Judge: Bruce G. Iwasaki, Case: 22STCV10256, Date: 2022-09-28 Tentative Ruling

Case Number: 22STCV10256    Hearing Date: September 28, 2022    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             September 28, 2022

Case Name:                Katie Schwartz v. Elm Enterprises LLC, et al.

Case No.:                    22STCV10256

Motion:                       Demurrer and Motion to Strike

Moving Party:             Defendants Elm Enterprises LLC and Denmar Investment Co., Inc.

Opposing Party:          Plaintiff Katie Schwartz

Background

            This is a habitability case.  Katie Schwartz (Plaintiff or Schwartz) sues Elm Enterprises LLC and Denmar Investment Co., Inc. (Defendants) for breach of contract, breach of covenant of quiet enjoyment, breach of warranty of habitability, negligence, nuisance, trespass to land, tenant harassment, unfair business practices, intentional infliction of emotional distress, and retaliation/constructive eviction.

            Schwartz alleges that throughout her tenancy, her unit was in uninhabitable condition.  This included inadequate sanitation, vermin infestation, and structural hazards.  After she complained, Defendants allegedly retaliated against her by sending maintenance workers who did not follow COVID-19 protocols and changing her locks to prevent her from entering the unit.  Schwartz alleges that in September 2021, she was constructively evicted from the unit.

            Defendants demur to the seventh (tenant harassment), ninth (intentional infliction of emotional distress), and tenth (retaliation/constructive eviction) cause of action for uncertainty and insufficient facts.  Defendants’ counsel’s declaration satisfies the meet and confer requirement.  (Garcia Decl., ¶ 5.) 

            Defendants also seek to strike several paragraphs in the Complaint as to exemplary damages and attorney’s fees.

            Plaintiff opposes the demurrer and motion to strike, asserting that the Complaint sufficiently pleads facts.  Defendants’ reply reiterates the moving paper’s arguments.

            The Court overrules the demurrer. The motion to strike is granted only as to paragraph 61 of the Complaint, and is otherwise denied.

Demurrer

            A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452.)  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.) 

Uncertainty

            Defendant argues that causes of action demurred to are uncertain.  A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  The Complaint is not uncertain as the allegations are meaningfully and intelligibly discussed.

Seventh Cause of Action – Tenant Harassment

            Defendants argue that Plaintiff’s allegations for tenant harassment are duplicative of her claim for breach of the covenant of quiet enjoyment.  They argue this is insufficient to show that they “engaged in conduct with the intentional purpose of influencing Plaintiff to vacate the subject property.”

            Civil Code section 1940.2, subdivision (a) prohibits the following actions by a landlord to influence a tenant to vacate the property, including the following: 

(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code. 

(2) Engage in conduct that violates Section 518 of the Penal Code. 

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. 

(4) Commit a significant and intentional violation of Section 1954. 

(5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief. 

            The Court agrees that Plaintiff’s allegation that Defendants “used, threatened to use force, willfully threatened, and participated in menacing conduct” is insufficient to allege a violation of section 1940.2 and is conclusory.  (First Amended Complaint (Complaint), ¶ 100.) 

            However, Plaintiff also alleges that Defendants violated subdivision (a)(4), which is as to a violation of section 1954.  That statute prohibits a landlord from entering the dwelling unit except in limited cases.  Here, Plaintiff alleges that Defendants “and/or their agents entered the Subject Property without complying with California Civil Code § 1954 on multiple occasions.  (Complaint, ¶ 97.)  Defendants allegedly sent maintenance workers who entered the unit “without permission, proper notice, or following CDC guidelines.”  These workers “caused Plaintiff great amount anxiety [sic] and stress over her health and safety.”  (Id. at ¶ 91.)  This is sufficient.  The Court overrules the demurrer as to the seventh cause of action.

Ninth Cause of Action – Intentional Infliction of Emotional Distress

            Defendants argue that the allegations do not show extreme conduct, nor does Plaintiff allege emotional distress because this was a “common” dispute over repairs and maintenance between landlords and tenants. 

            Intentional infliction of emotional distress requires “(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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.”  (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

            Whether the alleged conduct is outrageous is usually a question of fact to be determined beyond the pleading stage.  (So v. Shin (2013) 212 Cal.App.4th 652, 672.)  Nevertheless, “many cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.”  (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356.)  Ordinarily, however, this is a factual inquiry not addressed in a challenge to the pleadings.  In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 912 (Stoiber), the plaintiff tenant alleged numerous defects, including leaking sewage, cockroach infestation, broken walls, defective wiring, and lack of plumbing.  The plaintiff alleged that defendant landlord failed to correct the conditions, except for one occasion when they sent a plumber in response to a complaint about the toilet.  (Id. at p. 913.)  Thus, the plaintiff alleged that defendant’s failure to remedy the defects were “knowing, intentional and willful,” and caused her extreme emotional distress.  (Id. at p. 913.)  The Court of Appeal held that alleging breach of the implied warranty of habitability “does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord’s acts are extreme and outrageous and result in severe mental distress. Whether this is so under the present allegations, presents a factual question it cannot be said as a matter of law that appellant has not stated a cause of action.”  (Id. at p. 922.)

            This case is analogous to Stober, supra, 101 Cal.App.3d at p. 922.  Here, Schwartz alleges a series of defects, including inadequate sanitation, vermin/rodent infestation, and chronic mold.  (Complaint, ¶¶ 17-22.)  She complained about these issues to Defendants, who “failed to address or abate the endemic problems plaguing the Subject Property.”  (Id. at ¶ 23.)  Defendants’ failure to cure these issues caused extreme stress to Plaintiff, including “mental anguish, anxiety, worry, fear, discomfort, loss of enjoyment of life, and humiliation.”  (Id. at ¶ 114.)  Defendants’ conduct allegedly caused Schwartz’s distress.  (Id. at ¶¶ 68, 115.) 

            Defendant’s reliance on Girard v. Ball (1981) 125 Cal.App.3d 772, 788, is inapposite because that case involved an appeal from summary judgment in which the trial court considered the factual circumstances. 

            Accordingly, the demurrer to the ninth cause of action is overruled.

Tenth Cause of Action – Retaliation/Constructive Eviction[1]

            Defendants argue that the Complaint contains no specific facts showing that they acted “willfully, knowingly, and purposefully.”

            “Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.”  (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1300.)

            Plaintiff has sufficiently alleged living conditions and the landlord’s failure to remediate those conditions.  (Complaint, ¶¶ 18-22, 28, 60, 65, 71, 86, 116, 119-120.)  The severity of these conditions allegedly forced Plaintiff to vacate the property.  (Id. at ¶ 121.).  The Court overrules the demurrer to the tenth cause of action.

Motion to Strike

            “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿ (Code Civ. Proc., § 436.)

            Defendants move to strike Paragraphs 61, 69, 70, 71, 72, 85, 86, 87, 88, 95, 117, 124 in the Body of the Complaint, and Paragraphs 4 and 5 in the Prayer for Relief.  The Paragraphs in the Body of the Complaint support the allegations of exemplary damages by alleging that Defendants’ conduct was oppressive, malicious, and willful.

            As to the Paragraphs of the Body of the Complaint, only Paragraph 61 is ordered stricken.  That Paragraph is under the second cause of action for breach of the covenant of quiet enjoyment for which exemplary damages are not allowed. (Ginsburg v. Gamson (2012) 205 Cal.App.4th 873, 896-897.)

            The motion to strike is denied as to all other Paragraphs in the body of the Complaint because exemplary damages are available for the other causes of action. (Smith v. David (1981) 120 Cal.App.3d 101, 112, n.3 [breach of warranty of habitability]; Stoiber, supra, 101 Cal.App.3d at p. 920, 926 [nuisance and constructive eviction]; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 [trespass and intentional infliction of emotional distress].)  Defendants do not demur to these other causes of action.

            The Court also denies the motion to strike the Paragraphs in the Prayer for Relief.  Paragraph 4 is for a prayer of exemplary damages on the entire Complaint.  Paragraph 5 requests attorney’s fees, which Plaintiff may be entitled to under Civil Code section 1942.4 and 1942.5.  Despite not alleging violations of section 1942.4 and 1942.5 as separate causes of action, the Complaint does sufficiently plead such facts.  (Complaint ¶¶ 26, 28-29, 124.)

Conclusion

            The demurrer is overruled in its entirety.  The motion to strike is granted only as to Paragraph 61 without leave to amend, but otherwise denied.