Judge Bruce G. Iwasaki, Case Number: 23STCV30926, Date: 2024-05-03 Tentative Ruling

Opposing Party: Plaintiffs Latisha Phillips, Lonella Ballard, Ishmael Ballard, Isaish Ballard, Isaac Ballard

Tentative Ruling: The Demurrer to the Complaint is overruled to the first, second, third fourth, seventh, and eighth causes of action, and is sustained as to the fifth and sixth causes of action.

This is a landlord-tenant habitability case. The Complaint alleges causes of action for (1.) breach of implied warranty of habitability; (2.) breach of statutory warranty of habitability; (3.) breach of the covenant of quiet enjoyment; (4.) negligence, (5.) violation of Civil Code section 1942.4; (6.) private nuisance; (7.) violation of tenant anti-harassment ordinance; and (8.) violation of unfair competition law.

Defendant Innes Heights LP demurs to the entire Complaint. Plaintiff opposes the 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.)

As a preliminary matter, in its demurrer, Defendant argues that the Complaint fails to allege whether the lease agreement was written or oral and fails to state the specific terms of the agreement. However, Defendant has not identified any cause of action that requires specifically pleading these allegations. Plaintiff has not alleged a breach of contract. Thus, this argument is irrelevant.

“The elements of [a breach of implied warranty of habitability] claim 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. [Citation.]” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

The demurrer to this cause of action argues that the Complaint fails to allege that Plaintiff’s unit substantially lacked any of the characteristics found in Civil Code 1941.1. Specifically, Defendant argues that because a landlord is not required to keep the unit “perfect” (Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 637 [“The implied warranty of habitability does not require that a landlord ensure that the premises were in perfect, aesthetically pleasing condition.”]), the Complaint’s reliance on the allegations that the unit was “defective” are inadequate and renders the claim uncertain and ambiguous.

This argument is not well taken. The Complaint alleges numerous specific factual deficiencies, including but not limited to “rodent infestation and rodent harborages,” “cockroaches, flea, mite, bedbug or another vermin infestation” and the existence of defective “smoke detectors, automatic sprinkler systems, and standpipe systems.” (Compl., ¶ 9.) Without question, if true, the conditions as alleged would affect the habitability of the apartment and constitute a violation of Civil Code section 1941.1; a violation of that section or another “statutory housing standard that affects health and safety is a strong indication of a materially defective condition.” (Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891.)

The demurrer repeats the arguments made with respect to the first cause of action. (Dem., 7:22-8:8.) Thus, the demurrer to this cause of action fails for the same reasons as the first cause of action.

Defendant also suggests that Plaintiff fails to note when the alleged deficiencies occurred and suggests that the claim may run afoul of the four years statute of limitations for a written contract or two years statute of limitations for an oral contract. However, as noted above, Plaintiff has not alleged a breach of contract claim and Defendant cites no legal authority that Code of Civil Procedure sections 337 and 339, subdivision (1) should apply to this claim. Moreover, a demurrer is not well taken where the statute of limitations defect does not appear on the face of the pleadings. As the demurrer concedes, Plaintiff has not alleged when the deficiencies occurred.[1] (Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [It is proper to sustain a demurrer to a claim that is “clearly and affirmatively” time-barred “on the face of the complaint”].)

The covenant of quiet enjoyment arises impliedly between a landlord and tenant and affords the tenant quiet enjoyment and possession of the premises. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588; Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291–292.) “The covenant of quiet enjoyment ‘insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purpose contemplated by the tenancy.’” (Ibid.) The covenant is partially codified in Civil Code section 1927.

Conduct that violates the covenant includes using or threatening to use “force, willful threats, or menacing conduct constituting a 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.” (Civ. Code, § 1940.2, italics added.) “Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be actionable, the landlord’s act or omission must substantially interfere with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Andrews v. Mobile Aire Estates, supra, 125 Cal.App.4th at p. 589.)

As noted in the causes of action above, the factual allegations in the Complaint demonstrate a substantial interference with Plaintiffs’ right to use and enjoy the premises; as such, the Complaint sufficiently alleges facts to state a claim for breach of quiet enjoyment. (Compl., ¶ 9.)

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co.¿(2006) 137 Cal.App.4th 292, 318.) “A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises.” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.)

Although the notice in the demurrer specifically demurs to this cause of action, the demurrer itself does not make any specific arguments challenging the allegations to this cause of action. Thus, to the extent that Defendant demurs to the fourth cause of action, the demurrer is overruled.

Section 1942.4 prohibits a landlord from demanding rent, collecting rent, issuing a notice of a rent increase, or issuing a three-day pay rent or quit if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

Here, the Complaint alleges Defendant violated Civil Code section 1942.4 by not correcting conditions cited by government housing enforcement agencies within 35 days of issuance of the citation, including but not limited to, the following: a. A Courtesy Notice to Abate for Complaint No. CO0236998 issued by the County of Los Angeles Department of Public Health on December 12, 2020. b. A Notice and Order to Comply for Case No. 784231 issued by the Los Angeles Housing and Community Investment Department on August 30, 2021. (Compl., ¶ 31.)

The demurrer contends that “the Complaint is silent as to the nature of the condition, and more importantly, that these conditions related to plaintiffs’ rented unit or a common area.” (Dem., 9:11-13.)

The demurrer is well taken; the Complaint does not attach these notices or otherwise allege facts that the subject notices pertained to Plaintiffs’ unit or shared common areas. As such, Plaintiffs have not pled facts sufficient to show a statutory violation.

Thus, the demurrer to the fifth cause of action is sustained with leave to amend.

The demurrer contends that Plaintiffs’ nuisance cause of action is “merely a clone” of the other causes of action, specifically the negligence cause of action.

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 arise out of the same purported breach of due care to maintain the premises. That is, the claims are based on an identical set of facts. (Compare Compl., ¶¶ 9, 25-29 [negligence claim] with ¶¶ 34-37 [nuisance claim].) The demurrer is well taken.

Accordingly, the demurrer to the sixth cause of action is sustained with leave to amend.

A cause of action under the City of Los Angeles’ Tenant Anti-Harassment Ordinance (codified at Los Angeles Municipal Code section 45.33) requires that the landlord “knowingly and willfully” engaged in a “course of conduct directed at a specific tenant or tenants that caused detriment and harm, and that serves no lawful purpose.” (LAMC § 45.33.)

The demurrer argues the Complaint’s allegations are vague and insufficient to state a claim. Specifically, the demurrer notes that “Complaint alleges a request for repairs and maintenance, but not what the conditions were that required this work” and “[t]he Complaint fails to state that the conditions were of Plaintiffs’ apartment or what part of the common area.” (Dem., 10:28-11:2.)

The Complaint here alleges numerous defects with the property and further alleges that Plaintiffs have notified Defendants in writing concerning requested repairs and maintenance of the building, but Defendant has refused to make reasonable repairs or maintenance. (Compl., ¶ 39.) While the Complaint is vague as to the specific requests made for repairs and the circumstances of the allegedly harassing behavior, it sufficiently pleads ultimate facts. (Compl., ¶ 39.)

Eighth Cause of Action for Violation of Unfair Competition Law, Business and Professions Codes § 17200-17209

The UCL defines unfair competition as “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code § 17200.) A business practice need only satisfy one of the three criteria—unlawful, unfair, or fraudulent—to be considered unfair competition. (McKell v. Wash. Mut., Inc. (2006) 142 Cal.App.4th 1457, 1470-1471.)

Here, the Complaint alleges a violation of Business and Professions Code section 17200 on the grounds that “it is the regular practice of Defendants to intentionally disregard the rights of tenants and violate applicable laws relating to tenancies in their buildings in ways that include, but are not limited to, failing to provide quiet enjoyment, failing to abate nuisances, and allowing the defects identified herein to continue to exist in contravention of habitability laws ” (Compl., ¶¶ 44-45.)

This claim is derivative of Plaintiffs’ other substantive causes of action, and thus “stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.” (Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 178; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1185.)

The demurrer to the Complaint is overruled to the first, second, third, fourth, seventh, and eighth causes of action. It is sustained as to the fifth and sixth causes of action. Plaintiff shall have leave to amend. The amended complaint shall be filed and served on or before June 3, 2024.

[1] Lastly, in opposition, Plaintiffs also assert that their claims are subject to the continuing violation doctrine. “The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.)