Judge: Anne Richardson, Case: 21STCV20276, Date: 2023-08-07 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV20276    Hearing Date: March 4, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiffs Marisela Vasquez, Anthony Ixta, Anabelle Ixta, Luna Vasquez, and Manuel Vasquez sue Defendants Pacific Urban Investors (Pacific) (erroneously sued as Haven Warner Center), FPI Management, Inc., Lisa Nguyen, Dennis Treadaway, Regina Jasinski, and Does 1 through 20 pursuant to an October 2, 2023 First Amended Complaint (FAC).

The FAC alleges claims of (1) Battery, (2) Negligence, (3) Intentional Infliction of Emotional Distress (IIED), (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, (8) Public Nuisance, and (9) Breach of Contract against all Defendants.

The claims arise from allegations that during their tenancy of the premises located at 6530 Independence Ave., Canoga Park, California 91303 (the Haven Warner Center), Unit 237 (Subject Premises), Plaintiffs for months suffered from a bed bug infestation, resulting in bites, injuries, and medical expenses to Plaintiffs, with Plaintiffs informing Defendants of the infestation, which Defendants failed to remedy.

Motion Before the Court

On November 3, 2023, FPI filed a demurrer challenging the Complaint’s claims as alleged against it.

That same day, FPI filed a motion to strike the FAC’s allegations and/or prayers for punitive damages, statutory damages, and attorney’s fees.

On February 20, 2024, Plaintiffs filed oppositions to the demurrer and motion to strike.

On February 26, 2024, FPI filed replies to the oppositions.

FPI’s demurrer and motion to strike are now before the Court.

Demurrer

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242 (Committee on Children’s Television).) Thus, “[t]o survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

I.

FAC, First Cause of Action, Battery: OVERRULED.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching. [Citations.]” (So v. Shin (2013) 212 Cal.App.4th 652, 669, as modified on denial of reh’g (Jan. 28, 2013).)

The FAC’s first cause of action alleges battery based on bed bugs in the Subject Premises biting Plaintiffs during their tenancy and based on Defendants failing to remedy the infestation despite knowledge thereof, thus acting with intent or reckless disregard of the likelihood that Plaintiffs would be bit by the bed bugs, and with authorization or ratification of this conduct by Defendants, essentially mirroring the allegations in the Complaint, to which the Court sustained a demurrer challenge on September 18, 2023. (Compare FAC, ¶¶ 13-40, 41-47, with Complaint, ¶¶ 16-34, 35-41; see FAC, ¶¶ 13-40 [incorporated background allegations].)

In its demurrer, FPI argues that the battery claim here is based on an alleged failure to act, which is inappropriate because, according to such cases as Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890 (Carlsen), battery requires an intentional act, and that even cases based on a “willful disregard” theory contain some affirmative action by the alleged actor, which is absent in the pleadings (citing FAC, ¶ 28 to highlight the defective allegations). FPI otherwise argues that the FAC detrimentally alleges that the Haven Warner Center’s Community Manager—Regina Jasinski—was notified of and attempted to rectify the bed bug infestation, undercutting reckless disregard (citing FAC, ¶ 24), and that allegations related to bed linens (citing FAC, ¶¶ 33-34) are inapplicable where the FAC does not allege that FPI had control of providing bed linens or controlling how the premises were furnished. (Demurrer, pp. 3-4.)

In opposition, Plaintiffs argue that Mathias v. Accor Econ. Lodging, Inc. (7th Cir. Ill. 2003) 347 F.3d 672 (Mathias) supports their battery claim based on the facts alleged in the FAC and a comparison to Mathias. Plaintiffs also argue that the FAC sufficiently alleges battery by citing to the duties owned by a landowner to others. Last, Plaintiffs add that the FAC properly alleges the intent to cause harmful or offensive contact or with reckless disregard of the probability of that contact by alleging the reckless failure to warn Plaintiffs of the dangerous bedbug infestation in her room, given Defendants’ prior knowledge of an infestation. Defendants’ intentional inaction is the operative element that caused the battery (citing FAC, ¶¶ 42-43), with lack of consent from Plaintiffs. (Opp’n, pp. 9-10.)

In reply, FPI argues that the opposition does little to rebut the moving paper’s battery arguments, namely as to intent and distinguishing Carlsen. FPI then undercuts Mathias on various grounds, and challenges the arguments advanced by Plaintiff relating to duties of care, arguing that breaches of those duties do not satisfy the intent element of battery. (Reply, p. 2.)

The Court finds in favor of Plaintiffs.

Battery does not require body-to-body contact, for which reason a person who throws a substance such as water upon the other is liable for battery. (Mount Vernon Fire Ins. Corp. v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881.) However, the pleadings here must allege that the Defendants, through their own conduct, caused bed bugs to bite the plaintiff, with the requisite intent to harm or offend the plaintiff. (See So v. Shin, supra, 212 Cal.App.4th at p. 669.)

The FAC alleges that “[d]uring Plaintiffs’ stay, Defendants, and DOES 1 through 20, inclusive, intentionally and recklessly caused the bed bugs to touch the Plaintiffs offensively and did acts that were unconsented to by Plaintiffs and therefore resulted in offensive contact with his person” and that “Defendants, and DOES 1 through 20, did the aforementioned acts with the intent to cause a harmful or offensive contact with the body of Plaintiffs.” (FAC, ¶¶ 42, 43.)

Upon further review of California authority, the Court determines that the FAC alleges intent by way of willful disregard of Plaintiffs’ rights.

A battery is ordinarily premised on the intent to harm or offend the victim. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 872; see, e.g., Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318 (Lopez) [affirming judgment compensating minor for personal injuries stemming assault and battery against the minor by his guardian ad litem, with liability premised on the natural and probable consequences of the physical act].)

However, standing California authority also holds that “[i]n an action for civil battery[,] the element of intent is satisfied if the evidence shows defendant acted with a ‘[wanton,] willful [, or reckless] disregard’ of the plaintiff’s rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 (Ashcraft), quoting Lopez, supra, 112 Cal.App.2d at p. 318.) In Ashcraft, the court of appeal determined that the intent element of battery was satisfied where a medical practitioner, without consent, willfully disregard the patient’s request to submit to operation on the condition that the medical practitioner use family-donated blood for the procedure, with the medical practitioner instead using the blood from the hospital’s general supply. (Ashcraft, supra, at p. 913.)

Here, the Court is satisfied that the FAC alleges a willful disregard of Plaintiffs’ housing and common law habitability rights by way of allegations that Plaintiffs informed Defendants of a bed bug infestation in the Subject Premises and that Defendants failed to eradicate the problem, amounting to intent for the purposes of battery as defined in Lopez and compared to Ashcraft. (FAC, ¶¶ 41 [incorporation], 42-43 [bed bug bites, no consent, willful disregard of bed bug infestation, reasonable person would be offended by the touch].) The actions are attributed to all Defendants. (FAC, ¶¶ 42-43.) And the FAC alleges, for example, a failure to eradicate the bed bug infestation (FAC, ¶ 42 [at (1)]), which implies notice of the infestation and either failure to take action or failure to take sufficient action to remedy that infestation, an ultimate fact of willful disregard of Plaintiffs’ rights against FPI.

The Court notes that the FAC does not allege FPI as the only property manager. (Compare FAC, ¶¶ 2-5 [only two paragraphs naming FPI], with FAC, ¶ 49 [Defendants are “owners, operators, and managers of the Subject Apartment”].) Nevertheless, a property manager would presumably have a modicum of authority over the Haven Warner Center and its premises, supporting a willful disregard of Plaintiffs’ rights by FPI under Lopez and compared to Ashcraft.

The Court also notes that intent appears not to be an applicable element for the civil tort of battery where the battery is committed during an unlawful act. (Lopez, supra, 112 Cal.App.2d at p. 318 [where battery was committed in the performance of an unlawful act, intent is immaterial insofar as the wrongdoer is liable for the natural and probable consequences of his or her actions].) Here, the FAC alleges willful failure to eradicate an uninhabitable condition in the Subject Premises as the owners, operators, and managers (in effect, landlord) over those premises, subject to common law and statutory protections for Plaintiffs as tenants, and harm to Plaintiffs as a result of nonaction. (FAC, ¶¶ 13-40; cf. FAC, ¶ 74 [tenancy relationship].)

In addition, the Court notes that even though FPI argues it did not take an affirmative act, Defendants are alleged, as a whole, as agents of one another, to have taken some measures to eradicate the problem (FAC, ¶ 24 [treatment in November 2019]) but then failed to implement the full measures required to eradicate the uninhabitable condition (FAC, ¶¶ 10 [agency], 29, 42 [at (1)] [failure to eradicate]), with harm to Plaintiffs as a natural and probable consequence of that failure (FAC, ¶¶ 45-46). This shows willful disregard and some affirmative act in the total course of conduct of failing to remedy the infestation.

Last, the Court notes that it is not bound by its September 18, 2023 reasoning on the battery claim. (See Vertex Inv. Co. v. Schwabacher (1943) 57 Cal.App.2d 406, 410 [A trial court’s first determination of a preliminary or interlocutory matter, e.g., an intermediate ruling on pleadings, is not res judicata; the judge who made the ruling may reverse himself or herself].)

FPI’s demurrer is thus OVERRULED as to the FAC’s first cause of action.

II.

FAC, Third Cause of Action, Intentional Infliction of Emotional Distress (IIED): OVERRULED.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

The FAC alleges IIED against all Defendants based on the failure to remedy the bed bug infestation after notice. (FAC, ¶¶ 66-72.)

Here, the Court adopts its discussion in Section I above to determine that the FAC sufficiently alleges a failure to eradicate a bed bug infestation after notice, which is sufficient extreme and outrageous conduct for IIED purposes.

For comparison, in Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922, the court held that a tenant had stated sufficient facts to allege a claim for intentional infliction of emotional distress in a sufficiently similar case. There, the tenant alleged a defendant’s knowing, intentional and willful failure to correct defective conditions of the premises. The conditions were not merely inconvenient, but unhealthy and unsafe: leaking of sewage, defective and dangerous electrical wiring, structural weaknesses in the wall, deteriorated flooring, falling ceiling, leaking roof, dilapidated doors, and broken windows. (Id. at p. 912.) In the face of such allegations, the Court said that whether these conditions met the standard of extreme and outrageous conduct sufficient for an IIED claim was a factual question for the trier of fact. (Id. at p. 922.) 

The FAC also pleads severe emotional distress and causation. (FAC, ¶¶ 44-46.)

While FPI argues that the claim is conclusorily alleged, for example, as to damages and claims of severe emotional distress (Demurrer, p. 5), the Court is satisfied with the damages allegations as ultimate facts for which evidentiary facts can be developed in discovery. (See Gossman v. Gossman (1942) 52 Cal.App.2d 184, 192 [ultimate facts distinguished from conclusions of law.)

FPI’s demurrer is thus OVERRULED as to the FAC’s third cause of action.

III.

FAC, Fourth Cause of Action, Breach of Implied Warranty of Habitability: OVERRULED.

The elements of an affirmative cause of action for breach of the implied warranty of habitability are (1) a material defective condition affecting the habitability of the premises, (2) notice to the landlord within a reasonable time after the tenant’s discovery of the substandard condition, (3) the landlord was given a reasonable time to remedy the condition, and (4) resulting damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297; Quevedo v. Braga (1977) 72 Cal.App.3d Supp. 1, 7-8, disapproved on other grounds in Knight v. Hallsthammar (1981) 28 Cal.3d 46, 55, fn. 7.)

Here, the Court adopts its discussion in Section I above to determine that the FAC sufficiently alleges a breach of the implied warranty of habitability based on:

(1) The tenancy relationship between Plaintiff and Defendants generally, all alleged as owners, operators, managers, and landlords of the Subject Premises (FAC, ¶¶ 49 [relationship], 73 [incorporation], 74 [tenancy relationship]);

(2) A materially defective condition of a bed beg infestation that Defendants were unable to remedy (FAC, ¶ 67 [bed bugs], 73 [incorporation]);

(3) Time to remedy (FAC, ¶¶ 20 [first notification to agent of Defendants], 24 [treatment in November 2019], 29 [failure to eradicate], 73 [incorporation], 90 [notice]); and

(4) Resulting damages (FAC, ¶¶ 81-82, 94-95).

While FPI argues that the FAC fails to allege a contract between itself and Plaintiffs (Demurrer, pp. 6-7), the Court is satisfied that the circumstances alleged through this cause of action allege a landlord relationship based on the FAC’s allegations of Defendants being “owners, operators, and managers of the Subject Apartment.” (FAC, ¶ 49.) It should be noted that the FAC elsewhere alleges a tenancy relationship. (FAC, ¶ 73.) Any evidentiary challenges by FPI must be made in an evidentiary motion, not a challenge to the pleadings.

Moreover, while FPI argues that Plaintiffs went past the leave to amend afforded by the Court on September 18, 2023 by making impermissible modifications to the FAC in paragraphs 74-77, 80, 82, 92-93, and 97, i.e., paragraphs outside of the battery and § 1942.4 claims at issue in that order (Demurrer, p. 6), the Court determines that these amendments were permissible because the amendments “directly respond” to the trial court’s reasoning in sustaining a demurrer at that time. (Cf. Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 [amendment of derivative action against corporation that failed on demurrer to declaratory relief claim in new pleading permitted where demurrer was sustained based on issues related to standing properly raised in the declaratory relief claim].)

The amendments were equally responsive to the battery claim—willful disregard of infestation and resulting harm in tenancy relationship between the parties and failure to eradicate—that was at issue in the September 18, 2023, order (9/18/23 Minutes, pp. 3-5), and simply restate the relationship between the parties and failure to eradicate the bed bug infestation in the Subject Premises. The Court thus accepts the amendments, which have been challenged in the papers, considered in any posted tentative, and can be challenged at oral argument. (See In re Harley C. (2019) 37 Cal.App.5th 494, 501 [“California courts retain the ability to manage the litigation before them by means of case-specific orders, provided that those orders are consistent with California law and afford litigants due process”].)

The Court also notes that the Complaint stated the breach of implied warranty of habitability claim against all Defendants as implied-in-fact landlords (Complaint, ¶ 68), an allegation repeated in the FAC (FAC, ¶ 74), making amendments to the allegations as to all Defendants proper based on those same allegations being equally directed at all Defendants from the inception of the pleadings. (Compare Complaint, ¶¶ 66-78, with FAC, ¶¶ 73-97.)

FPI’s demurrer is thus OVERRULED as to the FAC’s fourth cause of action.

IV.

FAC, Fifth Cause of Action, Breach of Covenant of Quiet Enjoyment: OVERRULED.

The implied covenant of quiet enjoyment implies a term in a contract, and breach of the covenant gives rise to an action in contract. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896.) The implied covenant of quiet enjoyment is breached when there is an eviction, actual or constructive, of the tenant. (Marchese v. Standard Realty & Dev. Co. (1977) 74 Cal.App.3d 142, 148.) Actual eviction occurs when there is an expulsion or ouster of the tenant by the landlord. (Giraud v. Milovich (1938) 29 Cal.App.2d 543.) Constructive eviction occurs when there is a substantial and material interference with the tenant’s beneficial use and enjoyment of the premises, causing the tenant to either vacate the premises (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903 (Stoiber)), or elect to stand upon the lease, remain in possession, and sue for breach of contract damages as well as injunctive relief (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590). Minor inconveniences and annoyances are not actionable. (Id. at pp. 589-90.)

Here, the Court adopts its discussion in Sections I-III above to determine that the FAC sufficiently alleges an implied breach of the covenant of quiet enjoyment claim against FPI (FAC, ¶¶ 98-105), as based on the landlord relationship alleged in the FAC (FAC, ¶¶ 74, 98), and Defendants impeding the beneficial use and enjoyment of the premises (FAC, ¶¶ 103-104; cf. FAC, ¶ 122 [Defendants “interfered substantially with Plaintiffs’ use and comfortable enjoyment of Plaintiffs’ Subject Apartment room”]), causing Plaintiff to remain in possession but sue for breach of contract damages and other relief (see FAC, ¶¶ 13-40 [incorporated background allegations], 98-105 [cause of action]).

The Court has already discussed and rejected the demurrer’s arguments against this claim. (See Section III discussion supra; see also Demurrer, pp. 5-6.)

FPI’s demurrer is thus OVERRULED as to the FAC’s fifth cause of action.

V.

FAC, Sixth Cause of Action, Violation of Civil Code Section 1942.4: OVERRULED.

“A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.”

(Civ. Code, § 1942.4, subds. (a)(1)-(4).)

After review, the Court agrees with Plaintiffs.

The FAC alleges that: “Plaintiff reported the uninhabitable conditions to the Los Angeles County Health Department [(LACHD)], who subsequently came to inspect the Subject Apartment. Here, the [LACHD] discovered bed bugs. Thereafter, the [LACHD] provided the Subject Apartment management with a notice to abate the bed bug infestation.” (FAC, ¶ 23; accord FAC, ¶ 112 [notice of the bed bug infestation by Plaintiffs and LACHD and failure to abate].) These allegations are sufficient ultimate facts as to notice by the County, where the County usually gives notice in writing, the FAC has apprised Defendants of the fact that they’ve received as “management” some form of notice from the LACHD, and evidentiary facts can be developed in discovery.

The FAC also alleges failure to abate. (FAC, ¶ 112.)

FPI’s demurrer is thus OVERRULED as to the FAC’s sixth cause of action.

VI.

FAC, Seventh Cause of Action, Private Nuisance: SUSTAINED, with leave to amend.

“A nuisance may be either a negligent or an intentional tort.” (Stoiber, supra, 101 Cal.App.3d at p. 920.) In order to state a claim for private nuisance, Plaintiff must allege a “disturbance of rights in land” by stating (1) “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, i.e., that it causes the plaintiff to suffer substantial actual damage,” and (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 (Mendez), brackets, emphasis, and quotation marks omitted.)

Here, the Court adopts its discussion in Sections I-V to find that the FAC facially alleges a private nuisance against Plaintiffs in the Subject Premises (FAC, ¶¶ 120-124) because the FAC alleges an interference with Plaintiffs’ use and enjoyment of the Subject Premises, which has caused actual damages in the form of at least physical injuries in the form of bug bites and emotional distress arising therefrom, and the substantial and unreasonable nature of a bed bug infestation that the alleged landlords have failed to remedy.

FPI’s demurrer arguments relating to impermissible amendments (Demurrer, p. 8) have been addressed and rejected above. (See Section III discussion supra.)

However, the Court agrees with FPI that the nuisance claim is duplicative of the unchallenged negligence claim stated in the FAC. (Compare FAC, ¶¶ 48-65, with FAC, ¶¶ 120-124.) “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, 1348-1349 (El Escorial).) The opposition fails to address El Escorial. (Opp’n, pp. 15-17.)

Here, because the negligence and nuisance claims rely on the same facts regarding lack of due care in eradicating the bed bug infestation in the Subject Premises (compare FAC, ¶¶ 48-65, with FAC, ¶¶ 120-124), the private nuisance claim is duplicative of the unchallenged second cause of action of negligence under the framework of El Escorial. A general demurrer for sufficiency may be sustained against duplicative claims. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135; see, e.g., Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [finding demurrer was properly sustained without leave to amend as to cause of action that contained allegations of other causes and “thus add[ed] nothing to the complaint by way of fact or theory of recovery”].) Here, the Court determines that, when compared to the FAC’s negligence claim, the private nuisance claim does nothing to add to the FAC by way of theory of recovery.

FPI’s demurrer is thus SUSTAINED as to the FAC’s seventh cause of action.

VII.

FAC, Eighth Cause of Action, Public Nuisance: OVERRULED.

“A nuisance may be either a negligent or an intentional tort.” (Stoiber, supra, 101 Cal.App.3d at p. 920.) In order to state a claim for public nuisance, Plaintiff must allege “an interference with the rights of the community at large.” (Mendez, supra, 3 Cal.App.5th at pp. 262-263, quotation omitted.) More specifically, “to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.’” (Id. at p. 262, quoting Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.)

Here, the Court adopts its discussion in Section VI above to determine that a facially valid nuisance claim is stated involving the use and enjoyment of the Subject Premises by Plaintiffs. (FAC, ¶¶ 120-124 [private nuisance claim], 125 [incorporation].)

Moreover, the FAC alleges a beg bug nuisance to the Haven Warner Center generally. (See, e.g., FAC, ¶¶ 28, 50(4), 67 [at (1)], 125.)

Thus, interference with the rights of the community at large in Haven Warner Center is alleged in the FAC.

Moreover, a public nuisance is different in nature than a negligence claim, which, as alleged in the FAC, involves damages to Plaintiff from Defendants’ misconduct or omissions relating to the Subject Premises and the bed bug infestation there, whereas the public nuisance involves the failure to remedy the same for the Haven Warner Center residents at large. For that reason, the Court’s grounds for sustaining the demurrer to the seventh cause of action pursuant to El Escorial, supra, 154 Cal.App.4th at pp. 1348-1349 are not applicable here.

FPI’s demurrer arguments relating to impermissible amendments (Demurrer, p. 9) have been addressed and rejected above. (See Section III discussion supra.)

Last, the Court disagrees that these allegations are conclusory (Demurrer, p. 9), for the reasons discussed above.

FPI’s demurrer is thus OVERRULED as to the FAC’s eighth cause of action.

VIII.

FAC, Ninth Cause of Action, Breach of Contract: OVERRULED.

“A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.) “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352, italics omitted.)

The Court adopts its discussion in Sections I, III-V, and VII to determine that a landlord-tenant relationship has been alleged between the parties, with an inferable express or implied contractual term to ensure habitable conditions, which was breached by Defendants through a failure to eradicate the bed bug infestation in the Premises, thus damaging Plaintiffs physically and emotionally. (FAC, ¶¶ 132-137; see FAC, ¶¶ 13-40.)

The Court notes that it has discussed and rejected the breach of contract demurrer arguments raised by FPI. (Demurrer, pp. 5-7; see Sections III-IV discussions supra; see also Section I discussion supra.)

FPI’s demurrer is thus OVERRULED as to the FAC’s ninth cause of action.

Motion to Strike

Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

The Court notes that any arguments relating to impermissible amendments have been addressed and rejected above. (See Section III Demurrer discussion supra.)

I.

Order Striking Punitive Damages: DENIED.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) 

When the defendant is a corporation, ‘[a]n award of punitive damages … must rest on the malice of the corporation’s employees’” specifically, “the oppression, fraud, or malice perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation,” where a managing agent “include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164, citations omitted.) 

The FAC seeks punitive damages in various claims and the prayer. (FAC, ¶¶ 47 [battery claim], 65 [negligence claim], 72 [IIED claim], 96-97 [breach of implied warranty of habitability claim], 105 [breach of covenant of quiet enjoyment claim], Prayer, ¶ 9 [punitive and exemplary damages].)

The Court adopts its discussion in Sections I and II of the Demurrer analysis above—battery and IIED—to determine that a willful failure to eradicate the bed bug infestation is alleged in the FAC, supporting an allegation of malice, and thus, of punitive damages pursuant to Civil Code section 3294.

While FPI argues that the allegations cited in Sections I and II of the Demurrer analysis are conclusory bases for punitive damages (Mot., p. 5), the Court disagrees as reasoned in Sections I and II of the Demurrer analysis.

Moreover, while FPI argues that the pleadings are not sufficiently alleged as to corporate knowledge or ratification (Mot., p. 6), the Court disagrees. The FAC alleges ratification (FAC, ¶¶ 33, 36, 39), and the standard for allegations relating to knowledge or ratification by a corporation can be subject to a lesser standard. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474 [“[L]ess particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff”].) This is the case here with FPI’s greater control of knowledge and information as to ratification of bed bug conditions in the Subject Premises or the Haven Warner Center at large.

FPI’s demurrer is thus DENIED as to striking punitive damages from the FAC.

II.

Order Striking Statutory Damages: DENIED.

The FAC seeks statutory fees based on Civil Code section 1942.4. (FAC, ¶ 119 [§ 1942.4 claim].)

The Court adopts its discussion in Section V of the Demurrer analysis above to determine that because the sixth cause of action survived on demurrer, damages premised on that claim are relevant to the FAC and are not a proper subject for motion to strike purposes. (Code Civ. Proc. § 436, subd. (a).)

FPI’s demurrer is thus DENIED as to striking statutory damages from the FAC.

III.

Order Striking Attorney’s Fees: DENIED in part; GRANTED in part.

 “With regard to an award of attorney fees in litigation, California generally follows what is commonly referred to as the ‘American Rule,’ which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. The American Rule is codified in Code of Civil Procedure section 1021, which states in relevant part: ‘Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties ….’”  (Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1142.) California law requires express authorization, by statute or contract, for an attorney fees award to the prevailing party. (Code Civ. Proc., § 1021.)

Moreover, when authorized by contract, statute or law, reasonable attorney fees are “allowable costs.” (Code Civ. Proc., § 1033.5, subd. (a)(10).) “Costs” can include items allowable as “attorneys’ fees” as a prevailing party, if allowable by statute or contract. (Heritage Engineering Const., Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1441-1442.)

The FAC seeks attorney’s fees based on Civil Code sections 51.9, 1940.35, and 1942.4, subdivision (b)(2). (FAC, ¶¶ 119 [§ 1942.4 claim], Prayer, ¶ 13 [Civ. Code, §§ 1940.35 and 51.9].)

Fees pursuant to section 1942.4 are proper because, as discussed above in Section II, the Civil Code section 1942.4 claim survived demurrer, making these fees relevant to the allegations in the FAC.

FPI’s motion is thus DENIED as to attorney’s fees pursuant to Civil Code section 1942.4. (See FAC, ¶ 119.)

Section 1940.35 contemplates retaliatory disclosure of immigration status to immigration, law enforcement authorities, or persons knowing the tenant, which is not alleged in the FAC. Neither does the opposition explain where the FAC alleges retaliatory disclosure of immigration status. The word “immigration,” or variations thereof, do not appear in the FAC.

 FPI’s motion is thus GRANTED as to attorney’s fees pursuant to Civil Code section 1940.35, with leave to amend. (See FAC, Prayer, ¶ 13.)

And while Civil Code section 51.9 contemplates a claim for sexual harassment and permits an award of damages against a defendant found liable under this statutory section (Civ. Code, §§ 51.9, subd. (b), 52, subd. (a)), the claims here arise from, at the most, battery via bed bug bites, not sexual harassment.

FPI’s motion is thus GRANTED as to attorney’s fees pursuant to Civil Code section 51.9, with leave to amend. (See FAC, Prayer, ¶ 13.)

Conclusion

I.

Defendant FPI Management, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED in part and SUSTAINED in part, as follows:

(1) OVERRULED as to the FAC’s first, third to sixth, and eighth to ninth causes of action; and

(2) SUSTAINED, with leave to amend, as to the FAC’s seventh cause of action.

II.

Defendant FPI Management, Inc.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED in part and GRANTED in part, as follows:

(1) DENIED as to striking punitive damages, statutory damages pursuant to Civil Code section 1942.4, and attorney’s fees pursuant to Civil Code sections 1942.4 from the FAC; and

(2) GRANTED, with leave to amend, as to striking attorney’s fees alleged pursuant to Civil Code sections 51.9 and 1940.35 from the FAC.

III.

Arguments not addressed in this ruling are not determinative of the Court’s disposition and were thus not discussed.

The orders relating to the negligence claim and to striking fees alleged in the FAC pursuant to Civil Code sections 51.9 and 1940.35 are applicable to all Defendants because (1) the private nuisance claim is duplicative of the negligence claim, which is stated equally against all Defendants under identical factual allegations, and (2) fees pursuant to Civil Code sections 51.9 and 1940.35 are equally defective as to all Defendants.