Judge: Barbara M. Scheper, Case: 23STCV07329, Date: 2023-08-31 Tentative Ruling
Case Number: 23STCV07329 Hearing Date: August 31, 2023 Dept: 30
Dept. 30
Calendar No.
Welch vs. Koutek, et. al., Case No. 23STCV07329
Tentative Ruling
re: Defendants’’ Demurrer to Complaint;
Motion to Strike
Defendants Norman W. Koutek and
Jamison Management Company (collectively, Defendants) demur to first, second,
third, fourth, and sixth causes of action in the Complaint of Plaintiff Ruby
Welch (Plaintiff), and move to strike portions of the Complaint. The demurrer
is overruled. The motion to strike is granted in part.
In reviewing the legal sufficiency of a complaint against a demurrer, a
court will treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a
complaint is tested against a general demurrer are well settled. We not only
treat the demurrer as admitting all material facts properly pleaded, but also
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Guclimane Co.
v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78
Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s
allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any
other extrinsic evidence or judge the credibility of the allegations plead or
the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint,
liberally construed, fails to state facts sufficient to constitute any cause of
action. (Kramer v. Intuit Inc. (2004)
121 Cal.App.4th 574, 578.)
Plaintiff’s Complaint brings claims
against Defendants, her landlord and landlord’s property manager, arising from
alleged habitability violations at Plaintiff’s apartment in Hawthorne,
California. (Comp. ¶ 2.) Plaintiff alleges that a wall furnace heater in the
apartment has been leaking excessive amounts of carbon monoxide for at least
four years; the gas company red-tagged the heater for carbon monoxide in
December 2022, and Defendants have never serviced the heater. (Comp. ¶ 11a.) In
addition, the apartment has been subject to “chronic rainwater leaks and
excessive moisture and potential mold growth. (Comp. ¶ 11b.) Plaintiff alleges
that she and other tenants have repeatedly complained to Defendants about these
issues, but that those complaints were ignored. (Comp. ¶ 13.)
Plaintiff asserts six causes of
action against Defendants for (1) Breach of Implied Warranty of Habitability;
(2) Tortious Breach of Implied Warranty of Habitability; (3) Negligence; (4)
Intentional Infliction of Emotional Distress; (5) Private Nuisance; and (6)
Violation of Bus. & Prof. Code § 17200.
Breach of Implied Warranty of Habitability; Tortious
Breach of Implied Warranty of Habitability
Defendant states that Plaintiff’s
first and second causes of action are duplicative of one another, but presents
no further argument or authority in support of this claim. In light of the lack
of support, the Court declines to consider the argument.
Defendant also argues that Plaintiff
has failed to plead supporting facts with sufficient specificity. “The elements of a cause of action for breach of the
implied warranty of habitability ‘are the existence of a material defective
condition affecting the premises' habitability, notice to the landlord of the
condition within a reasonable time after the tenant's discovery of the
condition, the landlord was given a reasonable time to correct the deficiency,
and resulting damages.’ ” (Peviani v. Arbors at California Oaks Property
Owner, LLC (2021) 62 Cal.App.5th 874, 891.)
Here, Plaintiff has alleged the
existence of material defective conditions affecting her apartment, the heater
and rainwater leaks. (Comp. ¶ 11.) Plaintiff alleges that “[she] and other past
and current tenants of the Property have repeatedly complained to Defendants
about the above defects,” but that Defendants have not remedied the conditions.
(Comp. ¶ 13.) The wall furnace was discovered as defective in December 2022,
and the water leaks have allegedly affected the apartment continuously during
Plaintiff’s occupancy. (Comp. ¶ 11.) The Court finds these allegations
sufficient to support Plaintiff’s claims for statutory and tortious breaches of
the implied warranty of habitability. Defendant shows no authority suggesting
that Plaintiff must plead the specific dates on which she notified her landlord
in order to state her habitability claims. (See Stoiber
v. Honeychuck (1980) 101 Cal.App.3d 903,
912 [overruling demurrer to habitability claim where plaintiff “alleged that she had repeatedly notified both [landlord]
and [property manager] of defective conditions, and that no effort was made to
repair the defects”].)
Third Cause of Action for Negligence
Plaintiff’s negligence claim is based
on Defendants’ alleged breach of their “duty to Plaintiff to operate, manage,
and repair the Property consistent with the terms of the Plaintiff’s lease, the
warranty of habitability implied in all residential leases, and applicable
law.” (Comp. ¶ 34.)
Defendants argue that Plaintiff has
failed to plead that she notified Defendants in a reasonable amount of time
after discovery and that Defendants failed to timely address the issues. Again,
the Court finds that Plaintiff has sufficiently pled those facts (Comp. ¶ 13.)
Fourth Cause of Action for Intentional Infliction
of Emotional Distress
“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.” (Christensen
v. Superior Court (1991) 54 Cal.3d 868, 903.)
Outrageous conduct “must be so
extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197,
209.) In order for conduct to be outrageous, there must be (1) a specific
intent to injure, or (2) a reckless disregard of the substantial certainty of a
severe emotional injury. (Id. at 210 [“Absent an intent to injure,
such inaction is not the kind of ‘extreme and outrageous conduct’ that gives
rise to liability under the ‘intentional infliction of emotional
distress’ tort”]; Christensen v. Superior
Court, supra, 54 Cal.3d at 903 [“substantially certain to cause
extreme emotional distress”].)
It is the specific intent to harm or
the reckless disregard of a substantial certainty of severe injury that
distinguishes intentional infliction of emotional
distress from negligent infliction of emotional
distress. (Christensen v. Superior Court, supra, 54 Cal.3d at
904.) “The conduct must be such that it would cause an average member of the
community to immediately react in outrage.” (Gormon v. TRW, Inc.
(1994) 28 Cal.App.4th 1161, 1172.)
Here, Defendants’ alleged failures to
remedy the carbon monoxide leak and water damage are sufficient to support a
claim for IIED. (Comp. ¶¶ 11, 13.) Plaintiff alleges that she has suffered
significant health impacts, including severe emotional distress, as a result of
Defendants’ failure to remedy the conditions. (Comp. ¶ 15.) Defendants’ alleged
misconduct constitutes “a reckless disregard of the substantial certainty of a
severe emotional injury” (Davidson, supra, 32 Cal.3d at 210), and
so is sufficient to support a cause of action for IIED for purposes of
pleading. Whether the alleged conduct was so “extreme and outrageous” as to
cause severe mental distress is a question of fact not resolvable here. (Stoiber, 101 Cal.App.3d at 911, 921 [finding
tenant’s IIED claim against landlord sufficiently pled based on alleged “dilapidated
and unsafe condition of the rented premises”]; Erlach
v. Sierra Asset Servicing, LLC (2014) 226
Cal.App.4th 1281, 1298-99 [whether landlord’s alleged acts of turning off
utilities and failing to allow tenant to return to property were so extreme and
outrageous to support IIED claim was a factual issue not resolvable on
demurrer].)
Sixth Cause of Action for Violation of Bus. &
Prof. Code § 17200, et seq.
California’s
Unfair Competition Law (UCL) prohibits unlawful, unfair, or fraudulent business
acts or practices. (Bus. & Prof. Code, § 17200 et seq.) “An
‘unlawful business activity’ includes ‘anything that can properly be called a
business practice and that at the same time is forbidden by law.’” (People
v. McKale (1979) 25 Cal.3d 626, 632 [quoting Barquis v. Merchants
Collection Assn. (1972) 7 Cal.3d 94, 113].) “Virtually
any law or regulation—federal or state, statutory or common law, can serve as a
predicate for a Business and Professions Code section 17200 ‘unlawful’
violation. [Citation.]” (Paulus v. Bob Lynch Ford, Inc. (2006) 139
Cal.App.4th 659, 681 [internal quotations omitted].)
While
Defendants argue that Plaintiff has not pled facts in support of her UCL cause
of action, Defendants’ alleged violation of the implied warranty of
habitability suffices as a predicate.
Motion to Strike
Defendants first
move to strike various allegations that it contends are boilerplate. (Comp. ¶¶
13, 22, 27, 41-42.) Some of the allegations at issue plead facts, such as the
allegation that “Plaintiff and other past and current tenants of the Property
have repeatedly complained to Defendants…” (Comp. ¶ 13.) Others are simply
general allegations of intent, for example, that “Defendants’ conduct was
intentional and designed to extract rent from Plaintiff...” (Comp. ¶ 27.) These
allegations do not constitute “irrelevant, false, or improper matter[s],” and Defendants’
motion presents no reason for striking them. (Code Civ. Proc. § 436, subd.
(a).)
Defendants next move to strike Plaintiff’s
allegations in support of and prayers for punitive damages. (Comp. ¶¶ 31, 38,
43, 51, Prayer 4, 7, 10, 13.) Plaintiff seeks recovery of punitive damages
pursuant to the second, third, fourth, and fifth causes of action.
A plaintiff may recover punitive
damages in an action for the breach of an
obligation not arising out of contract where the defendant has been guilty of
oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” exists
when the defendant intends to cause injury to the plaintiff, or the defendant
engages in despicable conduct with willful and conscious disregard of the
rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “Oppression”
exists when the defendant in conscious disregard of a person's rights engages
in despicable conduct subjecting that person to cruel and unjust hardship. (Civ.
Code, § 3294, subd. (c)(2).)
Plaintiff cannot recover punitive damages pursuant
to her negligence claim, and so the motion is granted as to those allegations.
(Comp. ¶ 38, Prayer 7.) Otherwise, the allegations
that Defendant had knowledge of and failed to remedy the carbon monoxide leak
and water damage are sufficient to support recovery of punitive damages. Given
that Defendant’s alleged conduct is sufficiently outrageous to state a cause of
action for IIED, “[i]t cannot be said as a matter of law that the alleged
behavior was not so ‘vile,’ ‘base,’ or ‘contemptible’ that it would not be ‘looked
down upon and despised by ordinary decent people.’ ” (Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1228 [denying motion to strike punitive
damages in connection with IIED claim].) Accordingly, the motion is denied as
to the remaining allegations related to punitive damages. (Comp. ¶¶ 31, 43, 51,
Prayer 4, 10, 13.)
Finally, Defendants move
to strike Plaintiff’s allegations relating to recovery of attorney’s fees.
(Comp. ¶¶ 22, 32, 39, 44, 52, 60, Prayer 2, 5, 8, 11, 14.) Under each of her
six causes of action, Plaintiff alleges, “Subject to the terms of Plaintiff’s
lease and/or applicable law, Plaintiff is entitled to an award of attorney's
fees and costs.”
“[A]s a general rule, attorney fees are not
recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v.
Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) The
Court agrees with Defendants that the Complaint shows no basis for recovery of
attorney’s fees under any cause of action. In opposition to Defendants’ motion,
Plaintiff states that she is not in possession of her lease but believes that
there is an attorney fee provision therein. (Opposition p. 7.) Clearly, this
fails to support recovery of attorney’s fees under the facts pled. The motion
is therefore granted as to the prayers for attorney’s fees and related
allegations.