Judge: Armen Tamzarian, Case: 22STCV22785, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV22785    Hearing Date: December 15, 2022    Dept: 52

Defendant Marjorie Abrahams’ Demurrer and Motion to Strike Portions of Complaint

Demurrer

Defendant Marjorie Abrahams demurs to the third, fifth, and sixth causes of action alleged in the complaint by plaintiffs Latasha Grigsby, Tajon Anderson, Austin Wicks, and Treasure Anderson.

3rd Cause of Action: Nuisance

Plaintiffs allege sufficient facts for this cause of action. Defendant argues it merely duplicates the fourth cause of action for negligence. “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 Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 (El Escorial).) “ ‘A nuisance in many, if not in most, instances, especially with respect to buildings or premises, presupposes negligence.’ ” (Ibid.) A complaint does not state a separate cause of action for nuisance when it “alleges no additional facts in support of the nuisance claim.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.)

Unlike plaintiffs’ negligence claim, their nuisance cause of action alleges an intentional tort. For negligence, plaintiffs allege defendant breached her duty of care as a landlord by negligently failing to maintain the premises. (Comp., ¶¶ 45-49.) For nuisance, plaintiffs allege, “Defendants’ allowing of the conditions to persist was intentional, unreasonable and/or reckless.” (Comp., ¶ 38.)

Defendant contends that plaintiffs fail to adequately allege intent. For example, she argues “there are no factual allegations that Defendant intentionally directed actions or conduct towards the Plaintiffs” (Demurrer, p. 5) and that “these conclusory allegations are insufficient as a matter of law to state a claim for intentional misconduct” (Demurrer Reply, p. 8).

Plaintiffs’ allegation of defendant’s intent is an ultimate fact sufficient to withstand challenge by demurrer. (See, e.g., Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [allegations that defendants acted “wrongfully and intentionally” and “in retaliation” sufficient to support prayer for punitive damages]; Johnson v. Casetta (1961) 197 Cal.App.2d 272, 276 [“an allegation of knowledge of incompetency is an allegation of ultimate fact”]; Rosin v. Superior Court (1960) 181 Cal.App.2d 486, 490 [“It has been suggested that the allegation of petitioner’s intent in removing the children from the

jurisdiction is only a conclusion. . . . This is an allegation of fact, not a mere conclusion.”].)

5th Cause of Action: Intentional Infliction of Emotional Distress

Plaintiffs fail to allege sufficient facts for this cause of action. Its elements 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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Whether the defendant’s conduct was outrageous and whether the plaintiff’s emotional distress was severe are generally questions of fact.” (Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 51.)

Plaintiffs allege sufficient facts for the first element but not the second. Courts have held that a landlord’s intentional failure to correct substandard conditions can constitute outrageous conduct sufficient for intentional infliction of emotional distress. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1068-1069.) Plaintiffs allege defendant failed and “refused” to correct hazardous conditions including leaks in the roof (Comp., ¶ 16), mold (id., ¶ 19), and deteriorating stairs (id., ¶ 20).

Plaintiffs do not adequately allege severe emotional distress. Severe emotional distress means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) In Angie M, the court found plaintiff failed to adequately allege this element when she “pleaded no facts demonstrating the nature, extent or duration of her alleged emotional distress.” (Ibid.)

Plaintiffs rely on the following allegations: Defendants’ conduct was “done for the purpose of causing Plaintiffs to suffer humiliation, mental anguish, and emotional distress.” (Comp., ¶ 54.) As a result, “Plaintiffs suffered severe mental and emotional distress. This emotional distress has caused Plaintiffs to sustain general and special damages.” (Id., ¶ 55.) These conclusory allegations do not show the nature, extent, or duration of plaintiffs’ emotional distress. The complaint uses the vague terms “humiliation, mental anguish, and emotional distress,” and restates the element of “severe mental and emotional distress” as a legal conclusion. Furthermore, these allegations are particularly vague because they refer to all four “plaintiffs” jointly.

6th Cause of Action: Retaliatory Eviction

Plaintiffs allege sufficient facts for retaliatory eviction. Defendant argues the complaint does not adequately allege defendant intentionally served the eviction notice in retaliation for plaintiffs’ complaints. As discussed above, the intent to retaliate is an ultimate fact.

Plaintiffs allege they complained to the Los Angeles County Department of Public Health in 2021. (Comp., ¶ 22.) On June 1, 2021, the health department inspected the property and found several violations. (Ibid.) Defendants did not remedy the violations within 35 days and instead “served Plaintiffs on or about October 8, 2021 with a 90-day-notice to move out.” (Ibid.) Plaintiffs further allege, “Defendants did not have did not have any good faith grounds by which to evict Plaintiffs and served the eviction notice in retaliation for plaintiffs having complained about the conditions at the subject property.” (Id., ¶ 63.) These allegations include the necessary ultimate facts. Moreover, the timing of the inspection and eviction support an inference of defendant’s intent.

Defendant relies on Western Land Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 741, which stated a tenant “shall bear the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory.” The case does not apply on demurrer. It was an appeal from a judgment after jury trial. The court discussed the burdens of proof and persuasion, not the pleading standard.

Disposition

Defendant Marjorie Abrahams’ demurrer to the fifth cause of action is sustained with 20 days’ leave to amend. Defendant’s demurrers to the third and sixth causes of action are overruled.

Motion to Strike

Defendant Marjorie Abrahams moves to strike four portions of the complaint.

Paragraph 63

Defendant moves to strike paragraph 63 of the complaint, which alleges, “Plaintiffs are informed and believe, and thereon allege, that Defendants did not have any good faith grounds by which to evict Plaintiffs and served the eviction notice in retaliation for plaintiffs’ having complained about the conditions at the subject property.”

Defendant argues this paragraph is a “factually unsupported … conclusion of law.” (Motion, p. 8.) As discussed above with respect to defendant’s demurrer to the third cause of action, this portion of the complaint is a proper allegation of the ultimate fact of defendant’s intent.

Portions Regarding Punitive Damages

Courts may strike allegations about punitive damages when punitive damages are unavailable as a matter of law or where the facts alleged fail to constitute oppression, fraud, or malice. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164; see Civ. Code, § 3294(a).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294(c)(1).)

The Court of Appeal has found allegations of retaliation can establish malice. In Perkins v. Superior Court (1981) 117 Cal.App.3d 1 (Perkins), the plaintiff alleged his telephone company published a phone book erroneously listing his number as the number for an auto supply store. (Id. at p. 4.) The complaint alleged, “ ‘After plaintiff complained to defendants as aforesaid, and in retaliation therefor, defendants caused telephone service to plaintiff's residence to be terminated.’ ” (Id. at p. 5.)

The court stated: “Taken in context, the words ‘wrongfully and intentionally’ … describe a knowing and deliberate state of mind from which a conscious, disregard of petitioner’s rights might be inferred—a state of mind which would sustain an award of punitive damages.” (Perkins, supra, 117 Cal.App.3d at p. 6.) “The word ‘retaliation’ in paragraph ten of the complaint describes defendants’ motive for shutting off petitioner’s home phone service—a motive which, if proven, would sustain a finding of malice.” (Ibid., fn. omitted.)

Plaintiffs allege sufficient facts for malice. They allege defendant intentionally violated their rights by evicting them in retaliation for their complaints about the premises. (Comp., ¶¶ 22, 63.) As in Perkins, these allegations constitute conduct intended to cause injury to plaintiffs or despicable conduct carried on with a willful and conscious disregard of plaintiffs’ rights.

Defendant’s reliance on McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296 (McDonell) is misplaced. There, the court held allegations defendant failed to repair dangerous conditions—like those in plaintiffs’ complaint—were insufficient to permit recovery of punitive damages. The plaintiff alleged defendant was “aware of the defective condition of the roof and drains and knowing they could cause damage, refused

to repair them.” (Id. at p. 299.) The court held that did “not spell an intentional tort (a conscious, deliberate intent to injure the plaintiffs) or conduct so recklessly disregardful of the rights of others (sometimes characterized as wanton or wilful misconduct) as would show the ‘malice’ in fact.” (Ibid.) “Calling this a ‘wilful’ failure to repair was not the same as saying defendant acted with a wrongful personal intent to injure or in reckless disregard of the rights of others.” (Id. at p. 300.)

In McDonnell, however, the complaint only alleged willful failure to repair. It did not include allegations that the defendant violated plaintiffs’ other rights or intentionally retaliated against them, as in Perkins and plaintiffs’ complaint.

Disposition

Defendant Marjorie Abrahams’ motion to strike is denied.