Judge: Anne Richardson, Case: 23STCV28566, Date: 2024-10-16 Tentative Ruling

Case Number: 23STCV28566    Hearing Date: October 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiffs Tierre Turner, Madison Turner, Julia Frazelle, Michael Bonenfant, Anna Khandamirian, Mayranush Mkrtchian, and Danielle Audas (collectively Plaintiffs), sue Defendants 4410 Sepulveda LLC., McIntire Real Estate Inc., Moss Management Services Inc., and Does 1 through 15, inclusive (collectively Defendants), pursuant to a May 28, 2024, Second Amended Complaint (SAC) alleging causes of action for: (1) Breach of Implied Warranty of Habitability; (2) Breach of Covenant of Quiet Use & Enjoyment; (3) Tenant Harassment – Violation of Los Angeles Municipal Code § 45.33; (4) Nuisance; (5) Collection of Illegal Rent – Violation of Los Angeles Municipal Code § 151.04; (6) Negligence; (7) Discrimination on the Basis of Disability in Violation of FEHA; (8) Elder Abuse – Physical & Emotional Harm, California Welfare & Institutions Code §§ 15600, et seq., (9) Elder Abuse – Financial,, California Welfare & Institutions Code §§ 15610.30; and (10) Discrimination on the Basis of Age in Violation of FEHA.

Plaintiffs are all tenants in an apartment complex located at 4410 Sepulveda Boulevard (the Property), which is owned and/or managed by the Defendants. The claims arise from allegations that the Defendants have created and failed to repair or abate numerous uninhabitable conditions of the Property thus causing substantial harm to the Plaintiffs. The Plaintiffs assert that, among other things, Defendants failed to repair leaks and water damage, remediate mold, remediate pest infestations, or compensate Plaintiffs for hotel expenses during construction on their units. The Plaintiffs also assert that the Defendants have failed to secure the parking garage and mail areas leading to their cars being broken into and mail stolen. Plaintiffs further allege that they have been made to pay full rent during the periods in which their units were uninhabitable.

B. Motion Before the Court

On June 28, 2024, Defendants demurred to the SAC’s third, seventh, eighth, ninth, and tenth causes of action.

That same day, Defendants filed a motion to strike portions of the SAC.

On September 30, 2024, Plaintiffs filed an opposition to the demurrer and a separate opposition to the motion to strike.

On October 7, 2024, Defendants filed replies to the demurrer and motion to strike.

The Defendants’ demurrer and motion to strike are now before the Court.

II. Demurrer

A. Meet and Confer

The Defendants have satisfied the meet and confer requirement pursuant to Code of Civil Procedure section 430.41 subdivision (a)(3)(A). (Volcy Decl. ¶ 3.)  

B. Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court however may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) 

Pursuant to the Plaintiffs’ request, the Court takes judicial notice of the Stipulation Consenting to Plaintiffs’ Filing a Second Amended Complaint. (RJN Ex. 1)

C. 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 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.)

A demurrer for uncertainty tests whether 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].) 

D. Analysis

Defendants demur to (1) the third cause of action for Tenant Harassment, (2) the seventh cause of action for Discrimination on the Basis of Disability, (3) the eighth cause of action for Elder Abuse – Physical & Emotional Harm, (4) the ninth cause of action for Elder Abuse – Financial, and (5) the tenth cause of action for Discrimination on the Basis of Age, on the grounds that each claim fails to state facts sufficient to state a cause of action and is uncertain.

1.     Third Cause of Action, Tenant Harassment

Los Angeles Municipal Code section 45.33 defines tenant harassment as “a landlord’s knowing and willful course of conduct directed at a specific tenant or tenants that causes detriment and harm, and that serves no lawful purpose, including, but not limited to, the following actions…” (Los Angeles Municipal Code § 45.33)

The ordinance thereafter lists sixteen categories of conduct constituting harassment, including: “(1) Reducing or eliminating housing services required by a lease, contract or law, including the elimination of parking if provided in the tenant’s lease or contract except when necessary to comply with a court order or local or state law, or to create an accessory dwelling unit or additional housing. (2) Failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; or failure to follow applicable industry standards to minimize exposure to noise, dust, lead paint, asbestos, or other building materials with potentially harmful health impacts.”

Defendants contend that the conduct Plaintiffs complain of fails to support a tenant harassment claim under LAMC section 45.33, because Defendants were responsive to Plaintiff’s complaints, inspected the units and “performed repairs, replaced flooring, ran fans, performed abatement, etc.” (Demurrer p. 3:11-13.) The Defendants assert that they completed remediation in Plaintiff Bonenfant’s unit five months after the complaint (SAC ¶ 8), they began repairs in Plaintiff Turner’s unit two months after Turner’s complaint (SAC ¶ 17), and that they similarly completed repairs in Plaintiffs Khandamirian, Mkrtchian, and Babayan’s units. (SAC ¶¶ 36-37, 61.) The Defendants assert that “these are hardly the actions of landlords who were dismissive of plaintiffs’ complaints.” (Reply p. 3:8.) They assert that Plaintiff’s claims that the repairs were insufficient would amount to negligence at best, but do not arise to a showing of tenant harassment. (Reply p. 3:12-14.)

Here, the Plaintiffs’ assertions are sufficient to state a cause of action under Los Angeles Municipal Code section 45.33. A landlord may be liable for tenant harassment under section 45.33 for, among other things, failing to timely complete necessary repairs and engaging in acts or omissions which substantially interfere with a tenant’s use and enjoyment of their rented property. (LAMC § 45.33) The Plaintiffs allege that Plaintiff Bonenfant immediately notified the Defendants when his unit flooded, but that the Defendants waited five months, until after Bonenfant’s roof collapsed, to address the problem. (SAC ¶¶ 6-8.) The SAC further alleges that the water damage caused mold, which Defendants ‘remediated’ by painting over it. (SAC ¶¶ 6-8.) Similarly, the Plaintiffs assert that the Defendants did not inspect the Babayan’s complaints of flooding in their unit until five months after they complained. (SAC ¶¶ 54-56.) Other Plaintiffs allege that the Defendants did not address their complaints of water damage and mold for over a year. (SAC ¶¶ 25-27, 72.) The Plaintiffs assert that they were required to pay full rent, without abatement, even during the months that they were forced to vacate the units due to construction. These allegations are facially sufficient to state a claim for tenant harassment under Los Angeles Municipal Code section 45.33.

Thus, the demurrer is OVERRULED as to Plaintiffs’ third cause of action in the SAC.

2.     Seventh Cause of Action, Disability Discrimination

Housing discrimination against people with disabilities is prohibited under California law by the Fair Employment and Housing Act (FEHA).¿(Gov. Code § 12900 et seq.) The FEHA generally prohibits the owner of a housing accommodation from discrimination against or harassing a person because of their race, disability, or source of income.  (See Gov. Code, § 12955. ) The necessary elements for a FEHA cause of action are: (1) that the plaintiff was a member of a protected class; (2) that the plaintiff applied and qualified for a housing accommodation; (3) that the plaintiff was denied the housing accommodation; and (4) circumstantial evidence of discriminatory motive, such as the fact that similarly situated individuals applied for and obtained such an accommodation.  Department of Fair Employment & Housing v. Superior Court (2002) 99 Cal.App.4th 896, 902.

The Defendants focus much of their argument on the Plaintiffs' citation to Government Code section 12940 of the Fair Employment and Housing Act  in the heading of the seventh cause of action, which Plaintiffs contend was an obvious typographical error, as they also cited to section 12955. The Plaintiffs allege that Plaintiff Bonenfant suffers from lupus, and that he informed the Defendants that his condition was exacerbated by mold. (SAC ¶ 8.) They contend that they are alleging a “housing discrimination failure to accommodate claim,” which “merely requires that a landlord knew of the tenant’s disability and failed to accommodate it, citing Auburn Woods I Homeowners Assn v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592.) (Opp., p. 6.) In reply, defendants cite to the jury instruction relating to disparate treatment discrimination. (Reply, pp. 3-4.)

Whatever Plaintiffs’ theory of the claim is, it is not clearly alleged, as the claim does cite to different provisions of the Fair Employment Housing Act, and the complaint neither mentions disparate treatment nor failure to accommodate.  Thus, the better practice seems to be to allow an amendment so that the allegations are clear and every necessary element can be alleged.

Thus, the demurrer is SUSTAINED, with leave to amend, as to Plaintiffs’ seventh cause of action in the SAC.

3.     Eighth and Ninth Causes of Action for Physical, Emotional and Financial Elder Abuse

To state a cause of action for elder abuse and neglect, Plaintiff must allege “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1).)

The necessary elements of a cause of action for financial abuse of an elder are: (1) that the defendant obtained the elder’s property; (2) that the elder was 65 years of age or older at the time of the conduct; (3) that the defendant took the property for a wrongful use, such as fraud; (4) that the elder was harmed; and (5) that the defendant’s conduct was a substantial factor in causing the elder’s harm.  See Welf. & Inst. Code, § 15610.30 subd. (a); see also Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-528.

Acts which are prohibited under the Elder Abuse Act provisions of the Welfare and Institute Code “do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781.) To constitute abuse and neglect within the meaning of the Elder Abuse Act, thereby triggering the enhanced remedies available under the Act, Plaintiff “must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct,” with recklessness referring “to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur,” and “[o]ppression, fraud and malice [involving] intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88-89, quotation marks omitted.) 

Here, the Plaintiffs have failed to state facts that meet the heightened standard of pleading for elder abuse and neglect. (See Covenant Care, supra, 32 Cal.4th at p. 790 [“statutory causes of action must be pleaded with particularity”].) The Plaintiffs allege that the Babayans are over 65 years old. (SAC ¶¶ 52-53.) They assert that it took the Defendants over five months to address their water damage and mold complaints, plus additional months after that to complete the repairs. (SAC ¶¶ 61-62.) The Plaintiffs further assert that the Defendants continued to demand full rent even during the months when the Babayans were required to vacate the apartment for repairs. (SAC ¶ 63, 65.)

California courts have recognized that disputes regarding rentals to elderly tenants can constitute financial elder abuse. (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 507-510.) The detailed facts here are sufficient to withstand demurrer on the financial elder abuse claim when compared to the facts in Cameron.

However, as to physical and emotional abuse, the Welfare and Institutions code defines “neglect” to include “failure to assist . . . in the provision of . . . shelter” and “failure to protect from health and safety hazards.” (Wel. & Inst. Code § 15610.57 subd. (b) (1) and (3).) However, there is no indication that the statute applies to landlords, as they do not fit the definition of care custodians in Welfare and Institutions Code section 15610.07 [“the deprivation by a care custodian of goods or services that are necessary to avoid harm or mental suffering”.] Thus, the citation to Delaney v. Baker (1999) 20 Cal.4th 23, 34 is not applicable where it is merely distinguishing between nurses who may be acting both as medical providers and as care custodians.

Thus, the demurrer is OVERRULED as to Plaintiffs’ ninth cause of action for financial elder abuse in the SAC but SUSTAINED as to Plaintiffs’ eighth cause of action for physical elder abuse. However, in light of this being the first demurrer, the Court will grant Plaintiff leave to amend.

4.     Tenth Cause of Action, Age Discrimination

As stated above in the discussion pertaining to the seventh cause of action for disability discrimination, the FEHA generally prohibits the owner of a housing accommodation from discrimination against or harassing a person because of a protected characteristic (See Gov. Code, § 12955; (Department of Fair Employment & Housing, supra, 99 Cal.App.4th 896 at 902.) Here, although Plaintiffs do not cite to the wrong section of the FEHA, it is still true that the Plaintiffs do not allege all of the elements of a failure to accommodate claim.

Thus, the demurrer is SUSTAINED, with leave to amend, as to Plaintiffs’ tenth cause of action in the SAC.

III. Motion to Strike

            The Defendants move to strike several portions of the SAC relating to punitive damages, treble damages and attorneys’ fees.

            The trial court has broad authority to strike any portion of a pleading drawn not within conformity of the law and its orders. (Code Civ. Proc., § 436.) The trial court shall strike an allegation of punitive damages on motion unless the plaintiff has pleaded ultimate supporting facts.¿(Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“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 (a).)

Here, the Plaintiffs allege various habitability issues including that the Defendants delayed in remediating mold and water damage and failed to secure the parking and mail areas leading to theft. The Plaintiffs also allege that the Defendants illegally collected rent. However, as discussed in Section II above, these allegations, without more, are insufficient to show that the Defendants are guilty of oppressive, fraudulent, or malicious conduct. This case is a basic habitability action based on delayed responses to water leaks, pest infestations, and the like.

Several of Plaintiffs’ statutory claims allow Plaintiffs to collect exemplary damages where there has been oppressive, fraudulent, or malicious conduct. The Court disagrees with the Defendants that Plaintiffs’ allegations in their current form are insufficient to support a punitive award. In order to plead punitive damages, a plaintiff must “describe a knowing and deliberate state of mind from which a conscious, disregard of [the plaintiff’s rights’] might be inferred.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. See also Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922 [court held that a tenant had stated sufficient facts to allege claims for intentional infliction of emotional distress where the tenant alleged a defendant’s knowing, intentional and willful failure to correct defective conditions of the premises].)

Here, the Court concludes that the detailed allegations regarding knowledge of the defective conditions in the apartment, and failure to act timely or at all to correct the conditions,  sufficiently support an allegation of malice, and thus, of punitive damages pursuant to Civil Code section 3294.

Moreover, because the Plaintiffs have met their pleading burden as to Tenant Harassment under the Los Angeles Municipal Code, Defendants’ request to strike the portion of the SAC relating to reasonable attorney fees pursuant to Los Angeles Municipal Code section 43.35 is denied.

Thus, the motion to strike is DENIED.

IV. Conclusion

The Defendants’ Demurrer is OVERRULED as to the third cause of action for Tenant Harassment - Violation of Los Angeles Municipal Code § 45.33;

The ninth cause of action for Elder Abuse – Financial Abuse.

The Defendants’ Demurrer is SUSTAINED, with leave to amend, as to the following causes of action:

The seventh cause of action for Discrimination on the Basis of Disability;

The eighth cause of action for Elder Abuse – Physical & Emotional Harm; and

The tenth cause of action for Discrimination on the Basis of Age.

The motion to strike is DENIED.