Judge Bruce G. Iwasaki, Case 22STCV15100 2022-07-26 Tentative Ruling

Moving Party: Defendants Marina Pacific Associates and E&S Ring Management Corp.

Tentative Ruling: The demurrer is overruled in its entirety. The motion to strike is denied as to punitive damages. Defendants are ordered to file an Answer within 20 days.

The Court exercises its discretion to strike portions of the Complaint that are improper and factually unsupported.

This is a case alleging issues of habitability caused by ventilation defects in an apartment unit. Defendants, the owner and property manager, filed a demurrer against Plaintiff for failure to sufficiently allege outrageous conduct to support her claim for intentional infliction of emotional distress. The Court overrules the demurrer and denies the motion to strike.

Heather Krug (Plaintiff) filed a complaint against Marina Pacific Associates and E & S Ring Management Corp. (Defendants) for (1) tortious breach of implied warranty of habitability, (2) negligence, (3) intentional infliction of emotional distress, (4) constructive eviction, (5) violation of Los Angeles County Ordinance section 8.52.010 et seq., and (6) violation of Business and Professions Code section 17200.

The Complaint avers that Defendants failed to inspect, address, and abate the ventilation system in Plaintiff’s apartment, which was releasing fiberglass dust, debris, and loose asbestos particles. Plaintiff alleged that she began experiencing migraines in 2016 and discovered that it was connected to turning on the heat in the unit.

Defendants sent workers to clean the vents in response to Plaintiff’s request. On January 7, 2022, Plaintiff alleged that “[i]n their attempt to clean the ventilation system, one of the workers was exposed to fiberglass and other debris which shot out of the vents. The worker started coughing uncontrollably and appeared to cough blood onto Plaintiff’s walls. The workers informed Ms. Krug that her vents had never been cleaned and contained fiberglass.”

Despite Plaintiff’s request for professional environmental cleaners, Defendants continued to send its own workers to clean the vents. At one point, Defendants’ counsel allegedly offered Plaintiff the opportunity to break the lease in exchange for a full release of all claims.

On March 4, 2022, Defendants informed Plaintiff that the asbestos was removed, and the unit’s air ducts were replaced. A few weeks later, the Gas Company’s technician turned on the vents and dust and debris spewed out of the vents. Plaintiff permanently vacated the property on April 3, 2022.

Defendants demur to all causes of action for uncertainty and insufficiently pleaded facts. Plaintiff opposes and asserts that the Complaint sufficiently pleads ultimate facts. The reply reiterates the moving paper’s arguments.

Defendants also seek to strike several paragraphs in the Complaint that request punitive and exemplary damages.

Defendants averred that they sufficiently met and conferred with Plaintiff through e-mail correspondence and telephone conference. (Hilgers Decl., ¶ 4.)

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.) The court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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.) The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”¿ (Code Civ. Proc., § 437.)¿¿¿

Defendant argues that the Complaint’s allegations do not describe extreme and outrageous conduct and that it fails to allege any emotional distress.

A cause of action for 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 plaintiffs 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, 1050-1051, internal quotations omitted.) A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Ibid.) The defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Ibid.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Ibid.)

Generally, whether the conduct is outrageous is a question of fact. (So v. Shin (2013) 212 Cal.App.4th 652, 672; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045.)

The Complaint adequately pleads Defendant’s outrageous conduct. Plaintiff alleges that her ventilation ducts contained fiberglass debris and asbestos particles. (Complaint, ¶ 1.) She requested Defendants to inspect and clean the air ducts on multiple occasions: on December 30, 2021, January 7, January 9, January 13, January 31, and March 21, 2022, before being constructively evicted on April 2, 2022. (Id. at, ¶¶ 13, 15, 16, 20, 26, 36 ,40.) Defendants did not properly perform the cleaning and refused to hire professional environmental cleaning companies. (Id. at ¶¶ 42(a)-(f).) Defendants failed to properly clean the vents even after receiving Plaintiff’s multiple complaints and having full knowledge of the defective ventilation. (Id. at ¶¶ 47, 48, 56, 57.) Further, when Plaintiff requested to move to a different unit, Defendant refused and merely offered another unit in the same building. (Id. at ¶¶ 23, 24.) Plaintiff alleged a series of deficient responses by Defendants despite Plaintiff’s repeated complaints of the defective cleanings. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 912-913, 922 [finding that for demurrer purposes, it is sufficient for plaintiff to allege that defendant had actual and constructive notice of the violations and “failed to correct them after passage of a reasonable time”].)

Resolution of the issue on whether Defendants’ conduct was “outrageous” is a factual matter. Thus, Defendants’ contention that they responded promptly and reasonably to Plaintiff’s request should not be resolved on demurrer and the Court does not evaluate the veracity of these statements in the Complaint. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 [“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct”].)

Plaintiff has also sufficiently alleged emotional distress caused by her deteriorating health, which has led to “anxiety, fright, sleeplessness, depression, worry and fatigue.” (Complaint, ¶¶ 10, 11, 43, 71.) While Defendants argue this is too generalized, their supported cases all deal with resolution of the emotional distress damages at judgment. (Girard v. Ball (1981) 125 Cal.App.3d 772, 776 [appeal from summary judgment]; Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376 [citing Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376]; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 978 [appeal from court judgment].) That is not the proper standard at the pleading stage.

Accordingly, the demurrer is overruled as to the third cause of action for intentional infliction of emotional distress.

Fifth Cause of Action for Violation of Los Angeles County Code Section 8.52.010 et seq.

The fifth cause of action alleges violation of Los Angeles County Code section 8.52.010 et seq., which prohibits interference with a tenant's right to quiet enjoyment, by coercing Plaintiffs into moving or wrongfully evicting Plaintiff. Section 8.52.130, subdivisions (B)(2)(a)-(c) specifically prohibit certain actions in bad faith, including failing to perform repairs or exercise due diligence in completing repairs.

Defendants demur to this on the same basis as the intentional infliction of emotional distress. For the above reasons, this demurrer is similarly overruled.

Exemplary damages are available for claims of intentional infliction of emotional distress, breach of the implied warranty of habitability, and constructive eviction. (Spinks v. Equity Residential Briarwood Apartments, supra, 171 Cal.App.4th at p. 1055; Stroiber v. Honeychuck, supra, 101 Cal.App.3d at pp. 918-919, 926.)

The complaint need only allege ultimate facts supporting oppression, fraud, or malice. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055; Clauson v. Superior Court, supra, 67 Cal.App.4th at p. 1255. Thus, “a general allegation of [wrongful] intent is sufficient to support a claim for exemplary damages. (Unruh v. Truck Ins. Exch. (1972) 7 Cal.3d 616, 632, superseded by statute on other grounds as stated in Hendy v. Losse (1991) 54 Cal.3d 723, 732, n. 6.)

As discussed above, Plaintiff sufficiently pled a claim for intentional infliction of emotional distress. Defendants do not challenge the sufficiency of the other causes of action. (Pierson v. Sharp Memorial Hospital. (1989) 216 Cal.App.3d 340, 342 [“a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer”].)

Exemplary damages are typically not available for negligence causes of action. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) However, when viewed as a whole, Plaintiff has adequately pled that Defendants’ conduct was “oppressive, fraudulent or malicious” under Civil Code section 3294, subdivision (a) for exemplary damages. Plaintiff alleged that Defendants repeatedly failed or delayed making necessary repairs. (Complaint, ¶¶ 45, 55, 57 60; Penner v. Falk (1984) 153 Cal.App.3d 858, 867 [“To support an award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff ‘must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences’ ”].)

Consequently, the motion to strike the paragraphs regarding punitive and exemplary damages is denied.

However, Paragraphs 8 (p. 3:15), 9 (p. 3:22-23), 60 (p. 12:26-27), 67 (p. 14:6), 70 (p. 14:25), and 72 (p. 15:8) contain references to the Plaintiff as being elderly and disabled and mentions an “elevator at the Property” that were not otherwise been discussed throughout the Complaint. The Court exercises its discretion to strike these allegations for lack of factual support. (Code Civ. Proc., § 436, subd. (a).)

In sum, the Court overrules the demurrer and denies the motion to strike punitive damages. The Court strikes portions of the Complaint improperly discussing an elevator on the Property and Plaintiff as being elderly and disabled.