Judge: Curtis A. Kin, Case: 22STCV33699, Date: 2023-04-25 Tentative Ruling

Case Number: 22STCV33699    Hearing Date: April 25, 2023    Dept: 72

DEMURRER AND MOTION TO STRIKE

Date:              4/25/23 (9:30 AM)                 

Case:             Manuel de Jesus Reyes Chicas et al. v. Abode Communities (22STCV33699)

TENTATIVE RULING:

Defendant Abode Communities’ UNOPPOSED Demurrer to First Amended Complaint is SUSTAINED IN PART.

Defendant Abode Communities’ UNOPPOSED Motion to Strike Portions of First Amended Complaint is DENIED.

I.                   DEMURRER TO FIRST AMENDED COMPLAINT

A.                Uncertainty

Defendant Abode Communities demurs to the second, sixth, and seventh causes of action based on uncertainty. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The second, sixth, and seventh causes of action are based on defendant’s failure to repair the substandard conditions in plaintiffs’ unit, including electrical and plumbing deficiencies, water leaks, and water damaged ceilings. (FAC ¶¶ 8, 13, 25, 38.) The First Amended Complaint is not so unintelligible that defendant cannot respond to the pleading. Defendant’s assertion of uncertainty is not well-taken.

B.                 Second Cause of Action: Breach of Statutory Warranty of Habitability

Defendant contends that the second cause of action is duplicative of the first, third, and fourth causes of action. It is proper to sustain A demurrer without leave to amend when a cause of action adds nothing to the complaint by way of fact or legal theory of recovery. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501. Here, however, the legal theory of recovery is different in the causes of action at issue. The second cause of action is based on a violation of Civil Code § 1941. (FAC ¶ 14.) The first cause of action is based on the implied warranty of habitability. (FAC ¶ 8.) The third cause of action is based on the implied covenant of quiet enjoyment. (FAC ¶ 20.) The fourth cause of action is based on the breach of the duty of care under common law and Civil Code § 1714. (FAC ¶ 26.) The theory of recovery under the first, second, third, and fourth causes of action are different. Accordingly, the second cause of action is not duplicative of the first, third, or fourth causes of action.

Defendant also maintains that there is no private cause of action based on a violation of Civil Code § 1941. (See FAC ¶ 14 [“As explained in the more detailed factual allegations set forth in this Complaint, the Defendants have breached the warranty of habitability established by Section 1941 of the Civil Code by failing to ensure that the building is in a condition that meets the requirements of Section 1941.1 of the Civil Code and Section 17920.3 of the Health and Safety Code”].)

“A violation of a state statute does not necessarily give rise to a private cause of action. [Citation.] Instead, whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute. [Citations.]” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596.) “A statute creates a private right of action only if the enacting body so intended.” (Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 849-50, quoting Moradi–Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 305.)

Civil Code § 1941 states: “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.” Civil Code § 1941 does not contain any language manifesting an intent to create a private cause of action for violation of this statute. This stands in marked contrast to Civil Code § 1942.4, which allows a tenant who is evicted due to substandard conditions in the leased premises to file an action. (Civ. Code § 1942.4(e) [“Any action under this section may be maintained in small claims court if the claim does not exceed the jurisdictional limit of that court”].)

Despite proper service of the instant demurrer, plaintiffs did not file any opposition to provide any support for their claim under § 1941.  The demurrer to the second cause of action is SUSTAINED.

C.                Sixth Cause of Action: Private Nuisance

Defendant maintains that the sixth cause of action is duplicative of the first, third, and fourth causes of action.

With respect to the fourth cause of action for negligence, “[w]here negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) In El Escorial, cited by defendant, the Court of Appeal determined that the plaintiff’s allegations concerning toxic mold contamination due to negligent construction constituted negligence, not a nuisance. (Id. at 1348-49.)

Here, by contrast, the nuisance cause of action incorporates certain allegations that are based on intentional conduct, e.g. the failure to attempt repairs at all, as opposed to mere negligent conduct, e.g. the failure to perform repairs adequately. (See FAC ¶¶ 34 [incorporates prior allegations], 11 [defendant had notice of uninhabitable conditions from plaintiffs, defendant’s employees and agents, and public entities], 17 [defendant failed to comply with habitability statues after repeated notice of non-compliance], 31 [defendant did not remedy conditions cited by government housing enforcement agencies].) Because the nuisance cause of action is also based on intentional conduct, it is different from the fourth cause of action for negligence.

With respect to the first and third causes of action, these causes of action are based on different theories of recovery than the private nuisance cause of action, which is based on Civil Code § 3479. (FAC ¶ 35.) Unlike with respect to the fourth cause of action for negligence, defendant does not cite any authority indicating that the private nuisance cause of action should be viewed as equivalent to the first cause of action for breach of the implied warranty of habitability or the third cause of action for breach of the covenant of quiet enjoyment.

The demurrer to the sixth cause of action is OVERRULED.

D.                Seventh Cause of Action: Violation of City of Los Angeles Tenant Anti-Harassment Ordinance

The seventh cause of action is based on Los Angeles Municipal Code (“LAMC”) § 45.35, which allows an aggrieved tenant to initiate civil proceedings. (FAC ¶ 39.) LAMC § 45.33 states: “Tenant Harassment shall be defined as a landlord's knowing and willful course of conduct directed at a specific tenant or tenants that causes detriment and harm, and that serves no lawful purpose,” including the actions enumerated in the ordinance.

Defendant contends that plaintiffs did not allege any knowing or willful conduct or conduct specifically directed to them. Plaintiffs allege that they, along with defendant’s employees, and public entities, notified defendant of the substandard condition in their unit, including mold, mildew, and rodent and insect infestations. (FAC ¶¶ 8, 11, 17, 38.) Despite repeated notice, defendant refused to make the requested repairs. (FAC ¶¶ 17, 39.) Plaintiffs sufficiently allege a cause of action for knowing and willful tenant harassment based on defendant’s failure “to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws….” (LAMC § 45.33(2).) Because defendant failed to make repairs to the unit in which plaintiffs lived, plaintiffs sufficiently allege that defendant’s failure to make repairs was directed toward plaintiffs.

Defendant also contends that plaintiffs did not indicate that the alleged violations occurred after August 6, 2021, the effective date of the ordinance. Plaintiffs allege that defendant failed to correct the substandard conditions from at least May of 2017 to the present. (FAC ¶ 8.) Because the First Amended Complaint was filed on February 8, 2023 and based on the allegations of repeated notice, when the First Amended Complaint is read as a whole, plaintiffs sufficiently allege that notice of the substandard conditions and defendant’s failure to make repairs occurred after LAMC § 45.33 became effective.

Defendant also contends that plaintiffs did not allege when they provided written notice to defendant of the need for repairs. LAMC § 45.35(F) states: “A civil proceeding or small claims case initiated under this article alleging any violation of Section 45.33 2. may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.” Plaintiffs’ allegation that they notified defendant in writing of requested repairs and maintenance is sufficient. (FAC ¶ 39.) Defendant can ascertain the details concerning the alleged written notice in discovery.

The demurrer to the seventh cause of action is OVERRULED.

II.                MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Defendant Abode Communities seeks to strike paragraphs 39(a) through 39(m) on the ground that plaintiffs do not plead sufficient facts in support of the seventh cause of action. Under CCP § 436, the Court has discretion to strike irrelevant, false, or improper matter in a pleading, or parts of a pleading that do not conform with the laws of California. (CCP § 436 [“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . .”].) For the reasons discussed with respect to the demurrer, the seventh cause of action is adequately stated. With respect to subparts (d) through (m), even if plaintiffs did not plead facts directed to these subparts, the Court exercises its discretion and declines to strike these allegations as defendant can ascertain facts supporting these subparts in discovery.

The motion is DENIED.

Before deciding whether to allow leave to amend with respect to the second cause of action, the Court shall hear from plaintiffs as to how they can amend the defect set forth above.