Judge: Ashfaq G. Chowdhury, Case: 24NNCV00495, Date: 2024-11-06 Tentative Ruling
Case Number: 24NNCV00495 Hearing Date: November 6, 2024 Dept: E
Case No: 24NNCV00495
Hearing Date: 11/6/2024 – 8:30am
Trial Date: UNSET
Case Name: JAN NAJARIAN, an individual; v. VINCENT LIEW,
an individual; VINCENT LIEW, as Trustee to the Vincent Liew Trust; and DOES
1-100, inclusive
[TENTATIVE RULING - DEMURRER]
RELIEF REQUESTED
“Defendants VINCENT LIEW and VINCENT LIEW, as Trustee to the VINCENT LIEW TRUST
will hereby Demurrer to the seventh cause of action for Intentional Infliction
of Emotional Distress and twelfth cause of action for Unpermitted/Illegal Unit
in Violation of Common Law.
This
Demurrer is based on this Notice, this Demurrer, the supporting Memorandum of
Points and Authorities filed concurrently herewith, the Declaration of Robert
Phan, the attached exhibit, the Request for Judicial Notice, the complete
records and files in this action, and upon such further oral and documentary
evidence as the Court may consider at the hearing on this Demurrer.”
(Def.
Mot. p. 1-2.)
BACKGROUND
Plaintiff, Jan Najarian,
filed the instant action on 3/27/2024 against Defendants, Vincent Liew, an
individual, and Vincent Liew, as Trustee to the Vincent Liew Trust.
Plaintiff
alleges 12 causes of action for: (1) Violation of California Civil Code §
1942.4; (2) Tortious Breach of the Warranty of Habitability; (3) Private
Nuisance; (4) Business and Professions Code § 17200, et seq.; (5) Negligence;
(6) Breach of Covenant of Quiet Enjoyment; (7) Intentional Infliction of
Emotional Distress; (8) Negligence Per Se; (9) Fraud and Deceit; (10) Breach of
Contract; (11) False Advertising, California Business & Professions Code §
17500, et seq.; and (12) Unpermitted/Illegal Unit In Violation of Common Law.
Plaintiff
alleges that Plaintiff was a tenant of the subject premises. (See Compl. ¶ 1.) Plaintiff
alleges that during the tenancy, she was exposed to substandard conditions such
as dysfunctional plumbing systems, ant and termite infestations, mold
contamination, broken doors, improper weather proofing, illegal and unpermitted
housing, cockroach infestations, improper ceiling and floors, broken doors, and
substandard housing.
Defendants
demur to the seventh and twelfth causes of action arguing that the facts
alleged fail to state a claim against any of the Defendants.
PROCEDURAL ANALYSIS
Moving Party:
Defendants, Vincent Liew ad Vincent Liew as Trustee to the Vincent Liew Trust
Responding Party: Plaintiff,
Jan Najarian
Moving Papers: Notice/Demurrer;
Request for Judicial Notice
Opposition Papers: Opposition
Reply Papers: Reply
Proof of
Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
Meet and Confer
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ.
Proc., § 430.41, subd. (a).) “The
parties shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party shall
be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., § 430.41, subd. (a)(2).)
Failure
to sufficiently meet and confer is not grounds to overrule or sustain a
demurrer. (Code Civ. Proc., § 430.41(a)(4).)
Here,
Defendants’ counsel attempted to meet and confer with Plaintiff’s counsel. (See
Phan Decl. ¶¶ 4-9.)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) 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.) The court “treat[s]
the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525.) In a demurrer
proceeding, the defects must be apparent on the face of the pleading or via
proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and
not the evidence or other extrinsic matters; therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)
Demurrer – Uncertainty
A special demurrer for
uncertainty, CCP section 430.10(f), is disfavored and will only be sustained
where the pleading is so bad that defendant cannot reasonably respond—i.e.,
cannot reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993)
14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Ibid.)
ANALYSIS
Seventh Cause of Action – Intentional Infliction of
Emotional Distress
As
stated in Christensen v. Superior Court:
The elements of the tort of intentional
infliction of emotional distress 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. ...' Conduct to
be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.“ (Davidson v. City of Westminister (1982)
32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894].) The defendant
must have engaged in ” conduct intended to inflict injury or engaged in with
the realization that injury will result.“ (Id. at p. 210.)
It is not enough that the conduct be
intentional and outrageous. It must be conduct directed at the plaintiff, or
occur in the presence of a plaintiff of whom the defendant is aware.
(Christensen v. Superior Court (1991) 54 Cal.3d
868, 903.)
Plaintiff alleges this cause of action in paragraphs
128-136 of the Complaint.
Plaintiff alleges that the City of Monterey Park
inspected the premises and observed multiple violations which resulted in a
formal Order and Government Violation of Monterey Park Municipal Code §§ 4.20.100,
16.01.040, and 105.1. Plaintiff alleges that the City of Monterey gave a
compliance deadline, but the deadline passed and Defendants did not remedy the
violation.
Further, Plaintiff alleges that Defendants’ practice/conduct
of ignoring these conditions and/or otherwise failing to make any repairs,
under the circumstances, is extreme and outrageous.
Plaintiff also alleges that Defendants were placed on
notice of the defective and substandard conditions at the premises.
Plaintiff further alleges that Defendants failed to maintain
the Property in a habitable condition; failed to abate numerous disgusting and
dangerous conditions and hazards; blatantly ignored Plaintiff’s repair requests
and complaints; lied to Plaintiff about repairs and maintenance, all while
collecting full rent despite having actual knowledge that the conditions of the
Property were affecting the physical and mental health of their residents.
Defendants argue that Plaintiff fails to state a cause
of action for IIED because Plaintiff failed to allege the conduct was directed
at the Plaintiff, or occurred in the presence of a Plaintiff whom the
Defendants were aware.
Here, Defendants’ argument is unavailing. The Court
directs Defendants to ¶¶ 133-134 of the Complaint.
Defendants also argue that the instant allegations
only amount to negligence at best.
The Court does not find this argument availing.
As stated in Plotnik v. Meihaus:
“Regarding emotional distress, the trial
court initially determines whether a defendant's conduct may reasonably be
regarded as so extreme and outrageous as to permit recovery. Where reasonable
men can differ, the jury determines whether the conduct has been extreme and
outrageous to result in liability. Otherwise stated, the court determines
whether severe emotional distress can be found; the jury determines whether on
the evidence it has, in fact, existed. [Citation.]” (Godfrey v.
Steinpress (1982) 128 Cal.App.3d 154, 173, 180 Cal.Rptr. 95.)
(Plotnik v. Meihaus (2012) 208 Cal.App.4th
1590, 1614.)
Here, the Court finds that Plaintiff’s allegations may
be reasonably regarded as extreme and outrageous; therefore, it is up to the
jury to determine whether the conduct was extreme and outrageous.
TENTATIVE RULING SEVENTH CAUSE OF ACTION
IIED
Defendants’
demurrer to the seventh cause of action for intentional infliction of emotional
distress is OVERRULED.
Twelfth Cause of Action –
Unpermitted/Illegal Unit in Violation of Common Law
Plaintiff’s
twelfth cause of action is titled “Unpermitted/Illegal Unit in Violation of
Common Law.” The allegations of the twelfth cause of action can be found in ¶¶
178-187 of the Complaint.
Plaintiff appears to be bringing this cause of action
based on alleged violations of Los Angeles Building Code 106.1 and 106.2.
Plaintiff alleges that the subject property is an unpermitted illegal unit
because the structure attached to the rear of the main house has not been
permitted and includes an illegal sunroom.
Defendants argue that Plaintiff’s twelfth cause of
action fails to state a cause of action because under Cohen v. Superior
Court of Los Angeles County (Schwartz), 2024 S.O.S. 1827, Div. Four of this
District’s Court of Appeal, violation of a municipal ordinance by way of a
civil action only permits city authorities, not private parties, to pursue
enforcement actions.
In Opposition, Plaintiff argues that common law cause
of action are recognized and can be pursued independently of statutory cause of
action.
Here, the Court finds Defendants’ argument availing
that Los Angeles Building Code §§ 106.1 and 106.2 does not provide a provide a
private right of action.
As a preliminary matter, Defendants cited to Cohen
v. Superior Court 102 Cal.App.5th 706 (Cohen).
The Court notes that for Cohen, review has been
granted, and the opinion directs readers to CRC, rules 8.1105 and 8.1115.
Further, the Court notes that Cohen is not
entirely on point. Cohen addresses whether or not Government Code §
36900(a) leaves the right to redress violations of municipal ordinances to
officials of the city under § 36900, or can anyone, including private citizens,
redress these violations.
Here, the instant matter does not deal with Government
Code § 36900(a).
However, Defendants’ argument as to whether or not
Plaintiff can bring this cause of action appears to be on point.
As stated in Lu v. Hawaiian Gardens Casino, Inc.:
A violation of a state statute does not
necessarily give rise to a private cause of action. (Vikco Ins.
Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62, 82
Cal.Rptr.2d 442 (Vikco ).) Instead, whether a party has a
right to sue depends on whether the Legislature has “manifested an intent to
create such a private cause of action” under the statute. (Moradi–Shalal
v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 305, 250
Cal.Rptr. 116, 758 P.2d 58 (Moradi–Shalal ) [no
legislative intent that Ins.Code, §§ 790.03 & 790.09 create
private cause of action against insurer for bad faith refusal to settle
claim]; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54
Cal.App.4th 121, 131, 135, 62 Cal.Rptr.2d 620 (Crusader ) [no
legislative intent that Ins.Code, § 1763 gave admitted insurers
private right to sue surplus line brokers].) Such legislative intent, if any,
is revealed through the language of the statute and its legislative history.
(See Moradi–Shalal, supra, 46 Cal.3d at pp. 294–295, 250
Cal.Rptr. 116, 758 P.2d 58.)
(Lu v. Hawaiian Gardens Casino, Inc. (2010) 50
Cal.4th 592, 596.)
Here, the Building Code can be found in Title 26 of
the Los Angeles County Code. In Section 104, which is named “Organization and
Enforcement” of Chapter 1 of Title 26 of the Building Code, in relevant part states:
The Building Official is hereby authorized
and directed to enforce all the provisions of this Code, including the
Electrical Code, the Plumbing Code, the Mechanical Code, the Residential Code,
the Existing Building Code, and the Green Building Standards Code, and to make
all inspections pursuant to the provisions of each such Code. For such
purposes, the Building Official shall have the powers of a law enforcement
officer.
(Title 26 Building Code,
Section 104.2.1.)
As indicated by Section
104.2.1, it does not appear as if the Building Code provides for Plaintiff here
to bring a private right of action based on violation of 106.1 and 106.2
because Section 104 indicates that the “Building Official” is the one
authorized to enforce provisions of this code.
Further, the penalty
provision located in Section 103.3 of Title 26 of the Building Code seems to
indicate that Plaintiff is not the one with the authority to bring this cause
of action. As stated in Section 103.3:
Any person, firm or corporation violating
any of the provisions of this Code shall be guilty of a misdemeanor, and each
such person shall be guilty of a separate offense for each and every day or
portion thereof during which any violation of any of the provisions of this
Code is committed, continued or permitted, and upon conviction of any such
violation such person shall be punishable by a fine of not more than $1,000,
(one thousand dollars) or by imprisonment for not more than six months, or by
both such fine and imprisonment. The provisions of this Section are in addition
to and independent of any other sanctions, penalties or costs which are or may
be imposed for a violation of any of the provisions of this Code.
(Title 26 Building Code,
Section 103.3.)
Here, the Court fails to
see how it has the authority in this unlimited civil action to determine if
Defendants are “guilty of a misdemeanor.”
Therefore, the Court
fails to see how Plaintiff has the ability to bring a private right of action
for violations of Los Angeles Building Code 106.1 and 106.2.
In Opposition, Plaintiff
argues that common law causes of action are recognized and can be pursued
independently of statutory causes of action. Plaintiff cites cases that state
that common law causes of action for fraud, breach of contract, and conversion do
not originate from statutes but instead measured by statutory standards.
Here, the Court does not
find Plaintiff’s argument availing.
The Court does not
dispute that Plaintiff can bring common law causes of action. However, the
twelfth cause of action does not appear to be bring a common law cause of
action. Even if it is bringing a common law cause of action, it is entirely
unclear what common law cause of action Plaintiff is trying to bring with respect
to the twelfth cause of action, as Plaintiff cites to violations of Los Angeles
Building Code 106.1 and 106.2.
Plaintiff’s citations in
Opposition to California Civil Code § 1752 and Cal. Bus & Prof. Code §
17511.10 are also unavailing. The Court fails to see how those citations are
relevant here.
Most telling about
Plaintiff’s Opposition is that Plaintiff argues that Plaintiff is not seeking
to enforce building codes directly but instead is resting her claims on
Defendants’ failure to provide a habitable dwelling, which Plaintiff is
alleging is a requirement under the implied warranty of habitability. Further,
Plaintiff’s Opposition states that Plaintiff is using the violations as
evidence to support the claim that Defendants breached their duty to provide a
safe and habitable rental unit. Plaintiff also argues that California Courts
have long recognized that violations of safety codes can be used to establish a
breach of the implied warranty of habitability.
This argument by
Plaintiff in Opposition seems to indicate that Plaintiff is simply trying to
allege a claim for breach of the implied warranty of habitability.
Therefore, this Court
finds Defendants’ argument availing that Plaintiff can not bring a private
right of action for violations of Los Angeles Building Code 106.1 and 106.2.
If Plaintiff is
attempting to bring a claim for breach of implied warranty of habitability, as
Plaintiff’s opposition indicates, Plaintiff should make these allegations in
Plaintiff’s cause of action for breach of the implied warranty of habitability.
TENTATIVE RULING
TWELFTH CAUSE OF ACTION
Defendants’
demurrer to the twelfth cause of action is SUSTAINED. Leave to amend is not
granted as to the twelfth cause of action. However, as Plaintiff’s Opposition
appears to indicate, if Plaintiff is simply trying to use the allegations in
the twelfth cause of action as part of Plaintiff’s basis for Plaintiff’s breach
of implied warranty of habitability claim, then Plaintiff should make those
allegations under its claim for breach of implied warranty of habitability. Therefore,
leave to amend is granted as to the second cause of action for tortious breach
of the warranty of habitability if Plaintiff is arguing that the allegations in
the twelfth cause of action form the basis for Plaintiff’s breach of the
implied warranty of habitability claim.
Request for Judicial Notice
Defendants
requested judicial notice of Cohen v. Superior Court of Los Angeles County
(Schwartz), 2024 S.O.S. 1827 (Second Appellate District, Division Four).
Defendants’ request for judicial notice is granted.
However, the Court notes that for Cohen, review
has been granted, and the opinion directs readers to CRC, rules 8.1105 and
8.1115 (and Comment on rule 8.1115(e)(3)).