Judge: Anne Richardson, Case: 23STCV06266, Date: 2023-10-05 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: 23STCV06266    Hearing Date: October 5, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleading

Plaintiff Samantha Gerlach sues Defendant Brett Hazard and Does 1 through 50 pursuant to a March 21, 2023 Complaint alleging claims of (1) Breach of The Common Law Duty of Care [Negligence, Negligent Infliction of Emotional Distress], (2) Breach of the Covenant of Quiet Enjoyment in Violation of Cal. Civ. Code § 1942.5, (3) Breach of the Covenant of Quiet Enjoyment in Violation of Cal. Civ. Code § 1940.2, (4) Violation of the Tenant Anti-Harassment Ordinance, L.A.M.C. Art. 5.3, and (5) Unfair and Unlawful Business Practices in Violation of California Business & Professions Code § 17200, et seq.

The claims arise from allegations that Plaintiff Gerlach first rented the property at 1214 N Evergreen Avenue, Los Angeles, California 90033 from a predecessor in interest of Defendant Brett Hazard and that since taking ownership of the Property, Defendant Hazard has engaged in a pattern and practice of unlawful behavior that not only caused or permitted uninhabitable conditions at the Property, but also harassed Plaintiff. The uninhabitable conditions alleged by Plaintiff include peeling floors, unsealed bathtub, cracked bathroom sink, and/or no heating system, for which Defendants were twice cited by the Los Angeles Housing Department (LAHD) between January 2021 and January 2022. The harassment alleged by Plaintiff includes coercive cash for keys offers between May 2020 and May 2022 (during the COVID-19 pandemic), excessive and retaliatory notices to enter the Property, and actual unlawful entries into the Property. Plaintiff also pleads retaliation by Defendant Hazard against Plaintiff Gerlach based on Gerlach exercising her rights to decline “cash for keys” offers and to seek administrative relief from the LAHD for substandard conditions at the Property. Such retaliation includes threats of termination of tenancy (including during the COVID-19 pandemic) and scheduling LAHD visits to coincide with times at which Plaintiff would be unavailable to meet with housing inspectors, leading to the closure of Plaintiff’s complaints with the LAHD, as well as destroying Plaintiff’s garden on the Property, leaving debris or trash on the floor after performing repairs on the Property, badmouthing Plaintiff as a problem tenant to Defendant Hazard’s contractors and the LAHD housing inspectors, attempting to enter the Property without first giving notice to Plaintiff (including after Plaintiff changed the locks and installed a security system), and refusing to deposit Plaintiff’s rent checks between May 2022 and February 2023.

Motion Before Court

On June 14, 2023, Defendant Hazard demurred to the Complaint’s five causes of action on sufficiency and uncertainty of pleading grounds. The demurrer was set for a hearing on October 5, 2023.

On August 10, 2023, Plaintiff Gerlach opposed the demurrer.

No reply by Defendant Hazard appears in the record.

Defendant Hazard’s demurrer is now before the Court.

Demurrer

Demurrer Sufficiency 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 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.)

Uncertainty Legal Standard 

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

I.

Complaint, First Cause of Action, Breach of The Common Law Duty of Care [Negligence, Negligent Infliction of Emotional Distress]: OVERRULED.

“‘The elements of a cause of action for negligence are … “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The first cause of action alleges that as Plaintiff’s landlord, Defendant Hazard owes Plaintiff a common law duty of care to comply with ordinances, regulations, and other laws to ensure a sound and safe living environment for Plaintiff—e.g., Civil Code section 3304—and that Defendant Hazard breached those duties by unlawfully entering Plaintiff’s unit on multiple occasions without notice, permitting substandard conditions at the Property, retaliating against Plaintiff for exercising her right to seek administrative relief with the LAHD, and unlawfully demanding “cash for keys” from Plaintiff. (Complaint, ¶¶ 29-31.) These conditions and conduct by Defendant Hazard are alleged in paragraphs 10 to 25 of the Complaint, are summarized above, and are incorporated into the first cause of action. (See Background, Pleadings supra; see also Complaint, ¶ 29.)

In his demurrer, Defendant Hazard argues that the first cause of action is not properly pleaded because it is alleged in a conclusory fashion, does not alleged a specific duty of care from Defendant Hazard to Plaintiff Gerlach, and cites to a Civil Code section that does not establish duty under a negligence claim. Elsewhere, Defendant Gerlach argues outside the scope of the pleadings and argues that any negligent infliction of emotional distress (NIED) component of this claim is nothing more than negligence. (Demurrer, p. 5.)

In opposition, Plaintiff Gerlach argues that general allegations of the elements for negligence suffice to state a cause of action, such that a plaintiff need not plead a violation of a specific ordinance to state a negligence claim, with Plaintiff citing to the Complaint and to legal authority in support. Plaintiff Gerlach also argues—in agreement with the demurrer—that she pleads negligence by way of allegations of NIED and that negligence, as based on NIED, is properly pleaded in the Complaint. (Opp’n, pp. 2-4.)

No reply is before the Court.

The Court agrees that NIED is not an independent cause of action but also recognizes that insofar as the first cause of action alleges negligence based on multiple theories of negligence by Defendant Hazard, one of those multiple theories can be NIED. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984-985; accord. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818; Marllene F. v. Affiliated Psychiatric Inc. (1989) 48 Cal.3d 583, 588.) As such, the Court agrees with Plaintiff on this point.

Turning to whether the first cause of action sufficiently pleads negligence, the Court finds in favor of Plaintiff Gerlach.

The Complaint sufficiently pleads a landlord-tenant relationship. (See, e.g., Complaint, ¶¶ 1-2, 5-8, 30.) A common law duty of care applies to landlord-tenant relationships. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 923 [“[B]ecause we are dealing with the landlord-tenant relationship and the responsibilities of owners and occupiers of real property, we believe the better approach is to apply the rationale of Rowland v. Christian, supra, 69 Cal.2d 108 …, and hold the common law duty of care to be that specified in Civil Code section 1714 that all persons must exercise due care in the management of their property to avoid foreseeable injury to others”].)

Here, the Complaint pleads negligence arising from Defendant Hazard permitting and failing to remedy substandard conditions at the Property, omissions that resulted in two inspections and citations by the LAHD against Defendant Hazard for uninhabitable conditions. (Complaint, ¶¶ 15, 23, 29-31.)

To the extent that Defendant Hazard sought to challenge one or more of the various theories of negligence alleged in the first cause of action, such relief is not proper pursuant to a demurrer; a motion to strike was needed. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy”]; Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342 [A motion to strike is generally used to reach defects in a pleading that are not subject to demurrer]; see Demurrer, p. 5 [challenging NIED portion of negligence claim]; see also Complaint, ¶ 31 [alleging four alternative grounds for negligence].)

Defendant Hazard’s demurrer is therefore OVERRULED as to the Complaint’s first cause of action.

II.

Complaint, Second Cause of Action, Breach of the Covenant of Quiet Enjoyment in Violation of Cal. Civ. Code § 1942.5: OVERRULED.

Civil Code section 1942.5 prohibits landlords from evicting residential tenants, raising their rent, or decreasing housing services in retaliation against the exercise of lawful tenant rights. (See Civ. Code, § 1942.5, subds. (a), (d), (h).)

The second cause of action alleges that “Defendant Hazard retaliated against Plaintiff through their threatening and menacing actions. Defendant Hazard violated the covenant of quiet enjoyment by, unlawfully entering Plaintiff’s unit on multiple occasions without notice, permitting substandard conditions at the Property, retaliating against Plaintiff for exercising her right to seek administrative relief with the Los Angeles Housing Department, and unlawfully demanding ‘cash for keys’ from Plaintiff.” (Complaint, ¶ 39.) The second cause of action incorporates prior allegations, such as that Defendant Hazard made threats of termination of tenancy (including during the COVID-19 pandemic), scheduled LAHD visits to coincide with times at which Plaintiff would be unavailable to meet with housing inspectors, leading to the closure of Plaintiff’s complaints with the LAHD, destroyed Plaintiff’s garden on the Property, left debris or trash on the floor after performing repairs on the Property, badmouthed Plaintiff as a problem tenant to Defendant Hazard’s contractors and the LAHD housing inspectors, attempted to enter the Property without first giving notice to Plaintiff (including after Plaintiff changed the locks and allegedly installed a security system), and refused to deposit Plaintiff’s rent checks between May 2022 and February 2023. (Complaint, ¶¶ 15-25, 37.)

In his demurrer, Defendant Hazard argues in effect that the Complaint does not allege retaliation following Plaintiff’s alleged exercise of her rights through the LAHD in January 2021 because the complained-of conduct precedes this date, because the dates of harassment are unclear, or because this statutory section may not be invoked more than once in any 12-month period. (Demurrer, pp. 5-6.)

In opposition, Plaintiff Gerlach argues that the Complaint pleads two bases for liability pursuant to Civil Code section 1942.5, subdivisions (a) and (d). The first ground is the allegations relating to the LAHD complaints and subsequent retaliation. The second ground is the allegations relating to Defendants Hazard’s conduct in seeking “cash for keys” from Plaintiff Gerlach. Plaintiff also argues that the 12-month limitation on section 1942.5 involves a 12-month restriction on using this statutory section more than once in a year for affirmative defense purposes (subd. (b)), and that such restriction does not limit a private right of action (subd. (h)) (Opp’n, pp. 4-6.)

No reply is before the Court.

The Court finds in favor of Plaintiff Gerlach.

The Complaint sufficiently alleges that Defendant Hazard retaliated against Plaintiff Gerlach for making complaints of uninhabitable conditions with the LAHD, including by allegedly threatening to terminate Plaintiff’s tenancy, physically destroying Plaintiff’s garden, using repairs as a pretense to enter Plaintiff’s home, and badmouthing Plaintiff. (Complaint, ¶¶ 15-20.) Moreover, as alleged, the threat to terminate tenancy and destruction of Plaintiff’s garden could have taken place within 180 days of the LAHD complaint being made in January 2021. (Complaint, ¶¶ 17-18.)

The Court also finds that while subdivision (b) of section 1942.5 limits the use of that statutory section to once per year, here, there is no allegation in the Complaint that Plaintiff made use of section 1942.5 against Defendant Gerlach within one year of bringing this suit. Neither does the demurrer sufficiently explain why one cause of action for violation of section 1942.5 cannot rely on more than one factual background to support liability.

Defendant Hazard’s demurrer is therefore OVERRULED as to the Complaint’s second cause of action.

III.

Complaint, Third Cause of Action, Breach of the Covenant of Quiet Enjoyment in Violation of Cal. Civ. Code § 1940.2: OVERRULED.

It is unlawful for a landlord to, for the purpose of influencing a tenant to vacate a dwelling: 

(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code. 

(2) Engage in conduct that violates Section 518 of the Penal Code. 

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. 

(4) Commit a significant and intentional violation of Section 1954. 

(5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief. (Civil Code, § 1940.2, subds. (a)(1)-(5).)

The third cause of action alleges that “Defendant Hazard breached the covenant of quiet enjoyment through their threatening and menacing actions. Defendant Hazard violated the covenant of quiet enjoyment by, unlawfully entering Plaintiff’s unit on multiple occasions without notice, permitting substandard conditions at the Property, retaliating against Plaintiff for exercising her right to seek administrative relief with the Los Angeles Housing Department, and unlawfully demanding ‘cash for keys’ from Plaintiff.” (Complaint, ¶ 48.)

In his demurrer, Defendant Hazard argues that the third cause of action is not sufficiently pleaded because the Complaint’s allegations do not rise to a substantial interference with the tenant’s ability to use and enjoy the premises. (Demurrer, p. 6.)

In opposition, Plaintiff Gerlach argues that the third cause of action is sufficiently pleaded for various reasons. First, Plaintiff argues that “[i]t is patent that facts that would satisfy the examples of violations prohibited in Civil Code § 1940.2 would also be ‘substantial’ within the meaning of the common law.” Second, Plaintiff argues that “Plaintiff’s allegations here are a fortiari [sic] substantial interferences” that rise to the level of interference in the case cited by Defendant Hazard’s demurrer, e.g., allegations related to needing to change the locks to keep Defendant Hazard from entering the Property, paying for a security system, and manifestations of stress. (Opp’n, pp. 6-7.)

No reply is before the Court.

The Court finds in favor of Plaintiff Gerlach.

Here, the allegations in the Complaint are incorporated into the third cause of action and sufficiently allege a violation of section 1940.2. Section 1940.2 is violated where the landlord commits a significant and intentional violation of Civil Code section 1954, which provides the conditions pursuant to which a landlord may legally enter a dwelling unit. (Civ. Code, §§ 1940.2, subd. (a)(4), 1954, subd. (a)-(a)(6).) Here, the Complaint alleges that on various occasions, Defendant Hazard entered the Property without giving notice of his intent to enter the Property, without Plaintiff’s consent, and under circumstances where his conduct was intentional (e.g., Defendant and his agents entering the Property after Plaintiff had changed the locks, thus seemingly forcing entry). (Complaint, ¶¶ 13, 24, 45, 48; see also Complaint, ¶¶ 13, 19, 21.) Such allegations rise to the level of violation of Civil Code section 1940.2, subdivision (a)(4).

Defendant Hazard’s demurrer is therefore OVERRULED as to the Complaint’s third cause of action.

IV.

Complaint, Fourth Cause of Action, Violation of the Tenant Anti-Harassment Ordinance, L.A.M.C. Art. 5.3: OVERRULED.

Article 5.3 of Chapter IV the Los Angeles Municipal Code (LAMC) prohibits tenant harassment. (LAMC, § 45.33 [defining harassment].) “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.” (LAMC § 45.35(A).)

The fourth cause of action alleges that Defendant Hazard violated the LAMC anti-harassment ordinance by unlawfully attempting to or in fact entering enter the Property, attempting to coerce Plaintiff into accepting “cash for keys,” and refusing to deposit Plaintiff’s rent payments. (Complaint, ¶ 54; see Complaint, ¶¶ 12, 24, 25, 51.)

In his demurrer, Defendant Hazard argues that the Complaint alleges harassment based on legitimate aims and that that the Complaint does not sufficiently allege the intent necessary for this claim. (Demurrer, pp. 6-7.)

In opposition, Plaintiff Gerlach cites the Complaint at paragraphs 51 to 55 in support of this claim. Plaintiff Gerlach also cites legal authority in support of the claim. (Opp’n, pp. 7-8.)

No reply is before the Court.

The Court finds in favor of Plaintiff Gerlach.

The Court adopts its discussion in relation to the third cause of action to find harassment in the form of alleged unlawful entries into the Property by Defendant Hazard or his agents.

Defendant Hazard’s demurrer is therefore OVERRULED as to the Complaint’s fourth cause of action.

V.

Complaint, Fifth Cause of Action, Unfair and Unlawful Business Practices in Violation of California Business & Professions Code § 17200, et seq.: OVERRULED.

To state a cause of action for unfair business practices, a plaintiff must establish defendant engaged in “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Bus. & Prof. Code, § 17200.) This section establishes three types of unfair competition, prohibiting “practices that are either ‘unfair,’ or ‘unlawful,’ or ‘fraudulent.’” (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1496.) Thus, “[a]n act or practice may be actionable as “unfair” under the unfair competition law even if it is not ‘unlawful.’” (Chavez v. Whirlpool Corp. (2001) 93 Cal.App.4th 363, 374.) A violation of other laws is deemed independently actionable under the UCL. (See Law Offices of Mathew Higbee v. Expungement Assistance Servs. (2013) 214 Cal.App.4th 544, 554.) “‘Virtually any law—federal, state or local—can serve as a predicate for a section 17200 action.’” (Ibid., quoting Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1335).)

Despite the broad scope of Business and Professions Code section 17200, its remedies are limited to equitable relief; damages are not recoverable. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.)

The fifth cause of action alleges unfair business practices based on the allegations relating to Defendant Hazard unlawfully making entry into the Property, permitting substandard conditions in the Property, retaliating against Plaintiff, demanding “cash for keys,” and violating Civil Code sections 1940.2 and 1942.5 and LAMC article 5.3, among other things. Plaintiff seeks equitable relief for this cause of action. (Complaint, ¶¶ 60-63, 66.)

In his demurrer, Defendant Hazard argues that section 17200 applies to conduct affecting other businesses, not to individuals. Defendant Hazard also argues that Plaintiff can be made whole through damages, making equitable relief improper. (Demurrer, pp. 6-7.)

In opposition, Plaintiff Gerlach argues that an individual may be liable for conduct violating the unfair business practices statute, citing statutory authority in support. Plaintiff also argues that the economic damages requested in relation to other claims do not affect her entitlement to the equitable relief pleaded in the Complaint. (Opp’n, pp. 8-9.)

No reply is before the Court.

The Court finds in favor of Plaintiff Gerlach.

First, any person can be liable for a section 17200 violation, where the term “person” includes “natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons.” (Bus. & Prof. Code, §§ 17200, 17201, 17203.)

Second, contrary to Defendant Hazard’s unsupported argument, an individual has standing to maintain a section 17200 claim if he or she “has suffered injury in fact and has lost money or property as a result of the unfair competition.” (Bus. & Prof. Code, § 17204.) Here, the Complaint alleges loss of money and property and incorporates prior allegations. (Complaint, ¶¶ 56, 64.)

Third, the Court adopts the tortious and statutory violations discussed in relation to the first through fourth causes of action to find that sufficient illegality supports the fifth cause of action.

Fourth, the Court notes that the fifth cause of action properly requests equitable relief, including “restitution; disgorgement of Defendants’ ill-gotten gains; injunctive relief; and an award of attorney’s fees and costs pursuant to California Code of Civil Procedure §1021.5 and other applicable law.” (Complaint, ¶ 66.) To the extent that any of this equitable relief is not proper, it could only be challenged by way of motion to strike. (Pierson v. Sharp Memorial Hospital, Inc., supra, 216 Cal.App.3d at p. 342.)

Defendant Hazard’s demurrer is therefore OVERRULED as to the Complaint’s fifth cause of action.

VI.

Complaint, Prayer, Punitive Damages: IMPROPER.

Defendant Hazard’s demurrer is IMPROPER insofar as it challenges the allegations and prayer for punitive damages (see Demurrer, pp. 7-8) because the adequacy of punitive damages cannot be challenged in a demurrer, but rather, must be challenged in a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-164.)  

Conclusion

Defendant Brett Hazard’s Demurrer [to Complaint] is OVERRULED, in Part, and IMPROPER, in Part, as follows:

(1) OVERRULED as to the Complaint’s first through fifth causes of action; and

(2) IMPROPER as to the Complaint’s prayer for punitive damages.