Judge: Cherol J. Nellon, Case: 22STCV37724, Date: 2023-12-14 Tentative Ruling
Case Number: 22STCV37724 Hearing Date: December 14, 2023 Dept: 14
Edgar Cesareo vs. Bernardina Herrera
Case Background
Plaintiffs allege that they rented
a place that turned out to be uninhabitable.
On December
1, 2022, Plaintiffs filed their Complaint for (1) Breach of Contract, (2) Breach
of Implied Warranty of Habitability, (3) Nuisance, (4) Negligence, (5) Intentional
Infliction of Emotional Distress (“IIED”), (6) Wrongful Eviction, (7) Violation
of Civil Code § 789.3, and (8) Violation of Civil Code § 1950.5 against
Defendants Bernardina L. Herrera (“Herrera”) and DOES 1-100.
Jury Trial
is currently set for March 25, 2024.
(1) Demurrers
Defendant
Herrera now demurs to the entire complaint on the grounds that it fails to
state facts sufficient to support any cause of action and is uncertain.
Decision
The demurrer to the first and third causes of action is SUSTAINED,
with 20 days leave to amend.
The demurrer to the second, fourth, fifth, sixth,
seventh, and eighth causes of action is OVERRULED.
First Cause of
Action: Breach of Oral Contract
“’A cause of action for damages for breach of contract is
comprised of the following elements: (1) the contract, (2) plaintiff's
performance or excuse for nonperformance, (3) defendant's breach, and (4) the
resulting damages to plaintiff.’ (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388).” Rutherford
Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.
The complaint fails to completely allege the terms of the
contract. Plaintiffs should supply the address of the property and the agreed-upon
rent.
Second Cause of Action:
Breach of Implied Warranty
The warranty of habitability is a creature of statute.
More precisely, Civil Code § 1941 obliges a landlord to put their rental
units into a condition “fit” for the occupation of human beings. Civil Code
§ 1941.1(a) says that being “fit for the occupation of human beings”
includes various listed characteristics.
The elements of a claim for breach of the warranty of
habitability are: “[1] the existence of a material defective condition
affecting the premises' habitability, [2] notice to the landlord of the
condition within a reasonable time after the tenant's discovery of the
condition, [3] the landlord was given a reasonable time to correct the deficiency,
and [4] resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014)
226 Cal.App.4th 1281, 1297.
Plaintiffs have pled a material defective condition
(Complaint ¶ 10), notice to the landlord (Complaint ¶ 11), reasonable
time to cure (Complaint ¶ 12), and damages (Complaint ¶¶ 12-14). This
cause of action has been properly pled
Third Cause of Action:
Nuisance
Civil Code § 3479 defines a nuisance:
“Anything
which is injurious to health, including, but not limited to, the illegal sale
of controlled substances, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free
passage or use, in the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or highway, is a
nuisance.”
“A nuisance may be either a negligent or an intentional
tort.” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920. Plaintiffs
have pled this as both. (Complaint ¶ 30).
However,
a party may not plead nuisance under a negligence theory where they also plead
a claim for negligence. See El Escorial Owners’ Assn. v. DLC Plastering,
Inc. (2007) 154 Cal.App.4th 1337, 1348-49; see also Holcomb
v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 501 (duplicative
claims may be removed if they add no unique facts or theories to the case).
Plaintiffs
must plead this cause of action as an intentional tort only, or else remove it.
Fourth Cause of
Action: Negligence
“Actionable negligence is traditionally regarded as
involving the following: (a) a legal duty to use due care; (b) a breach of such
legal duty; (c) the breach as the proximate or legal cause of the resulting
injury.” Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th
1193, 1202.
Plaintiffs have pled a duty arising from Defendant’s
alleged ownership and management of real property (Complaint ¶¶ 37-39), a
breach by allowing certain conditions to occur on the property (Complaint
¶¶ 10, 40), and damages (Complaint ¶¶ 12-14, 42). This cause of
action is properly pled.
Fifth Cause of Action:
IIED
“The tort of intentional infliction of emotional distress
is comprised of three elements: (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 or extreme
emotional distress; and (3) the plaintiff's injuries were actually and proximately
caused by the defendant's outrageous conduct.” KOVR-TV, Inc. v. Superior
Court (1995) 31 Cal.App.4th 1023, 1028.
“Whether the defendant's conduct was outrageous and
whether the plaintiff's emotional distress was severe are generally questions
of fact.” Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 51. Such
questions are not suitable for resolution on demurrer.
Plaintiffs have pled that they were living in woefully
substandard conditions which Defendant refused to do anything about. (Complaint
¶ 45). Plaintiffs have also pled that they suffered severe emotional
distress in connection with those conditions. (Complaint ¶ 47). This cause
of action is properly pled.
Sixth Cause of Action:
Wrongful Eviction
The elements of a wrongful eviction tort claim are (1)
plaintiff’s peaceable possession of the premises and (2) defendant’s forcible intrusion
on that right of possession. Spinks v. Equity Residential Briarwood
Apartments (2009) 171 Cal.App.4th 1004, 1039-42.
Plaintiffs have pled that Defendant changed the locks on
them while they were still living in the property, forcing them to leave.
(Complaint ¶ 51-53). This cause of action is properly pled.
Seventh Cause of
Action: Violation of Civil Code § 789.3
Civil Code § 789.3 provides in relevant part as
follows:
“(a)
A landlord shall not with intent to terminate the occupancy under any lease or
other tenancy or estate at will, however created, of property used by a tenant
as his residence willfully cause, directly or indirectly, the interruption or
termination of any utility service furnished the tenant, including, but not
limited to, water, heat, light, electricity, gas, telephone, elevator, or
refrigeration, whether or not the utility service is under the control of the
landlord.
(b)
In addition, a landlord shall not, with intent to terminate the occupancy under
any lease or other tenancy or estate at will, however created, of property used
by a tenant as his or her residence, willfully:
(1)
Prevent the tenant from gaining reasonable access to the property by changing
the locks or using a bootlock or by any other similar method or device;
(2)
Remove outside doors or windows; or
(3)
Remove from the premises the tenant's personal property, the furnishings, or
any other items without the prior written consent of the tenant, except when
done pursuant to the procedure set forth in Chapter 5 (commencing with Section
1980) of Title 5 of Part 4 of Division 3.
…
(c)
Any landlord who violates this section shall be liable to the tenant in a civil
action for all of the following:
(1)
Actual damages of the tenant.
(2)
An amount not to exceed one hundred dollars ($100) for each day or part thereof
the landlord remains in violation of this section. In determining the amount of
such award, the court shall consider proof of such matters as justice may
require; however, in no event shall less than two hundred fifty dollars ($250)
be awarded for each separate cause of action. Subsequent or repeated
violations, which are not committed contemporaneously with the initial
violation, shall be treated as separate causes of action and shall be subject
to a separate award of damages.
(d)
In any action under subdivision (c) the court shall award reasonable attorney's
fees to the prevailing party. In any such action the tenant may seek
appropriate injunctive relief to prevent continuing or further violation of the
provisions of this section during the pendency of the action. The remedy
provided by this section is not exclusive and shall not preclude the tenant
from pursuing any other remedy which the tenant may have under any other
provision of law.”
Plaintiffs have alleged
that Defendant locked them out and removed their personal property. (Complaint
¶¶ 58-59). Plaintiffs have also alleged the requisite intent. (Id.). This
cause of action is properly pled.
Eighth Cause of Action:
Violation of Civil Code § 1950.5
Civil Code § 1950.5 provides in relevant part as
follows:
“(l)
The bad faith claim or retention by a landlord or the landlord's successors in
interest of the security [deposit] or any portion thereof in violation of this
section, or the bad faith demand of replacement security in violation of
subdivision (j), may subject the landlord or the landlord's successors in
interest to statutory damages of up to twice the amount of the security, in
addition to actual damages. The court may award damages for bad faith whenever
the facts warrant that award, regardless of whether the injured party has
specifically requested relief. In an action under this section, the landlord or
the landlord's successors in interest shall have the burden of proof as to the
reasonableness of the amounts claimed or the authority pursuant to this section
to demand additional security deposits.”
Plaintiffs have pled that they made a $2,000 security
deposit (Complaint ¶ 63), that they did no damage to the property and owed
no back rent to the Defendant (Complaint ¶ 65), but that Defendant kept the
entire deposit. (Complaint ¶¶ 64-67).
Other Arguments
Defendant takes the position that Plaintiff Edgar Cesareo
is an unlicensed contractor who was hired to do work at the property, but
instead moved in himself. Defendant also suggests that Plaintiffs were locked
out pursuant to a writ issued in an unlawful detainer case, bearing Case No. 21
PDUD 00313. These are factual contentions which the court cannot evaluate, one
way or another, on a demurrer. However, the court may take judicial notice of
its own records, and Plaintiffs’ names appear nowhere in the file for Case No.
21 PDUD 00313.
Conclusion
Plaintiffs need to plead
the terms of their contract. And they need to plead their nuisance claim with
more precision. Therefore, The demurrer to the first and third causes of action
is SUSTAINED, with 20 days leave to amend. The demurrer to the second, fourth, fifth, sixth, seventh, and
eighth causes of action is OVERRULED.
(2) Motion to Strike
Defendant Herrera now move this court for an order
striking the references to special damages, attorney’s fees, prejudgment
interest, and punitive damages from the complaint.
Decision
The motion is DENIED.
Special Damages
The term “special damages” means different things in
different contexts. In defamation cases, it is statutorily defined as damages
to a person’s “property, business, trade, profession, or occupation. Civil Code
§ 48a. In the worker’s compensation contexts, it may mean amounts in
addition to regular benefits. Scalice v. Performance Cleaning Systems
(1996) 50 Cal.App.4th 221, 230 fn.4.
Plaintiff has sought “special damages” in connection with
the first, second, third, fourth, fifth, and sixth causes of action. Defendant
moves to strike this request. Neither party properly explains to the court what
“special damages” means in each of the relevant contexts.
Defendant describes “special damages” as “those naturally,
but not necessarily resulting from the injury inflicted on the plaintiff.”
(Motion p. 5:11-13). But the case Defendant cites (without pointing the court
to any specific page), Emerald Bay Community Asson. V. Golden Eagle Ins. Corp.
(2005) 130 Cal.App.4th 1078, does not seem to support that
definition. Plaintiffs, for their part, cite Quevedo v. Braga (1977) 72
Cal.App.3d Supp. 1, which does not mention the term “special damages” at all.
Defendant Herrera is the moving party and bears the
burden of persuasion. If she cannot explain to the court what “special damages”
are, or why they should be stricken, they remain. This is an issue which may be
revisited after discovery, when the court and counsel have a better idea of
what amounts Plaintiff is seeking to recover and why.
Attorney’s Fees
As quoted above, Civil Code § 789.3(d) permits the
prevailing party to recover attorney’s fees. So the request for such fees is
valid.
Prejudgment Interest
This issue is premature. Prejudgment interest may be
awarded in tort and contract cases (Civil Code §§ 3287-3288) by the judge
or by a jury. See Michelson v. Hamada (1994) 29 Cal.App.4th
1566, 1586. But the court can only tell if such an award is warranted once the
facts are developed. And Plaintiff can only obtain an award of prejudgment
interest by making a specific motion or request, at or after trial. See North
Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824,
829-830. The court cannot properly decide this now.
Punitive Damages
Where a plaintiff has properly pled
intentional behavior in a habitability case, punitive damages are available.
See Civil Code § 3294(a) and (c)(1); Stoiber, supra, 101 Cal.App.3d
at 920. The availability of punitive damages in this case is better left for a
summary adjudication motion or a trial.