Judge Christian R. Gullon, Case Number: 23PSCV00240, Date: 2023-08-15 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00240, Date: 2023-08-15 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

(1) DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT is SUSTAINED with leave to amend.

(2) DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT is MOOT.

On January 26, 2023, Plaintiffs John Hale and Erica Henderson (collectively, “Plaintiffs”) filed suit against Defendants KENNETH SHU, AN INDIVIDUAL; TIFFANY SHU, AN INDIVIDUAL; KENNETH SHU, AS TRUSTEE TO THE SHU KENNETH AND TIFFANY TRUST; KENNETH SHU, AS TRUSTEE TO THE SHU TRUST (collectively, “Defendants”) asserting the following causes of action (COA):

On August 15, 2023, after no appearance by Plaintiff/Plaintiff’s Counsel, the court continued the hearing to 10/02/23.

Defendants bring forth the demurrer pursuant to California Code of Civil Procedure (CCP) section 430.10 subdivisions e and f. (Demurrer p. 3.) In turn, subdivision e provides that a demurrer may be asserted when the pleading does not state facts sufficient to constitute a cause of action. (Code of Civ. Proc., §430.10 subds. (e).) Subdivision f provides that a demurrer may be asserted when the pleading is uncertain. Additionally, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code of Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Lastly, CCP section 430.41 requires the parties to meet and confer before the filing of a demurrer.[1]

Defendants demur to the 1^st COA for violation of Civil Code section 1942.4 and the 7^th COA for IIED.[2] (Demurrer p. 3.)

Under Civil Code section 1942.4, a residential landlord may not demand or collect rent, increase rent, or serve a three-day notice to pay rent or quit if (1) the dwelling is untenantable as defined under Civ. Code section 1941.1, is in violation of Health & Safety Code section 17920.10, or is deemed and declared substandard under Health & Safety Code section 17920.3; (2) a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair the property; (3) the conditions have not been remedied within 35 days of the notice; and (4) the substandard conditions were not caused by the tenant's acts or omissions.

As a prefatory matter, Plaintiffs’ complaint incorporates 85 allegations under each cause of action. This is not a proper use of incorporation.

A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. (Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101.) A review of the causes of action reveals that Plaintiffs are not incorporating facts for informational purposes; instead, they are attempting to plead the essential elements of their cause of action by incorporating unidentified allegations from other portions of their pleadings. This imposes the burden on the court and Defendants to search through the pleadings in order to identify critical aspects of the claims and to determine whether the Plaintiffs have pleaded the essential facts necessary to constitute the causes of action.

On this note about pleading essential facts, CCP section 425.10(a)(1) requires the complaint to contain “A statement of the facts constituting the cause of action, in ordinary and concise language.” A review of the complaint reveal they are not concise. Seventy-two pages of narrative, with largely duplicative allegations, is unnecessary to the pleading and should be cut or reduced substantially so that the pleading includes only the essential elements of the causes of action “in ordinary and concise language”.

And this failure to plead essential facts inherently ties into Defendants’ basis for demurrer which is that Plaintiffs fail to plead sufficient facts. For example, the complaint does not allege the inspection date(s), agency violations and notice of same with specificity. (Demurrer p. 6.) Plaintiffs seemingly concede this point by citing generally to paragraphs 1 through 85 (Opp. p. 2:1-5), which, as explained above, does not meet pleading standards.

To the extent that Plaintiffs aver that each element for the COA is pled in conformity with the “non-heightened pleading standard” (Opp. p. 5:7-8), this is a statutory COA, and statutory COAs are required to be pled with particularity. (See Demurrer p. 6, citing Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 439; see also Reply p. 2, citing Vedder v. City of Imperial (1974) 36 Cal.App.3d 654, 659.) With that, the complaint does not identify any condition impacting habitability that was specifically cited by a public officer for the subject property or does not state the date on which any representative of Defendants received written notice of their obligation to repair defective condition. Rather, the complaint has alleged numerous habitability concerns (Complaint ¶21, 24-37)[3] without establishing which ones are in violation of health and safety codes and conclusively stated “Los Angeles Health Department provided written notice” (Complaint ¶89) and conclusively stated “Defendants failed to abate or repair the conditions identified in one or more of the Notice and Orders to Comply within 35 days of receiving the notice.” (Complaint ¶91.)[4]

Therefore, the court SUSTAINS the demurrer with leave to amend as to the 1^st COA because Plaintiffs have not been pled facts with the requisite particularity.[5]

The elements of IIED are as follows: there is (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) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1001; Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.) “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, citing Rest.2d Torts, § 46, com. d.) Said differently, the test for judging outrageous conduct is less an analytical, bright-line test but rather one that appears “more intuitive.” (KOVR-TV, Inc., supra, 31 Cal.App.4th at p. 1028.)

The Defendant landlord's practice/conduct of ignoring these conditions and/or otherwise failing to make any repairs, under the circumstances, is extreme and outrageous . . . Plaintiffs lived in constant fear that their children's health and safety would take a tum for the worse, as the Plaintiffs were left unable to protect their children from the dangers found at every comer of the Property. Plaintiffs allege that their son was cut in the swimming pool as a result of the Defendants' refusal to remove dangerous glass blocks . . . Plaintiffs allege the Plaintiff Erica Henderson's oldest son even moved out of the Property to live with his other parent because the conditions in the Property and emotional distress and threat of harassment was so high.

Here, for similar reasons above regarding incorporating previous allegations by reference, the court finds the pleadings uncertain. The IIED COA does not explain the specifics as to the harassment. A review of the complaint illustrates allegations that may speak to harassment such as that there was constant fighting with Defendants (Complaint ¶77) or that Plaintiffs would sometimes see Defendants, without notice, in their backyard (Complaint ¶76). This leaves the court to assume which facts Plaintiffs are predicated their extreme conduct upon, which the court cannot as it is bound by the pleadings on a demurrer.

Turning to the second form of conduct—predicated upon the alleged uninhabitable conditions—Plaintiffs have not cited to any legal authority to maintain that failure to perform repairs constitutes the requisite conduct to support an IIED COA.[6]

Additionally, as for emotional damages, those are conclusively pled. (Complaint ¶156 [“Plaintiffs have suffered and/or continue to suffer illness, physical, injury, property damages, emotional harm, anguish, depression, fearfulness, anxiety, nightmares, difficulty sleeping, embarrassment, shame.”].) These are merely forms of which emotional distress, but the allegation does not explain the nature nor extent of the emotional distress. (See Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)[7]

Therefore, the court SUSTAINS the demurrer with leave to amend as to the 7^th COA for IIED because Plaintiffs have failed to plead sufficient facts.[8]

Based on the foregoing, the entirety of the demurrer is sustained with leave to amend. Based thereon, the motion to strike punitive damages is moot.

[1] This requirement is satisfied.

[2] Defendants mistakenly label the 8^th COA as the IIED, but the IIED COA in both the complaint’s caption and text provide that it is the 7^th COA (though the opposition also addresses the IIED COA as the 8^th COA).

[3] The habitability violations include excessive growths of vegetation, lack of maintenance to pool, sauna, and yard, extensive leaks causing mold, moisture damage, and structural issues, inoperable/malfunctioning windows, gates, and doors, missing window screens, insecure stair railing posing fall hazard, inoperable, dysfunctional electrical system, rat infestation, ant infestation, rattlesnake infestation, and extensive mold.

[4] The only specific allegation is that on July 11, 2022, inspector Jose Luis Barrera inspected the unit. (Complaint ¶56.) However, as the complaint is not clear as to whether Barrera works for the county and the opposition does not cite to paragraph 56, the court assumes the inspection irrelevant for purposes of this COA.

[5] The complaint, for its failure to comply with pleading standards, is also uncertain.

[6] To the extent that Plaintiffs cited to Stoiber v. Honeychuck (1980) 101 Cal.App. 3d 903, Plaintiffs have not provided an analysis (i.e., comparison of facts in Stoiber to instant facts), and it is not the court’s burden to do so for Plaintiffs.

[7] “As explained in the Restatement Second of Torts, section 46, comment j, ‘[c]omplete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.” After reviewing this discussion, the Fletcher court concluded that “[i]t appears, therefore, that in this context ‘severe’ means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.’

Although appellants alleged they suffered severe emotional distress, they failed to set forth any facts which indicate the nature or extent of any mental suffering incurred as a result of Employer’s alleged outrageous conduct.”]) (emphasis added).

[8] And, similar to 1^st COA, the court finds the pleadings uncertain due to the improper use of incorporation by reference.