Judge: Armen Tamzarian, Case: 24STCV23040, Date: 2025-01-22 Tentative Ruling
Case Number: 24STCV23040 Hearing Date: January 22, 2025 Dept: 52
Defendants’ Demurrer and Motion to
Strike
Demurrer
Defendants Santa Monica Housing
Partners, L.P. and Related Management Company, L.P. demur to the third and
fifth causes of action alleged by plaintiff Carolyn Robertson’s first amended
complaint.
Summary
of Allegations
Plaintiff alleges five causes of
action arising from her tenancy at 1725 Ocean Avenue, Unit 421, in Santa
Monica. Plaintiff alleges, “On or about
September 1, 2022, Defendants provided Plaintiff with a notice to enter her
unit on September 6, 2022, to perform pest control service.” (¶ 19.)
Plaintiff then sent an email to defendants’ representative stating, “I
received a notice on my door today September 1st 2022 then on September 6th
2022 Pest Control will be entering my apartment last month August 2022 pest
control and maintenance Diego asked to enter my apartment to spray or put down
non-toxic pesticide I have asthma I have bad lungs bad breathing problems I
cannot have any type of pest controls the last time in 2020 there was
pesticides put in my apartment I got sick and had to go to the emergency room …
I am requesting that you do not come in my apartment with any type of pest
control …” (¶ 20.) Defendants’ area manager replied, “Pest
Innovations will not be treating your unit, however they will be inspecting for
pest and giving us a recommendation for non-chemical preventive measures. As we understand/you have informed us of your
medical sensitivity to pesticides. Again
this is only an inspection not a treatment. The notice to enter stands.” (¶ 21.)
On September 6, 2022, plaintiff “began
smelling noxious fumes and chemicals emanating from her front door. Plaintiff
then began wheezing, coughing uncontrollably, and experienced severe shortness
of breath.” (¶ 22.) “When Plaintiff opened the front door of her
unit, she saw the onsite property manager, along with a pest control
technician, spraying pesticides and/or other chemicals right outside of her
unit. Plaintiff then started panicking and yelling at the property manager and
pest control technician to stop spraying chemicals immediately.” (¶ 23.)
“Subsequently, due to Plaintiff’s raspatory issues, as well as nausea
and abdominal cramping, she was rushed to the hospital emergency room.” (¶ 24.)
3rd Cause of Action: Negligent Hiring, Training, and
Supervision
Plaintiff alleges sufficient facts
for this cause of action. “Liability for negligent
hiring and supervision is based upon the reasoning that if an enterprise hires
individuals with characteristics which might pose a danger to customers or
other employees, the enterprise should bear the loss caused by the wrongdoing
of its incompetent or unfit employees.”
(Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)
“[L]iability
for negligence can be imposed only when the employer knows, or should know,
that the employee, because of past behavior or other factors, is unfit for the
specific tasks to be performed.” (Federico
v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1215.)
Plaintiff alleges defendants hired
people to perform pest control using pesticides. Defendants acknowledged receiving notice that
doing so posed a particular risk to plaintiff.
(¶ 21.) Plaintiff alleges
defendants breached their “duty by hiring, training and supervising agents and employees
whom they knew were not qualified to hold the positions they were assigned, by
failing to offer the agents and employees training, and by failing to supervise
them to ensure that the Subject Property was properly managed and maintained.” (¶ 52.)
Unlike cases where agents committed intentional torts unrelated to the
scope of their duties (see, e.g., Evan F. v. Hughson United Methodist Church
(1992) 8 Cal.App.4th 828, 836), defendants hired people to perform work that itself
posed a potential risk. Being
unqualified or unfit to perform that work foreseeably increases that risk. Plaintiff alleges that risk materialized and
injured her. These allegations suffice
on demurrer.
5th Cause of Action: Intentional Infliction of
Emotional Distress
Plaintiff
alleges sufficient facts for this cause of action. The claim’s 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.)
Plaintiff
alleges that, though defendants knew of her “medical sensitivity to pesticides”
(¶ 21), defendants’ agents sprayed pesticides “right outside of her unit” (¶
23). She further alleges she suffered “mental
stress, emotional distress, insomnia, discomfort, annoyance, frustration,
anxiety.” (¶ 42.) On demurrer, the court cannot conclude that,
as a matter of law, defendants’ conduct was not outrageous enough or
plaintiff’s emotional distress was not severe enough to support a cause of
action for intentional infliction of emotional distress.
Motion to Strike
Defendants move to strike two
categories of portions of plaintiff’s first amended complaint.
First,
defendants move to strike portions of the pleading regarding punitive
damages. Courts may strike allegations
regarding punitive damages where the facts alleged “do not rise to the level of
malice, oppression or fraud necessary” to recover punitive damages under Civil
Code section 3294. (Turman v. Turning
Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “ ‘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).) “ ‘Oppression’ means
despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.” (Civ. Code, § 3294(c)(2).)
Plaintiff alleges
sufficient facts for malice or oppression.
A trier of fact could conclude that allowing someone to spray pesticides
“right outside of her unit” (¶ 23) despite plaintiff’s known chemical
sensitivity constituted despicable conduct with a willful and conscious
disregard of plaintiff’s rights or safety.
Second, defendants move to strike plaintiff’s
prayer “[f]or restitution, according to Cal. Bus. & Prof. Code, § 17200, et
seq.” (Prayer, ¶ 4.) Courts
may strike a “demand for judgment requesting relief not supported by the
allegations of the complaint.” (Code
Civ. Proc., § 431.10, subd. (b)(3).)
Plaintiff does not allege a cause of action under Business and
Professions Code section 17200 or any other basis for restitution. Her opposition does not address this issue. Plaintiff does not meet her burden of showing
a possibility of curing this defect by amending the complaint.
Disposition
Defendants
Santa Monica Housing Partners,
L.P. and Related Management Company, L.P.’s demurrer to plaintiff Carolyn
Roberton’s first amended complaint is overruled.
Defendants’
motion to strike portions of plaintiff’s first amended complaint is granted in part, without leave to amend, as to the prayer for
restitution. The court hereby strikes
the following portion of the first amended complaint without leave to amend: “For
restitution, according to Cal. Bus. & Prof. Code, § 17200, et seq.” (Prayer, ¶ 4.)
Defendants
shall answer the first amended complaint within 20 days.