Judge: Colin Leis, Case: 23STCV13110, Date: 2023-11-29 Tentative Ruling
Case Number: 23STCV13110 Hearing Date: November 29, 2023 Dept: 74
Marcellus
Ford v. Manhattan Loft, LLC., et al.
Defendant FPI Management, Inc.’s
Demurrer to Complaint.
BACKGROUND
This
action arises from a landlord-tenant dispute.
On
June 8, 2023, Plaintiff Marcellus Ford (Plaintiff) filed a complaint against
Defendant FPI Management, Inc. (Defendant FPI) and others.
On
August 16, 2023, Defendant FPI filed this demurrer.
LEGAL STANDARD
A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack or from matters outside the pleading that are judicially
noticeable. (¿¿Blank v. Kirwan (1985) 39 Cal.3d 311, 318¿¿.) “¿To
survive a demurrer, the complaint need only allege facts sufficient to state a
cause of action; each evidentiary fact that might eventually form part of the
plaintiff’s proof need not be alleged.¿” (¿¿C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 872¿¿.) For the purpose of testing
the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (¿Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967¿.) A demurrer “¿does not
admit contentions, deductions or conclusions of fact or law.¿” (¿¿Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713¿¿.)
DISCUSSION
First Cause of Action – Violation of
Civil Code section 1942.4
Under Civil Code section 1942.4, a
landlord may not demand rent if (1) the dwelling substantially lacks certain
affirmative standard characteristics, (2) a public officer has notified the
landlord in writing of an obligation to abate the nuisance or repair the
substandard conditions, (3) the conditions have existed and not been abated 35
days beyond the date of the service of the notice, and (4) the conditions were
not caused by an act or omission of the tenant.
In
support of its demurrer, Defendant FPI argues Plaintiff has not alleged facts
supporting the second element. Plaintiff alleges a public officer provided
Defendant written notice of its obligation to repair the premises, though.
(Complaint, ¶ 80; Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at
pp. 966-967 [demurrer admits the truth of all material facts properly pleaded].)
Defendant FPI further contends Plaintiff’s allegations do not meet the
heightened particularity required for statutory violations. In support,
Defendant invokes Hood v. Hacienda La Puente Unified School District (1998)
65 Cal.App.4th 435, 439.) But that case concerned statutory liability under the
Tort Claims Act, a statute not at issue here. (Ibid.)
Defendant
FPI also claims Plaintiff has not stated facts supporting the third element. But
Plaintiff has alleged that, on information and belief, Defendant FPI failed to
abate or repair defective conditions within 35 days of receiving notice.
(Complaint, ¶ 82.) Defendant FPI contends that allegations based on information
and belief require Plaintiff to provide information supporting his belief. (Gomez
v Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-1159.) The
fact, however, that Defendant FPI ignored Plaintiff’s complaints about
defective conditions at the property justifies Plaintiff’s belief that
Defendant FPI did not sufficiently respond to the supposed notice. (Complaint,
¶ 81.) Last, Defendant FPI contends Plaintiff’s allegations in support of the
third element do not satisfy a heightened pleading standard. As noted above,
though, Defendant FPI has not persuaded the court that such a standard applies
here. Thus, the court overrules Defendant FPI’s demurrer to this cause of
action.
Second Cause of Action – Tortious Breach
of the Warranty of Habitability
A claim for the breach of the
warranty of habitability may sound in contract. (Stolber v. Honeychuck (1980)
101 Cal.App.3d 903, 918-919; Green v. Superior Court (1974) 10 Cal.3d
616, 619 [recognizing an implied warranty of habitability in residential leases
in California].) The elements for a breach of contract claim are as follows:
(1) existence of the contract, (2) plaintiff’s performance or excuse for
non-performance, (3) defendant’s breach, and (4) damages. (CDF Firefighters
v. Maldonado (2008) 158 Ca.App.4th 1226, 1239.)
Defendant
FPI argues Plaintiff has not alleged the existence of a contract between the
parties. The court disagrees: Plaintiff’s allegations, taken together, suggest
Plaintiff was in a landlord-tenant relationship with Defendant FPI under a
written rental agreement from 2021. (Complaint, ¶¶ 4, 87.) In addition,
Defendant FPI notes Plaintiff has not attached a copy of the contract or
pleaded the legal effect of it. (Miles v. Deutsche Bank National Trust Co. (2015)
236 Cal.App.4th 394, 402.) Plaintiff is presumably capable of alleging the
lease’s essential terms, even if plaintiff does not have a copy of the lease. Thus,
the court sustains Defendant FPI’s demurrer to this cause of action with leave
to amend.
Third Cause of Action – Nuisance
Defendant FPI contends this cause of
action duplicates Plaintiff’s negligence claim. (El Escorial Owners’ Assn.
v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349; Van Zyl v.
Spiegelberg (1969) 2 Cal.App.3d 367, 372.) In opposition, Plaintiff argues
his nuisance claim derives from Defendant FPI’s failure to repair unlawful
living conditions. Although Plaintiff’s negligence claim encompasses this
failure to provide such repairs, Plaintiff may plead alternative theories of
liability based on the same facts. (Crogan v. Metz (1956) 47 Cal.2d 398,
403.) Thus, the court overrules the demurrer to this cause of action.
Fourth Cause of Action – Business
and Professions Code section 17200, et seq
Next,
Defendant FPI claims Plaintiff’s allegations do not support this cause of
action because they refer to Defendants collectively, rather than Defendant FPI
in particular. (Complaint, ¶¶ 109-118.) Elsewhere in the complaint, though,
Plaintiff has defined Defendants to include Defendant FPI. (Complaint, ¶ 4.)
The court therefore overrules the demurrer.
Sixth Cause of Action – Breach of
Covenant of Quiet Enjoyment
“The
implied covenant of quiet enjoyment implies a term in a contract, and a breach
of the covenant gives rise to an action in contract.” (Ginsberg v. Gamson (2012)
205 Cal.App.4th 873, 896-897.) Here, Defendant FPI claims Plaintiff cannot
prevail on this cause of action because he has not alleged a lease between the
parties. Not so: Plaintiff alleges he was in a landlord-tenant relationship
with Defendants under a written rental agreement from 2021. (Complaint, ¶ 87.)
And Plaintiff’s definition of Defendants includes Defendant FPI. (Complaint, ¶
4.) Thus, the court overrules the demurrer to this cause of action.
Seventh Cause of Action –
Intentional Infliction of Emotional Distress
The elements for this cause of
action are as follows: “(1) outrageous conduct by the defendant, (2) intention
to cause or reckless disregard of the probability of causing emotional
distress, (3) severe emotional suffering and (4) actual and proximate causation
of the emotional distress.” (Bogard v. Employers Casualty Co. (1985) 164
Cal.App.3d 602, 616.)
In
support of its demurrer, Defendant FPI claims Plaintiff’s allegations are not
specific enough. However, Plaintiff has identified conduct that a trier of fact
could find outrageous: namely, Defendant FPI’s inaction in response to
Plaintiff’s complaints about cockroach infestation, mold, insufficient
plumbing, lack of water supply and heating, inadequate weatherproofing,
dangerous elevators, unsafe common areas, and inadequate security. (Complaint,
¶¶ 25, 33.) If true, these conditions could have jeopardized Plaintiff’s health
and safety. Moreover, Plaintiff has elaborated on the symptoms of his severe
emotional distress. (Complaint, ¶ 143.) Thus, the court overrules the demurrer to
this cause of action.
Eighth Cause of Action – Negligence
Per Se
Moreover, Defendant FPI points out
negligence per se is not a cause of action. (Quiroz v. Seventh Ave. Center (2006)
140 Cal.App.4th 1256, 1285-1286 [“[T]o apply negligence per se is not to state
an independent cause of action The doctrine does not provide a private right of
action for violation of a statute.”].) Rather, negligence per se is an
evidentiary presumption that applies to Plaintiff’s other cause of action for
negligence. (Ibid.) The court will therefore sustain the demurrer to
this cause of action without leave to amend.
Ninth Cause of Action – Violation of
Consumer Legal Remedies Act under Civil Code section 1750, et seq
This
cause of action requires Plaintiff to provide written notice to Defendant FPI
that it violated Civil Code section 1770, and to demand that Defendant FPI
rectify the violation at least thirty days before the commencement of an action
for damages. (Civ Code, § 1782, subd. (a).) Defendant FPI claims Plaintiff has failed
to allege as much. Nor has Plaintiff directed the court to any supporting
allegations in the 69-page complaint. But Plaintiff argues this requirement
does not apply because he only seeks injunctive relief. (Civ Code, § 1782,
subd. (d).) The complaint indicates Plaintiff also seeks damages under this
cause of action, though. (Complaint, ¶ 167.) Thus, the court sustains the
demurrer to this cause of action with leave to amend.
Tenth Cause of Action – Violation of
Los Angeles Tenant Anti-Harassment Ordinance
Los Angeles Municipal Code article
5.3, section 45.33, addresses tenant harassment. Before pursuing a civil action
in this context, the tenant must provide written notice to the landlord of the
alleged violation and the landlord must fail to remedy the repair or
maintenance issue within a reasonable timeframe. (Los Angeles Municipal Code,
article 5.3, § 45.35, subd. (f).)
Defendant
FPI first argues Plaintiff has not alleged that he gave Defendant FPI written
notice of harassment as defined in Los Angeles Municipal Code article 5.3,
section 45.33. But Plaintiff does allege that he provided written complaints to
Defendants about the premise’s condition. (Complaint, ¶ 201.) The trier of fact
could construe such complaints as applying to Defendant FPI’s failure to
perform necessary repairs and maintenance, which counts as harassment for the
purposes of the Los Angeles Municipal Code article 5.3, section 45.33. Second,
Defendant FPI objects that Plaintiff alleges harassment by all Defendants, as
opposed to Defendant FPI in particular. As noted above, though, Plaintiff’s
definition of Defendants includes Defendant FPI. (Complaint, ¶ 4.) Thus, the
court overrules the demurrer to this cause of action.
Eleventh Cause of Action – False
Advertising under Business and Professions Code section 1750, et seq
Defendant
FPI claims Plaintiff’s allegations do not support this cause of action because
they refer to Defendants collectively, rather than Defendant FPI in particular.
(Complaint, ¶¶ 178-188.) Elsewhere in the complaint, though, Plaintiff has
defined Defendants to include Defendant FPI. (Complaint, ¶ 4.) The court
therefore overrules the demurrer on this basis.
Twelfth Cause of Action –
Intentional Influence to Vacate
Under
Civil Code section 1940.2, subdivision (a), “[i]t is unlawful for a landlord to
do any of the following for the purpose of influencing a tenant to vacate a
dwelling . . . use, or threaten to use, force, willful threats, or menacing
conduct constituting a course of conduct that interferes with the tenant’s
quiet enjoyment of the premises . . . that would create an apprehension of harm
in a reasonable person.”
Defendant
FPI asserts no allegations suggest it engaged in menacing conduct that would
create an apprehension of harm in a reasonable person. In opposition, Plaintiff
points to paragraph 193 of the complaint, which describes how Defendant FPI
threatened to evict him. The court does not find that such conduct would lead a
reasonable person to fear harm. Plaintiff also points to paragraphs 189 through
197, but none of the allegations in these paragraphs describe any conduct by
Defendant FPI that would create a reasonable apprehension of harm. Thus, the
court sustains Defendant FPI’s demurrer to this cause of action with leave to
amend.
Thirteenth Cause of Action –
Retaliatory Eviction
Under Civil Code section 1942.5, a
lessor cannot recover possession of the dwelling in any proceeding, cause the
lessee to quit involuntarily, increase the rent, or decrease any services
within 180 days of the lessee complaining to the lessor about tenantability.
(Civ. Code, § 1942.5, subd. (a)(1).) As Defendant FPI notes, Plaintiff has not
alleged the dates of his complaints in relation to the dates of Defendant FPI’s
alleged retaliation. Consequently, Plaintiff has not sufficiently demonstrated
that the retaliation occurred within the 180-day timeframe, as required by
Civil Code section 1942.5. Thus, the court sustains the demurrer to this cause
of action with leave to amend.
CONCLUSION
Based
on the foregoing, the court sustains Defendant FPI’s demurrer for the second, ninth,
twelfth, and thirteenth causes of action with 20 days’ leave to amend. The
court sustains the demurrer to the eighth cause of action without leave to
amend. The court overrules Defendant FPI’s demurrer for the first, third,
fourth, sixth, seventh, tenth, and eleventh causes of action.
Defendant
FPI shall give notice.
Defendant FPI Management Inc.’s
Motion to Strike Portions of the Complaint
The court considered the moving
papers, opposition, and reply.
BACKGROUND
This
action arises from a landlord-tenant dispute.
On
June 8, 2023, Plaintiff Marcellus Ford (Plaintiff) filed a complaint against
Defendant FPI Management, Inc. (Defendant FPI) and others.
On
August 16, 2023, Defendant FPI filed this motion to strike portions of the
complaint.
LEGAL STANDARD
A court may strike any “¿irrelevant,
false or improper matter¿inserted in any pleading¿” or any part of a 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¿.) “¿The grounds for a
motion to strike shall appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.¿” (¿Code
Civ. Proc., § 437¿.)¿
DISCUSSION
Defendant
FPI contends Plaintiff’s allegations do not support an award of punitive
damages against it. In support, Defendant FPI points out that it is a corporate
employer. Under Civil Code section 3294, subdivision (b), a corporate employer
shall not be liable for punitive damages based upon acts of an employee . . . unless
an officer, director, or managing agent of the corporation had advance
knowledge of the unfitness of the employee and employed him or her with a
conscious disregard of the rights or safety of others or authorized or ratified
the wrongful conduct. In his complaint, Plaintiff alleges misconduct by Defendant
FPI’s agents or employees. Plaintiff does not, however, identify an officer,
director, or managing agent of Defendant FPI who authorized or ratified this
misconduct, nor does Plaintiff name an officer, director, or managing agent who
hired these employees or agents with advance knowledge of their unfitness and
with conscious disregard for the safety of tenants. Thus, the court grants
Defendant FPI’s motion to strike the following: paragraphs 42, 43, 44, 45, 50,
75, 76, 96, 108, 127, 170, 177, 197, 207, 208, as well as the following
paragraphs of the prayer: 4, 7, 8, and 14. However, the court grants Plaintiff
leave to amend.
Defendant
FPI also challenges Plaintiff’s requests for attorney fees under Civil Code
sections 1942.4, 1942.5, and 1780, subdivision (e) and Los Angeles Municipal
Code section 45.35. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Defendant FPI
argues the court should strike the requests for attorney fees because Plaintiff
has not alleged sufficient facts to support the associated causes of action.
But the court sustained Defendant FPI’s demurrer for only two of those
associated causes of action: Civil Code section 1942.5 (retaliatory eviction)
and section 1780, subdivision (e) (Consumer Legal Remedies Act). Thus, the
court grants the motion to strike the following: paragraphs 169, 205, and 210 of the complaint, in addition to
paragraph 9 of the prayer. The court grants Plaintiff leave to amend.
Finally,
Defendant FPI moves to strike Plaintiff’s prayer for special damages under
Civil Code section 1942.4, subdivision (b)(1), because Plaintiff has not
sufficiently pled the associated cause of action. The court found otherwise in overruling
Defendant FPI’s demurrer to that cause of action. Defendant FPI also moves to
strike Plaintiff’s prayer for civil penalties under Los Angeles Municipal Code
section 45.35, because Plaintiff has not sufficiently pled the associated cause
of action. But the court found otherwise in its ruling on the demurrer. Last,
Defendant FPI seeks to strike Plaintiff’s prayer for restitution under Business
and Professions Code section 17200, because Plaintiff has not sufficiently pled
the associated cause of action. However, the court found otherwise in its
ruling on the demurrer.
CONCLUSION
Based
on the foregoing, the court grants Defendant FPI’s motion to strike the
following: paragraphs 42, 43, 44, 45, 50, 75, 76, 96, 108, 127, 169, 170, 177,
197, 205, 207, 208, and 210 of the complaint, as well as the following
paragraphs of the prayer: 4, 7, 8, 9, and 14. The court grants Plaintiff 20
days’ leave to amend.
Defendant
shall give notice.