Judge Bruce G. Iwasaki, Case Number: 23STCV14148, Date: 2023-11-29 Tentative Ruling

This case arises from a landlord-tenant dispute. On June 20, 2023, Plaintiffs Susan McCleary, Jada Fraser, Ricardo Wills and Johnny Parker filed their Complaint, alleging eleven causes of action: (1) Unlawful Actions by Landlord to Influence Tenant to Vacate [Civ. Code § 1940.2]; (2) Violation of Fair Employment and Housing Act [Gov. Code §§ 12955, 12989.1]; (3) Statutory Breach of the Implied Warranty of Habitability [Civ. Code §§ 1941, 1941.1 & 1942.4]; (4) Tortious Breach of the Implied Warranty of Habitability; (5) Breach of the Covenant of Quiet Enjoyment; (6) Breach of Contract; (7) Negligence; (8) Negligent Hiring, Training and Supervision; (9) Private Nuisance; (10) Intentional Infliction of Emotional Distress; and (11) Unfair Competition [Bus. & Prof. Code § 17200, et seq.].

On October 11, 2023, Cross-Complainant filed a First Amended Cross-Complaint (FACC), alleging causes of action for: (1) Breach of Contract; (2) Violation of California Civil Code 818 and 821, Committing Waste; (3) Breach of California Civil Code 3479, Private Nuisance; and (4) Negligence.

On June 20, 2022, Cross-Defendants Susan McCleary, Jada Fraser, Ricardo Wills and Johnny Parker (Cross-Defendants) demurred to the entire FACC. Cross-Defendants also moved to strike portions of the FACC. The Court sustained the demurrer to the second and third causes of action and sustained the demurrer to the first cause of action as to Cross-Defendant Wills only; the demurrer was overruled as to the remining issues. The motion to strike was granted in part and denied in part.

On December 28, 2023, Defendant and Cross-Complainant Vincent Hampton (Cross-Complainant) filed a Cross-Complaint alleging causes of action for: (1) Breach of Contract; (2) Violation of California Civil Code 818 and 821, Committing Waste; (3) Breach of California Civil Code 3479, Nuisance; and (4) Private Nuisance.

Cross-Defendants Susan McCleary, Jada Fraser, Ricardo Wills and Johnny Parker (Cross-Defendants) now demur to the first, second, and third causes of action in the Second Amended Cross-Complaint. Cross-Defendants also filed a motion to strike portions of the SACC. Cross-Complainant Vincent Hampton (Cross-Complainant) opposes the demurrer and motion to strike.

The demurrer is sustained in part without leave to amend and overruled in part. The motion to strike is granted.

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.)

Cross-Defendants demur to the first cause of action on the grounds that the SACC fails to state a claim.

To prevail on a breach of contract cause of action, a plaintiff must prove: (1) the existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) resulting damages to plaintiff. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

The SACC alleges Cross-Defendants breached the lease by committing waste, by failing to maintain the premises, by assigning and subletting the premises, and by making changes and alterations to the Property. (SACC ¶¶ 20-32.) Specifically, the FACC alleges that Cross-Defendants built a shed on the Property without Cross-Complainant’s approval and allowed or failed to prevent an elderly man from living in the shed. (SACC ¶¶ 12, 32.)

In the previous demurrer, Cross-Defendants argued that the pleadings failed to address who, how or what each Cross-Defendant did to fail to maintain the property in a good condition. Moreover, Cross-Defendants specifically argued the FACC failed to allege when the shed was installed. The Court, in considering this argument, found that, for pleading purposes, the FACC sufficiently identified the terms of the contract and how Cross-Defendants breached its terms. No greater particularity was required for pleading this claim. Thus, the Court overruled the demurrer to this cause of action on this ground. The Court then went on to sustain the demurrer as to Cross-Defendant Richard Wills/Ricardo Wills on the grounds that he was not identified as party in the lease agreement attached to the FACC. (FACC, Ex. A.) As such, Cross-Complainant had not alleged that this particular cross-defendant was a party to the contract.

Now, notwithstanding the Court’s ruling overruling the demurrer except as to Cross-Defendant Richard Wills/Ricardo Wills, Cross-Defendants argue that the SACC’s allegations that Cross-Defendants had to comply with the California Code of Civil Procedure and the lease “is not adequate for a breach or consideration because Cross-Defendants were required to comply with the California Code of Civil Procedure with or without a contract.” (Dem. 9:17-21.)

This demurrer argument is not well-taken. Even assuming Cross-Defendants’ argument as to the Code of Civil Procedure was correct, the Court cannot sustain a demurrer to part of the breach of contract cause of action. As with the FACC, the SACC sufficiently states a claim for a breach of written contract. (SACC ¶¶ 20-32.)

Cross-Complainant also now alleges the existence of implied in fact contract with Cross-Defendant Wills based on Cross-Defendant Wills’ alleged possession of the shed. (SACC ¶ 33.)

A contract is implied-in-fact when its existence and terms are manifested by the parties' conduct. (Civ. Code, § 1621.)

Here, the pleadings only show that Cross-Defendant Wills is in possession of the shed. (SACC ¶¶ 32-33.) This allegation is insufficient to plead the existence of an implied-in-fact contract where there is nothing alleged regarding the parties’ conduct that would create a contract between the parties.

The demurrer to the first cause of action is sustained as to Cross-Defendant Wills without leave to amend.

Cross-Defendants argue the second cause of action fails because Cross-Complainant failed to satisfy all of the elements for a cause of action claiming waste.

To assert a claim of waste, first, a plaintiff must prove the defendant is under a duty to preserve and protect the property involved. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 1000.) Additionally, a plaintiff must show damage to the property was sufficiently substantial and permanent to cause injury to its interest in the property. (Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1213.) In particular, damage is only deemed substantial and permanent if there is a “substantial depreciation in the market value” of the property. (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 776.)

The defect in the SACC’s claim continues to be the failure to plead facts showing a “substantial and permanent” injury to real property that results in a permanent depreciation of the market value of the Property.

That is, the SACC only alleges that Cross-Complainant observed on several occasions an elderly man living in the backyard of the Property in a “collapsing” shed which was never approved, maintained or placed by the Cross-Complainant; further, this elderly man was found defecating and urinating in the backyard. (SACC ¶ 55.) Cross-Complainant’s claim cannot survive demurrer by alleging in a conclusory manner that “[d]ue to the negligence caused by Cross-Defendants, they have caused substantial and permanent damage amounting to a “substantial depreciation in the market value” of the property.” (SACC ¶ 58.) This allegation lacks any ultimate facts in support and fails to address the “permanent” requirement of waste.

Thus, these allegations do not demonstrate a “substantial and permanent” injury to real property and is unlikely to have a permanent depreciation of the market value of the Property. The demurrer to the cause of action for waste is sustained without leave to amend.[1]

The elements of an action for private nuisance are: (1) the plaintiff must prove an interference with his use and enjoyment of its property; (2) the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage; and (3) the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

In El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, the court held that a nuisance claim for toxic mold contamination could not exist separate from the plaintiff's negligence claim. (Id. at p. 1348.) The court explained that the definition of nuisance is “so broad that it could be “ ‘applied indiscriminately to everything.” ’ ” (Id. at p. 1348 [quoting City of San Diego v. U.S. Gypsum Co. (1995) 30 Cal.App.4th 575, 585].) The court explained that permitting traditional torts to be litigated as nuisance claims “would allow nuisance to “ ‘become a monster that would devour in one gulp the entire law of tort.” ’ ” (El Escorial, at p. 1348.)

In El Escorial, the “factual allegations incorporated into the nuisance cause of action involved negligence and defective workmanship.” The court concluded that, “[w]here negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial, supra, 154 Cal.App.4th at p. 1349; see Melton v. Boustred (2010) 183 Cal.App.4th 521, 542–543 [nuisance claim failed with negligence claim where the nuisance claim relied on the same facts].)

The importance of preventing the broad label of “nuisance” from swallowing the elements of a negligence claim is particularly pronounced here, where, in contrast to a negligence claim, liability for nuisance does not depend on a defendant's ability to control the property creating the nuisance. (See Melton, supra, 183 Cal.App.4th at p. 542.) That is, nuisance liability “does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.)

The demurrer here argues that the claims for nuisance and negligence arises out of the same purported breach of due care to maintain the premises. (Compare SACC ¶¶ 60, 67-70 [nuisance claim] with ¶¶ 72, 81-86 [negligence claim].)

“Cross-Defendants also demurrer that the cause of action for private nuisance and negligence are duplicative but fails to allege appropriate case law substantiating the allegation. The case law referenced by Cross-Defendants is regarding an action for nuisance and negligence. Here, CrossComplainant has not pleaded a cause of action for negligence and is not attempting to introduce a cause of action based on inapplicable facts. Moreover, Cross-Complainant is alleging that the set of facts referenced in the Cross Compliant has violated four separate causes of action, each on their own merits.” (Opp. 7:3-10.)

The two claims are duplicative, relying on the same set of facts. Accordingly, the demurrer to the third cause of action is sustained without leave to amend.

“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.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

Cross-Defendants move to strike the request for treble damages and punitive damages in the SACC.

As the Court has sustained the demurrer to the second and third causes of action, the motion to strike is granted as to the request for treble damages pursuant to Code of Civil Procedure section 732 under the cause of action for waste.

Moreover, with respect to the punitive damages request, Cross-Complainant has again failed to plead the request for these damages with the heightened particularity required for pleading punitive damages.

Punitive damages are recoverable where the defendant has been guilty of oppression, fraud, or malice, express or implied. (Civ. Code, § 3294.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation our outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Specific intent to injure is not necessary for a showing of malice—it is sufficient that the defendant’s conduct was so “wanton or so reckless as to evince malice or conscious disregard of others’ rights.” (McConnell v. Quinn (1925) 71 Cal. App. 671, 682.)

A request for punitive damages that is not supported with specific allegations of oppression, fraud, or malice is subject to a motion to strike. Conclusory allegations that defendants acted “willfully,” “maliciously,” or with “oppression, fraud, or malice” are not, without more, sufficient to give rise to a claim for punitive damages, but such language is permissible where the complaint contains sufficient factual support for the conclusions. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

The SACC only alleges that Cross-Defendants failed to maintain the property by erecting a shed on the Property. There are no allegations showing any wanton, willful or fraudulent conduct. Thus, the request for punitive damages must be struck from the SACC.

Accordingly, the motion to strike is granted as to the request for treble damages and punitive damages.

The demurrer to the Second Amended Cross-Complaint is sustained as to the second and third causes of action and sustained as to the first cause of action as to Cross-Defendant Wills only. The motion to strike is granted. Cross-Complainant shall not have leave to amend.

Cross-Defendants’ Answer to the Second Amended Complaint shall be served and filed on or before March 29, 2024.

[1] As a final note, as the Court previously explained on the demurrer to the FACC, this cause of action’s citations to Civil Code section 818, 821 and 732 appears unrelated to a claim for waste, rendering the label somewhat confusing. Instead, it appears that Cross-Complainant intended to cite the Code of Civil Procedure instead. The SACC fails to correct this error.