Judge Cherol J. Nellon, Case Number: 24STCV06971, Date: 2024-07-31 Tentative Ruling

Judge: Cherol J. Nellon, Case: 24STCV06971, Date: 2024-07-31 Tentative Ruling

Case Number: 24STCV06971 Hearing Date: July 31, 2024 Dept: 14

#11

Case Background

This is an action for breach of contract, breach of the covenant of quiet enjoyment, breach of the implied warranty of habitability, negligence, intentional infliction of emotional distress, violation of Business and Professions Code, section 17200, et seq., negligent infliction of emotional distress, violations of the FEHA, nuisance, and retaliation under Civ. Code, section 1942.5. Plaintiff alleges his unit was uninhabitable and that he suffered harassment and discrimination because he was Latino.

On March 20, 2024, Plaintiff Nelson Ordonez filed his Complaint against Larchmont Villas, LLC (Larchmont), Laurelwood Management, Inc. (Laurelwood), and Lisza Darling.

On June 12, 2024, Defendants filed this demurrer.

On July 17, 2024, Plaintiff filed an opposition.

On July 24, 2024, Defendants filed a reply.

Instant Pleading

Defendants demur to the Complaint and move to strike Plaintiff’s demand for punitive damages.

Decision;

Defendants' demurrer is OVERRULED.

Defendants’ motion to strike is DENIED as to Defendant Darling and GRANTED as to the corporate Defendants with 15 days leave to amend.

Discussion

1. Demurrer

Defendants demur to the second, fifth, seventh, and eleventh causes of action.

Second Cause of Action – Breach of the Implied Covenant of Quiet Enjoyment

“[E]very lease includes a covenant of quiet possession and enjoyment.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 (citing Civ. Code, section 1927).) “Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) “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.” (Id.)

Here, Plaintiff alleges that Larchmont is the owner of a property located at 1006 N. El Centro Avenue, Los Angeles, CA 90038. (Compl., ¶5.) Laurelwood and Darling were the property managers. (Id., ¶¶6, 9.) Plaintiff has lived at the property since 1997. (Id., ¶13.) At the time Larchmont rented the unit to Plaintiff, the unit was unfit for human habitation and failed to comply with building and housing codes. (Id., ¶16.) Despite giving Defendants notice of the defects, Defendants ignored Plaintiff’s complaints. (Id., ¶¶17-18.) The defects included broken shower knobs, water leaks, a clogged bathtub, a broken toilet, mold, an old range hood, broken oven, clogged plumbing, and broken windows and doors. (Id., ¶19.) As a result of the water leaks, the unit’s roof collapsed. (Id., ¶25.)

Defendant argues that the Complaint fails to plead a cause of action for breach of the covenant of quiet enjoyment because Plaintiff has not vacated the premises. Defendant cites Ginsberg v. Gamson (2012) 205 CalApp.4^th 873, 902 in support of this argument. Defendant alleges that the remedy for a tenant who remains in possession of the premises is limited to breach of contract damages. Defendant argues that Plaintiff’s claims here are limited to breach of contract. However, Ginsberg does not stand to bar a tenant from pleading a separate cause of action for breach of the implied covenant of quiet enjoyment. Rather, Ginsberg concerned whether a tort version of the cause of action for breach of implied covenant of quiet enjoyment existed for the purpose of supporting a demand for punitive damages. The court in Ginsberg held that the cause of action sounded in contract, not in tort, and the plaintiff there could not support a demand for punitive damages for a breach of contract claim. Thus, although the cause of action sounds in contract, there is no bar on pleading a separate cause of action for breach of the implied covenant of quiet enjoyment alongside a breach of contract claim.

The demurrer is overruled on this ground.

Fifth Cause of Action – Intentional Infliction of Emotional Distress

The elements for a cause of action for intentional infliction of emotional distress are (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’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Courts have ruled that the availability of remedies for breach of implied warranty of habitability do not preclude a tenant from suing his landlord for intentional infliction of emotional distress if the landlord’s acts are extreme and outrageous and result in severe mental distress. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921.)

Here, Defendants argue that the Complaint fails to state facts sufficient to support a cause of action for intentional infliction of emotional distress (IIED) because it fails to allege extreme and outrageous conduct and because Plaintiff’s allegations that he suffered extreme emotional distress are conclusory and lack detail.

Plaintiff alleges Defendants intentionally delayed repairs because Plaintiff is a Spanish speaking Latino and Defendants wanted to frustrate Plaintiff and pressure him to vacate the unit. (Id., ¶30.) Defendant Darling discriminated against Plaintiff and other Latino tenants by implementing discriminatory no-noise, no-gathering, and other policies which she selectively used against Latino tenants. (Id., ¶¶31-44.) Darling confronted Plaintiff about his complaints to the city about his unit, accused Plaintiff of having roommates, made unannounced visits to Plaintiff’s unit, refused to accept Plaintiff’s rent payments, accused Plaintiff’s guests of being his roommates, and refused to allow Plaintiff to keep pets due to his status as a Latino. (Id., ¶¶46-50, 58-62.)

The Court notes that Plaintiff’s claims are based in part upon Defendants’ filing of an unlawful detainer action against Plaintiff. However, because these claims would be barred by the litigation privilege, the Court will not include these in its analysis.

Stoiber is instructive here. The court in Stoiber cited Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297 and Aweeka v. Bonds (1971) 20 Cal.App.3d 278 as examples of extreme conduct in habitability cases which would be sufficient to support a cause of action for IIED. In Newby, a landlord shouted at a tenant, insulted her, directed her to leave, and threatened her after the tenant protested a rent increase. In Aweeka, a tenant exercised his right to make repairs to his unit and deduct the cost from rent. Thereafter, his landlord increased rent by nearly double the normal amount and knew the tenant could not pay the increased rent.

Here, the conduct alleged in the Complaint is more akin to the conduct described in Newby and Aweeka because it alleges Darling made accusations about Plaintiff’s guests, accused him of having roommates, subjected him to discriminatory policies, and intruded into Plaintiff’s unit after Plaintiff exercised his right as a tenant to report the deficiencies with his unit. The Court cannot find as a matter of law that this conduct was not extreme and outrageous.

Defendants also allege that there are no allegations in the complaint which show the corporate Defendants participated in any misconduct.

“[R]espondeat superior liability attaches if the activities that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott International., Inc. (2013) 218 Cal.App.4th 499,509. Because it can be difficult to demonstrate “that a corporation is directly liable for the actions of its employees or agents,” respondeat superior “can allow a plaintiff to proceed against a corporation that could have been liable under a burdensome direct liability theory.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515) “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire’ ..., but do not include independent contractors.” (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 349, 256 (Borello).)

Respondeat superior may also be based on either actual or ostensible agency. A principal may be vicariously liable for injury committed by an act of its actual agent where: (i) The principal directly authorizes the act to be committed; (ii) The agent commits the act in the scope of his or her employment and in performing service on behalf of the principal; or (iii) The principal ratifies its agent’s conduct after the fact by voluntarily electing to adopt the agent’s conduct. (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.

Here, the Complaint alleges that Larchmont owned the subject property while Laurelwood and Darling were the property manager and manager of the property. (Compl., ¶¶5-7.) It is reasonable to infer from these facts that Darling was the corporate Defendants’ agent because she managed the property on behalf of the owner and property manager. Because the Complaint alleges Darling engaged in the above-described conduct while performing her duties as a manager, the Complaint sufficiently alleges the corporate Defendants are liable under a theory of respondeat superior.

Defendant also alleges that Plaintiff has not alleged he suffered severe emotional distress. However, the Complaint does allege that Plaintiff has suffered emotional distress, mental anguish, and physical distress. (Compl., ¶¶66, 104, 105.) Although Defendant argues that Plaintiff failed to give sufficient details, there is no requirement that Plaintiff plead this element with any more specificity. Additionally, given the severity of the conduct described in the Complaint, it is reasonable to infer that this conduct would cause severe emotional distress.

The demurrer is overruled on this ground.

Seventh Cause of Action – Negligent Infliction of Emotional Distress

“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)

“[T]here is no duty to avoid¿negligently¿causing emotional distress to another, and…damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) “[U]nless¿the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Id. at p. 985.) “Even then, with rare exceptions, a¿breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Ibid.)

Defendants argue that the Complaint fails to state sufficient facts to support a cause of action for negligent infliction of emotional distress (NIED). Defendant argues that there is no independent tort for NIED and that it is duplicative of the cause of action for negligence. Although Defendants are correct that there is no independent tort for NIED, there is no rule barring a plaintiff from pleading emotional distress damages associated with a cause of action for negligence. Defendants do not challenge the cause of action for negligence and do not challenge the substance of the claim for NIED. Therefore, the demurrer is overruled on this ground.

Eleventh Cause of Action – Nuisance

To state a cause of action for nuisance, a party must first allege a non-trespassory interference with the private use and enjoyment of property. (Civ. Code, section 3479 – 3481; San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.) Liability for nuisance also requires proof of two additional elements: (i) substantial actual damage, which is (ii) unreasonable as to its nature, duration, or amount. (San Diego Gas & Electric Co., supra, 13 Cal.4th at 937-38.)

Here, Defendants argue that the cause of action is duplicative of the cause of action for negligence. However, the courts have ruled that the torts of negligence and nuisance frequently coexist, meaning both may be pled in the same complaint. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 104.) Therefore, although recovery may eventually be limited because the two causes of action are based on the same facts, there is no rule barring plaintiffs from pleading both causes of action.

The demurrer is overruled on this ground.

2. Motion to Strike

Defendants move to strike Plaintiff’s demand for punitive damages.

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the 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.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [citation omitted].) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Ibid. [citing College Hospital, Inc., supra, 8 Cal.4th at p. 726 [for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character]].)

Here, as discussed above, Defendant Darling selectively enforced apartment policies against Plaintiff and other tenants because they were Latino, intruded into Plaintiff’s unit, and confronted Plaintiff about various parts of his tenancy to pressure him to leave his unit. The Court cannot find, as a matter of law, that this conduct was not malicious and despicable as required by Civ. Code, section 3294. Therefore, the motion is DENIED as to Defendant Darling.

As for the corporate Defendants, the Complaint fails to name an officer, director, or managing agent who ratified the alleged malicious conduct. Therefore, the motion is GRANTED to the corporate Defendants.

Conclusion

Defendants’ demurrer is OVERRULED.

Defendants’ motion to strike is DENIED as to Defendant Darling and GRANTED as to the corporate Defendants with 15 days leave to amend.