks on windows, improper fire protection systems, and general state of deterioration and dilapidation of windows, doors, cabinets, frames, floors, walls, and ceilings.” (Compl. ¶ 95.) As previously noted, Plaintiff also alleges that Defendants were cited about the defective conditions by the Los Angeles Housing Department on 12/21/21, yet failed to remedy the conditions within 35 days. (Id. at ¶¶ 62, 65, 67, 71, 72, 75, 88.)

Based on the foregoing allegations, the Court finds that at the demurrer stage, Plaintiff has alleged facts sufficient to constitute a cause of action for Breach of the Implied Warranty of Habitability. Accordingly, the demurrer against Plaintiff’s second cause of action is overruled.

D.    Private Nuisance

Plaintiff’s third cause of action alleges against Defendants Private 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.) 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.)

Here, Defendants argue that “Plaintiff’s nuisance claim is duplicative of her negligence claim,” because “both causes of action tenuously rely on the same factual predicate, being that Defendants’ alleged failure and/or refusal to prevent and/or repair the conditions alleged affecting Plaintiff’s unit at the Subject Property.” (Dem. 7:9, 7:21–23.)

In opposition, Plaintiff argues that “here, the negligence and private nuisance causes of action rely on some of the same facts about lack of due care; however, the negligence cause of action is premised on additional separate facts.” (Pl.’s Opp. 5:10–12 [emphasis in original].) “The causes of action rely on separate facts, with some overlap.” (Id. at 5:24.) Plaintiff elaborates that Defendants’ allegedly negligent conduct “encompasses their failure to make repairs for the conditions posing a nuisance, [and] it additionally incorporates and is based on the Defendants’ conduct in harassing the Plaintiff, refusing to accept their rent, attempting to influence the Plaintiff to vacate the Property wrongfully, engaging in a retaliatory eviction, and attempting to circumvent local rent control laws.” (Id. at 5:15–18.)

In comparing Plaintiff’s Private Nuisance and Negligence causes of action, as pled in the complaint, the Court observes that Plaintiff’s Nuisance cause of action mainly alleges that “Defendants’ failure to provide repairs, their refusal to comply with complaints and/or government citations, and their lack of urgency in providing repair created conditions, … were injurious to the Plaintiffs’ health and safety.” (Compl. ¶ 107.) Similarly, Plaintiff’s Negligence cause of action primarily alleges that “Defendants breached this duty [of care to Plaintiff] by failing to maintain the Property in question in a condition fit for human occupancy, and by failing to repair all subsequent dilapidations thereof.” (Id. at ¶ 130.) The Court finds no allegations in connection with Plaintiff’s negligence cause of action alleging “Defendants’ conduct in harassing the Plaintiff, refusing to accept their rent, attempting to influence the Plaintiff to vacate the Property wrongfully, engaging in a retaliatory eviction, and attempting to circumvent local rent control laws.” (Pl.’s Opp. 5:15–18.)

Based on the foregoing, the Court finds that Plaintiff’s nuisance cause of action relies on the same facts as her negligence cause of action. Accordingly, the demurrer to Plaintiff’s third cause of action is sustained.

E.     Business and Professions Code § 17200 et seq.

Plaintiff’s fourth cause of action alleges that Defendants violated Business and Professions Code section 17200 et seq. (the “UCL”). To set forth a claim for unfair business practices in violation of the UCL, a plaintiff must establish that the defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.)

“In essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.” (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) A plaintiff alleging an “unfair” business practice under the UCL must show that 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.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) “‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘are likely to be deceived.’” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.)

Here, Defendants argue that Plaintiff’s UCL claim fails because “Plaintiff fails to plead those statutory claims upon which the 17200 claim is based.” (Dem. 8:25–26.) Plaintiff argues in opposition that “Defendants engaged in unlawful behavior relating to the ownership and management of the Property. Paragraphs 3 through 196 describe with factual specificity an unlawful refusal to abate serious habitability violations which violated several statutes, including Civil Code section 1941.1 and Health and Safety Code section 17920.3, and several legal doctrines, including the warranty of habitability.” (Pl.’s Opp. 7:2–5.)

The Court agrees with Plaintiff, and finds that as Plaintiff has adequately pled Defendants’ violations of the relevant habitability laws, Plaintiff has likewise adequately pled that Defendants engaged in “unlawful” business practices in violation of the UCL. Accordingly, the demurrer against Plaintiff’s fourth cause of action is overruled.

F.     Breach of Covenant of Quiet Enjoyment

Plaintiff’s sixth cause of action alleges against Defendants a Breach of the Implied Covenant of Quiet Enjoyment. In every lease and rental agreement, the landlord impliedly covenants that the tenant will have the quiet possession and enjoyment of the premises during the lease term, except as otherwise provided in the lease. (Civ. Code § 1927.) 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. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588–591.)

The implied covenant of quiet enjoyment and possession is breached when there is a wrongful actual or constructive eviction of the tenant. (Standard Live Stock Co v. Pentz (1928) 204 Cal. 618, 625.) There is a constructive eviction when there is a substantial and material interference with the tenant’s beneficial use and enjoyment of the premises, even though the tenant is not actually deprived of occupancy. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 925–926, “A constructive eviction occurs when the acts or omissions … of a landlord, or any disturbance or interference with the tenant’s possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or which has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.”)

Here, Defendants argue that “Plaintiff fails to allege facts showing that any actual or constructive eviction of Plaintiff occurred as a result of the actions of Defendant.” (Dem. 10:4–5.) Based on the aforementioned allegations in Plaintiff’s complaint regarding the nature and extent of the untenantable conditions at the subject premises, and Defendants’ alleged failure to remedy them, the Court finds that Plaintiff has sufficiently alleged facts to support a constructive eviction resulting from the breach of the implied covenant of quiet enjoyment. Accordingly, the demurrer to Plaintiff’s sixth cause of action is overruled.

G.    Intentional Infliction of Emotional Distress

Plaintiff’s seventh 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.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant’s alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047–1048.)

Here, Defendants argue that “there are no factual assertions that Defendants did anything to deliberately cause Plaintiff emotional distress. Furthermore, Plaintiff’s grouping together all Defendants is not sufficient to advance a prayer for IIED.” (Dem. 11:11–13.) “The Complaint clearly fails to establish any type of intentional or despicable conduct targeted at causing Plaintiff severe emotional distress by Defendants, who, again, are corporate entities.” (Id. at 11:25–27.)

The Court agrees.  Not only are the allegations directed at corporate entities, they lack the specificity the law requires for this cause of action. 

Accordingly, the demurrer against Plaintiff’s seventh cause of action is sustained.

H.    Negligence Per Se

Plaintiff’s eighth cause of action alleges against Defendants Negligence Per Se. “The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218 [quotations omitted].) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555 [quotations and brackets omitted].)

Here, Defendants argue that the instant cause of action is not a separate tort, but relies on the same underlying facts as Plaintiff’s negligence cause of action. (Dem. 12:4.) In opposition, Plaintiff appears to agree that “the pleading of a Negligence Per Se cause of action should be read and understood to be an alternative theory of liability arising out of the same facts as the fifth cause of action for Negligence.” (Pl.’s Opp. 9:18–19.) “Despite the titling as negligence per se for the eighth cause of action, the cause of action is one for negligence, but one which is predicated on the alternative theory that the negligence arose from violation of statutes.” (Id. at 10:1–3.)

Based on the foregoing, the Court finds that Plaintiff’s Negligence Per Se cause of action is duplicative of her Negligence cause of action. Accordingly, the demurrer against Plaintiff’s eighth cause of action is sustained without leave to amend.

I.       Violation of Consumer Legal Remedies Act, California Civil Code § 1750 et seq.

Plaintiff’s ninth cause of action alleges that Defendants violated the Consumer Legal Remedies Act, Civil Code section 1750 et seq. (the “CLRA”). “The CLRA makes unlawful, in Civil Code section 1770, subdivision (a) … various unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer. … The CLRA proscribes 27 specific acts or practices.” (Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th 870, 880–881 [internal citations and quotations omitted].) At least 30 days before filing a suit seeking damages, plaintiff must send the potential defendant by mail a written notice of the alleged violations and demand correction. (Civ. Code § 1782.) Generally, “whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.’” (Brady v. Bayer Corp. (2018) 26 Cal.App.5th 1156, 1164.)

Here, Defendants argue that Plaintiff has not adequately pled that she provided Defendants with the statutorily required notice. “This cause of action contains no allegations of notices in writing, or whether such notices, if any, were sent by certified or registered mail.” (Dem. 13:9–11.)

Plaintiff argues in opposition that “Civil Code § 1782 provides that, ‘An action for injunctive relief brought under the specific provisions of Section 1770 may be commenced without compliance with subdivision (a),’ i.e. that an action for injunctive relief does not require a 30 day notice to the Defendant.” (Pl.’s Opp. 11:4–7.) While the Court observes that Civil Code section 1782, subdivision (d), does indeed provide an exception to the 30-day notice requirement, this exception applies only to complaints for injunctive relief. Here, in contrast, Plaintiff’s complaint seeks only money damages and not injunctive relief. Moreover, this exception requires that “not less than 30 days after the commencement of an action for injunctive relief, and after compliance with subdivision (a), the consumer may amend his or her complaint without leave of court to include a request for damages.” (Civ. Code § 1782, subd. (d).) Here, Plaintiff concedes in her opposition that she failed to provide Defendants with the requisite 30-day notice. (Pl.’s Opp. 11:7–8.)

Based on the foregoing, the Court finds that Plaintiff has not sufficiently alleged compliance with the 30-day notice requirement under Civil Code section 1782, nor could she. Accordingly, the demurrer against Plaintiff’s ninth cause of action is sustained without leave to amend.

J.      Violation of Los Angeles Municipal Tenant Anti-Harassment Ordinance

Plaintiff’s tenth cause of action alleges against Defendants a Violation of the Los Angeles Municipal Tenant Anti-Harassment Ordinance. The Los Angeles Municipal Tenant Anti-Harassment Ordinance, Chapter IV, Article 5.3, defines tenant harassment to include “failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws;” and “threatening to or engaging in any act or omission which interferes with the tenant's right to use and enjoy the rental unit or whereby the premises are rendered unfit for human habitation and occupancy.” (Los Angeles Mun. Code, § 45.33, subds. 2, 8.)

“An aggrieved tenant under this article, or any person, organization, or entity who will fairly and adequately represent the interests of an aggrieved tenant(s) under this article, may institute civil proceedings as provided by law, against any landlord violating any of the provisions of this article and any person who aids, facilitates, and/or incites another to violate the provisions of this article, regardless of whether the rental unit remains occupied or has been vacated due to harassment.” (Los Angeles Mun. Code, § 45.35, subd. A.) “A civil proceeding or small claims case initiated under this article alleging any violation of Section 45.33 … may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.” (Id. at subd. F.)

Here, Defendants argue that “Plaintiff has failed to plead specific facts showing that Plaintiff complied with Los Angeles Municipal Code Section 45.35(F) in providing facts of specific written notice of violations to support this cause of action.” (Dem. 14:4–6.) In opposition, Plaintiff argues that “Paragraph 183 of the complaint specifically provides that the government got involved, as a provided, supra, the City of Los Angeles issued several citations to the Defendants for their egregious violations related to the housing conditions therein. City of Los Angeles housing inspectors provided written notice to the Defendants of the substandard conditions.” (Pl.’s Opp. 10:11–15, citing Compl. ¶¶ 62, 65, 67, 71, 72, 86.)

Based on the foregoing allegations, the Court finds that at the demurrer stage, Plaintiff has sufficiently alleged notice to Defendants, and has therefore also alleged facts sufficient to constitute a cause of action Violation of the Los Angeles Municipal Tenant Anti-Harassment Ordinance. Accordingly, the demurrer against Plaintiff’s tenth cause of action is overruled.

K.    False Advertising, California Business & Professions Code § 17500 et seq.

Plaintiff’s eleventh cause of action alleges against Defendants False Advertising in violation of Business & Professions Code section 17500 (the “FAL”). The FAL prohibits public dissemination of any untrue or misleading advertising in connection with the disposal of any real or personal property or performance of services to consumers in the State of California. (Bus. & Prof. Code § 17500.) The false advertisement must be “such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 508.)

Here, Defendants argue that “Plaintiff has failed to differentiate all Defendants’ as to which false or misleading statement was made, whether there was an intent to make the public enter an obligation and, importantly, any facts alleged that Defendants were seeking to deceive consumers of ordinary intelligence.” (Dem. 14:18–21.)

The Court observes that in the complaint, Plaintiff alleges that “since in or around June of 2015, the Defendants have engaged in advertising to the public, including Plaintiffs, and offering the Property for lease and rent. By advertising the Property for rent to the public at large, the Defendants were stating, and representing, that the Property was in a condition suitable for tenancy.” (Compl. ¶ 191.) Plaintiff further alleges that “Defendants have engaged in the advertising herein alleged with the intent to directly or indirectly rent the substandard and untenantable property described herein, of which they failed to make repairs, and to rent the Property without providing the amenities and management as promised.” (Id. at ¶ 192.)

Based on the foregoing allegations, the Court finds that at the demurrer stage, Plaintiff has alleged facts sufficient to constitute a cause of action False Advertising. Accordingly, the demurrer against Plaintiff’s eleventh cause of action is overruled.

L.     Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

In applying the stringent standard for demurrers filed on this ground, the Court finds that Plaintiff’s complaint is not “so incomprehensible” that Defendants cannot respond to it, particularly where Defendants have offered substantive arguments in opposition thereto. Even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

MOTION TO STRIKE

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, subd. (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, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

A.    Punitive Damages

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Id. at subd. (c); Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

1.      Malice, Fraud, or Oppression

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

Here, Defendants argue that “Plaintiff’s allegations within the Complaint fail to show or set for any facts that Defendants (grouped together) could be found to have punitive damages imposed against them, let alone any acts of malice or oppression. Also, absent from the Complaint is any intent on behalf of Defendants (themselves corporate entities) to cause harm to Plaintiff.” (MTS 11:9–13.)

The Court finds that the complaint, as pled, insufficiently pleads a basis for punitive damages against Defendants based on malice or oppression.

Accordingly, the Court finds Plaintiff has not sufficiently alleged conduct that may be considered malicious and oppressive as defined by Civil Code section 3294.

2.      Employer Liability

“An employer shall not be liable for [punitive] damages … based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).)

Defendants argue that “Plaintiff’s Complaint only offers the conclusory allegation and characterization, parroting the language of the statute, of Defendants conduct, which is wholly insufficient to support punitive damages.” (MTS 13:14–16.) Defendants further argue that “Plaintiff’s Complaint fail to identify a single officer, director, or managing agent of Defendants who participated in, directed, authorized, or ratified any allegedly malicious, oppressive or fraudulent conduct.” (Id. at 13:17–19.)

Plaintiff does not address this issue in her opposition.  Based on the foregoing, the Court finds that at this stage, Plaintiff has insufficiently alleged that Defendants ratified/approved of the allegedly wrongful conduct by their agents/employees. Accordingly, the Court grants Defendants’ motion to strike portions of Plaintiff’s complaint referencing punitive damages.

B.     Attorney Fees

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, Plaintiff prays for “reasonable attorney fees, in the amount of $500.00 per hour, for those hours actually expended pursuant to California Code of Civil Procedure § 1021.5, California Civil Code § 1942.4, California Civil Code § l780(e), and California Civil Code § 3304.” (Compl. 62:1–3.) Plaintiff also seeks to recover attorney fees stemming from her tenth cause of action for Violation of the Los Angeles Municipal Tenant Anti-Harassment Ordinance. (Id. at ¶ 183.)

To the extent that Defendants contend that Plaintiff cannot recover attorney fees stemming from her first and tenth causes of action, the Court denies the motion to strike those portions from the Complaint, as it overrules the demurrer as to those causes of action.

With respect to Plaintiff’s prayer for attorney fees in connection with her CLRA claim, as the Court sustains Defendants’ demurrer to Plaintiff’s ninth cause of action without leave to amend, the motion to strike any related prayers for relief therefrom is moot.

C.    Statutory Damages, Restitution of Rent, Civil Penalties

Defendants further seek to strike Plaintiff’s prayer for statutory damages under Civil Code section 1942.2, restitution of rent monies under the UCL, and civil penalties under Los Angeles Municipal Code section 45.35. As the Court overrules the demurrer to these causes of action, the Court likewise denies Defendants’ motion to strike the prayers for relief stemming therefrom.

Based on the foregoing, the Court denies Defendants’ motion to strike.

LEAVE TO AMEND

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the first demurrer brought against Plaintiff’s original complaint. Therefore, under the Court’s liberal policy of granting leave to amend, Plaintiff is granted 30 days leave to amend the complaint to cure the defects set forth above, with the exception of her eighth and ninth causes of action. Plaintiff is cautioned that “following an order sustaining a demurrer … with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. … The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

CONCLUSION 

The demurrer is:

(1)   Overruled as to Plaintiff’s first, second, fourth, sixth, tenth, and eleventh causes of action;

(2)   Sustained with 30 days leave to amend as to Plaintiff’s third and seventh cause of action; and

(3)   Sustained without leave to amend as to Plaintiff’s eighth and ninth causes of action.

The motion to strike is granted in part, with leave to amend.