Judge: Andrew E. Cooper, Case: 24CHCV00725, Date: 2024-07-17 Tentative Ruling

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Case Number: 24CHCV00725    Hearing Date: July 17, 2024    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer and Motion to Strike Filed: 4/18/24

MOVING PARTY: Defendant Elden Elms, LP, a California Limited Partnership (“Defendant”)

RESPONDING PARTY: Plaintiffs Joshua Lombardo, an individual; and Michael D. Everett, an individual (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs against the sixth, eighth, and ninth causes of action in Plaintiffs’ complaint. Defendant also moves to strike references to punitive damages from Plaintiffs’ complaint.

TENTATIVE RULING: The unopposed demurrer is sustained, with 30 days leave to amend. The unopposed motion to strike is granted with 30 days leave to amend.

ANALYSIS

This is a landlord-tenant action in which Plaintiffs are tenants in a rental unit located at 1255 Elden Avenue, Los Angeles CA 90006, in a residential property owned and operated by Defendant. (Compl. ¶ 1.) Plaintiffs allege that the subject property holds numerous habitability violations, and “resulting in ongoing bed bug infestations at the Subject Property, Plaintiffs endured slum-type living conditions resulting in financial loss, property loss, personal injury and presently ongoing emotional distress.” (Id. at ¶ 3.)

On 3/7/23, Plaintiffs filed their complaint against Defendant, alleging the following causes of action: (1) Breach of Warranty of Habitability (Civil Code § 1941.1); (2) Breach of Warranty of Habitability (Health & Safety § 17920.3); (3) Breach of Warranty of Habitability (Civil Code § 1942.4); (4) Negligence; (5) Nuisance; (6) Intentional Infliction of Emotional Distress; (7) Breach of Contract; (8) Unfair Business Practices; and (9) Fraudulent Concealment.

On 4/18/24, Defendants filed the instant demurrer and motion to strike. No opposition has been filed to date.

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 sixth, eighth, and ninth causes of action in Plaintiffs’ complaint on the bases that Plaintiffs fail¿to allege facts sufficient to¿constitute those causes of action, thereby rendering them fatally uncertain.

A.    Meet and Confer

Defendant’s counsel declares that on 4/4/24, she sent Plaintiffs’ counsel a letter in an attempt to resolve the issues raised in the instant demurrer and motion to strike. (Decl. of Rochelle M. McKenzie ¶ 2.) On 4/16/24, counsel for the parties met and conferred telephonically, but were unable to come to a resolution. (Id. at ¶ 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.     Intentional Infliction of Emotional Distress

Plaintiffs’ sixth cause of action alleges Intentional Infliction of Emotional Distress against Defendant. “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, Plaintiffs allege that although they “notified Defendants of the bed bug infestations, Defendants knowingly, intentionally and willfully failed to abate the uninhabitable conditions (bed bug infestations), maintaining a company policy of apathy and/or denial. As such Plaintiffs were forced to live in uninhabitable conditions (bed bug infestations) for an extended period as a result of Defendants’ incessant failure to abide by their statutory duties to abate known uninhabitable conditions.” (Compl. ¶ 139.) “As a direct and proximate result thereof, Plaintiffs have endured and presently continue to endure many sleepless nights and much emotional and mental distress, coupled with other physical conditions associated with severe presently ongoing mental and emotional distress.” (Id. at ¶ 143.)

Defendant argues that Plaintiffs’ allegations do not rise to the requisite level of outrageousness to support a cause of action for intentional infliction of emotional distress because “Plaintiffs do not reference any specific practices or maintenance by Defendant that led to the habitability issues with the unit. In fact, the Plaintiffs resided in the unit for over 2 years without any bed bug complaints from March 2021 until April 2023 until the first issue arose.” (Dem. 4:6–9.) Defendant further argues that Plaintiffs have not sufficiently alleged severe emotional distress resulting from Defendant’s conduct. (Id. at 4:13–28, citing Wong v. Jing (2010) 189 Cal.App.4th 1354.)  The Court agrees and notes the Plaintiffs have failed to oppose this demurrer. 

Based on the foregoing, the demurrer against Plaintiffs’ sixth cause of action is sustained.

C.    Unfair Business Practices

Plaintiffs’ eighth cause of action alleges that Defendant 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, Plaintiffs allege that “Defendants’ failure to maintain the Subject Property and failure to abate known habitability violations while demanding rent constitutes an unlawful business practice. … Moreover, … the unlawful practices of the Defendants violated California Civil Code §§ 1941, 1941.1, 1942.4.” (Compl. ¶¶ 157–158.)

Defendant argues that “the allegations that Defendant failed to maintain the property and abate the habitability violations while demanding rent are insufficient to support a cause of action for unfair business practices. There are no specific allegations that this was a practice of the Defendant.” (Dem. 5:27–6:1.)

The Court once again, agrees and notes Plaintiff failed to oppose this demurrer. Accordingly, the demurrer against Plaintiffs’ eighth cause of action is overruled.

D.    Fraudulent Concealment

Plaintiffs’ ninth cause of action alleges Fraudulent Concealment against Defendant. “The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Fairness requires that allegations of fraud be pled “with particularity” so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement typically necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Here, Plaintiffs allege that prior to their April 2023 discovery of the bedbug infestation in their apartment, “Defendants knew of widespread bed bug infestations at the Subject Property and Plaintiffs’ Unit. However, Defendants intentionally withheld this information from Plaintiffs.” (Compl. ¶ 163.) Specifically, Plaintiffs allege that “Defendants knew that the Subject Property and Subject Unit was infested with bedbugs and that prospective tenants would incur significant physical injuries and severe emotional distress, along with property damage and economic losses, and therefore intentionally did not notify Plaintiffs so that they could ensure that the unit would be leased out by them.” (Id. at ¶ 168.) “Such knowledge was materially relevant to Plaintiffs and Defendants, as, had Plaintiffs known of the bedbugs within the unit, Plaintiffs would not have leased the Subject Property.” (Id. at ¶ 165.)

Defendant argues that Plaintiff fails to allege that Defendant owed them a duty to “disclose the presence of bed bugs in other units that are not leased to Plaintiffs.” (Dem. 7:14–15.) Defendant further argues that this cause of action is not pled with the requisite specificity because “Plaintiffs have failed to include any such facts about the specific representations made and at what point in time in the Complaint.” (Id. at 7:22–23.) The Court agrees, and again notes that Plaintiffs have failed to oppose the instant motion.

Based on the foregoing, the Court finds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for fraudulent concealment. Accordingly, the demurrer is sustained as to Plaintiffs’ ninth cause of action.

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.)

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, Defendant argues that punitive damages are not warranted because “Plaintiffs only claim inaction in the form of failing to abate bed bugs, which is not enough to support punitive damages.” (MTS 2:20–21.) Defendant contends that “Plaintiffs[’] Complaint merely alleges that Defendant failed to abate bed bugs. Nothing about the facts in the Complaint suggest any intentional let alone malicious behavior other than Plaintiffs[’] conclusory allegation, absent of specific notifications made, that Defendant failed to address the alleged bed bugs.” (Id. at 4:16–19.)

Once again, the Court notes Plaintiffs have failed to oppose the instant motion and grants the 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. 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 unopposed demurrer is sustained with 30 days leave to amend. The unopposed motion to strike is granted with 30 days leave to amend.