Judge: Craig Griffin, Case: Rogers vs. Newport Seacrest Apartment Homes, Date: 2023-07-24 Tentative Ruling
A) Demurrer
The Remm Group’s (“Remm”) Demurrer is SUSTAINED.
The court initially notes that plaintiff Hannah Rogers (“Plaintiff”) concedes causes of action (“COA”) Nos. 3 – 6 are improperly pled against Remm. (Opposition, 5:3-10.) The Demurrer is sustained without leave to amend as to those COA.
A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)
“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)
Remm demurs to causes of action (“COA”) Nos. 9 – 12, and 14 on the basis that they do not state facts sufficient to constitute a COA against Remm. (Civ. Proc. Code § 430.10(e).) Remm also demurs to COA Nos. 9 – 12, and 14 on the basis that they are uncertain. (Civ. Proc. Code § 430.10(f).)
1) COA No. 9 – Intentional Infliction of Emotional Distress
The elements to a claim 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) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050.)
“ ‘ “To be “outrageous,” conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.] Moreover, “'[i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” ‘ “ (Fowler v. Varian Assocs., Inc. (1987) 196 Cal. App. 3d 34, 44.)
The definition of “reckless disregard” is “conscious indifference to the consequences of an act.” (DISREGARD, Black's Law Dictionary (11th ed. 2019).)
The allegations of the Complaint equate to defendants not properly maintaining the Property and/or not properly abating mold conditions, which led to Plaintiff suffering health conditions. (Complaint ¶¶ 20, 21, 23, and 85-89.) Plaintiff claims to have had no available means or manner of escaping toxic mold present throughout the property without the assistance of defendants sue in part to incurring moving expenses and being forced to break her lease. (Complaint ¶ 90.) Defendants then demanded Plaintiff pay the full amount of rent each month despite knowing (or should have known) that Plaintiff was in a weakened health state due to inhaling mold spores and her inability to breach the contract. (Compliant ¶ 93-95.) Further, Defendants were aware they would not be able to re-let the Property unless the mold was repaired and remedied. (Complaint ¶ 95.) Despite repeated pleas for assistance in abating the mold, defendants failed to do so and Plaintiff suffered mental and emotional distress, inability to sleep, and feelings of anxiety from living in constant fear that her belongings will remain contaminated by toxic mold. (Complaint ¶ 98.)
Plaintiff has not properly alleged “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.” Plaintiff specifically stated that several attempts to remediate the mold were made, but those were unsuccessful. (Complaint ¶¶ 20, 21, and 23.) Plaintiff was also transferred into a new unit in the complex in September 2021. (Complaint ¶ 24.) While it is unclear if the transfer was under the original lease that had been signed over a year prior, or if Plaintiff signed a new lease to continue remaining in the complex, there appears to have been attempts to fix the mold issue and/or address Plaintiff’s concerns. That the remediation attempts were not successful does not rise to the level of “extreme and outrageous conduct” that would support an IIED claims The inability to actually remediate the mold, despite repeated attempts, does not rise to the level of “extreme and outrageous conduct” nor “conscious disregard” necessary to support this COA.
The Demurrer is SUSTAINED with leave to amend as to this COA.
2) COA No. 10 – Negligent Infliction of Emotional Distress
“[A]s our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress.” (Lawson v. Mgmt. Activities, Inc. (1999) 69 Cal. App. 4th 652, 656.)
The Demurrer is SUSTAINED without leave to amend as to this COA.
3) COA No. 11 – Unfair Business Practices
“The California Unfair Competition Law [“UCL”] ([Bus. & Prof. Code] § 17200 et seq.) defines ‘“unfair competition” as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”’” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 609.)
This COA only vaguely references “unlawful business acts and practices against PLAINTIFF by: conduct rising to the level of Premises Liability, General Negligence, Breach of Contract and/or Breach of Implied Covenant of Good Faith and Fair Dealing; Negligent Maintenance of Premises; Negligent Maintenance of Nuisance; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Conversion.” (Complaint ¶ 108.) Plaintiff provided no specific facts or allegations within this COA. Even with incorporating by reference, I do not believe the actions alleged by Plaintiff rise to the level of unfair business practices. Neither side cited to a case that supported their arguments.
This COA as pled does not state sufficient facts and is uncertain as to Remm.
The Demurrer is SUSTAINED with leave to amend as to this COA.
4) COA No. 12 – Promissory Estoppel
“The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ [Citation.]” (Joffe v. City of Huntington Park (2011) 201 Cal. App. 4th 492, 513.)
The allegations under this section are vague and merely parrot roughly the elements of the COA. It is unclear what “false and misleading representations” Plaintiff is alleging Remm made and how Plaintiff reasonably and detrimentally relied upon said statements.
The Demurrer is SUSTAINED with leave to amend as to this COA.
5) COA No. 14 – Conversion
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages....[Citation omitted.]” (Lee v. Hanley (2015) 61 Cal. 4th 1225, 1240 (“Lee”).) “To prove a cause of action for conversion, the plaintiff must show the defendant acted intentionally to wrongfully dispose of the property of another.” (Duke v. Superior Ct. (2017) 18 Cal. App. 5th 490, 508.)
Plaintiff again only pleads conclusion and few facts with this COA. It appears Plaintiff is arguing solely that Remm converted Plaintiff’s apartment and “monies.” (Complaint ¶ 123.) The Complaint alleges defendants wrongfully physically took Plaintiff’s “money or property” for their own personal use. There are no facts supporting those allegations.
The Demurrer is SUSTAINED with leave to amend as to this COA.
B) Motion to Strike
Remm’s Motion to Strike (“MTS”) is MOOT in part and GRANTED in part.
Moot as to portions of Complaint ¶¶ 92, 96, 125, and 126, as Remm successfully demurrer to the COA that contain those statements.
Granted as to portions of Complaint ¶¶ 127-130 and Prayer Nos. 3 and 5.
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” (Civ. Proc. Code § 435(b)(1).)
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Civ. Proc. Code § 436(a).)
As to Complaint ¶¶ 127-130 and Prayer No. 3, Plaintiff alleges the actions of defendants were malicious, oppressive, fraudulent, and unconscionable, and that punitive damages are warranted. Regarding punitive damages under Civ. Code § 3294:
“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. . .” (Civ. Code § 3294.)
It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice.” A plaintiff must allege specific facts showing that defendant’s conduct was oppressive. (Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)
“‘Malice’ means conduct which is 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.” [Emphasis added.] (Civ. Code § 3294(c)(1).) “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)
The allegations in the Complaint essentially equate to defendants attempting to remediate mold, but being unsuccessful after several complaints and attempts at remediation. There are no allegations that Remm intended to cause Plaintiff harm by failing in the remediation or intended to cause harm by other means. Failure to properly remediate also does not rise to the level of “despicable conduct” that would permit punitive damages under the “malice” prong.
“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).)
Again, the allegations do not raise to the level of “despicable conduct” that would permit punitive damages.
“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294(c)(3).) “[F]raud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Ct. (1996) 12 Cal. 4th 631, 645.)
There are no allegations of fraud within the Complaint, let alone any allegations pled with the requisite specificity necessary to support punitive damages under the fraud prong.
The MTS is granted as to the portions of Complaint ¶¶ 127-130 and Prayer No. 3 requested.
As to Prayer No. 5 for attorney fees, attorney fees are only allowable when authorized by contract, statute, or law. (Civ. Proc. Code § 1033.5(a)(10).) Plaintiff has not identified anywhere in the Complaint a valid basis for the recovery of attorney fees in this matter.
The MTS is granted as to Prayer No. 5.
Leave to amend is granted on the MTS.
Any amended complaint must be filed within 15-days of written notice of the court’s ruling.
Remm to give notice.