Judge Daniel M. Crowley, Case Number: 21STCV34296, Date: 2024-03-20 Tentative Ruling

Defendant Elena Talan’s demurrer to Plaintiff Brent Wing’s second amended complaint is overruled as to the 1st and 8th causes of action and sustained with 20 days leave to amend as to the 11th cause of action.

Defendant Elena Talan (“Talan”) (“Defendant”) demurs to Plaintiff Brent Wing’s (“Wing”) (“Plaintiff”) second amended complaint (“SAC”). (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f), 430.50(a).) Talan also moves to strike portions of the SAC. (Notice of MTS, pgs. 1-4; C.C.P. §§435, 436.)

Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41(a), emphasis added.) The demurring party must identify all of the causes of action it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the pleading must explain with legal support the basis for its position that the pleading is legally sufficient or, if it is not, how the pleading could be amended to cure any legal insufficiency. (C.C.P. §430.41(a)(1).)

Talan’s counsel declares she attempted to meet and confer with Plaintiff’s counsel via a meet and confer letter dated September 27, 2023, to which she did not receive a response. (Decl. of Porter ¶12, Exh. 9.) Talan’s counsel declares she provided her availability for a telephonic meet and confer and requested Plaintiff’s counsel provide their availability. (Decl. of Porter ¶12.) Talan’s counsel declares she sent multiple follow up emails to Plaintiff’s counsel requesting a phone meet and confer and received no response. (Decl. of Porter ¶13, Exh. 13.)

Talan’s counsel’s declaration is insufficient under C.C.P. §§430.41(a) because she did not demonstrate an attempt to personally call Plaintiff’s counsel, rather, she sent letters requesting Plaintiff’s counsel schedule a telephonic meet and confer. However, the failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4).) Accordingly, the Court will consider the instant demurrer.

This action arises out of Plaintiff’s alleged entry into a lease agreement (“Lease”) with Defendant Dale Aaron Jones (“Jones”) on or around December 18, 2014, for real property located at 1815 N. Wilton Place, Los Angeles, CA 90028 (“Subject Building”). (SAC ¶¶6, 7, 17, Exh. A.) Plaintiff alleges during his tenancy, ownership and management of the Subject Building transferred from Non-moving Defendant Jones to Talan on or around October 30, 2019. (SAC ¶19.) Plaintiff alleges on information and belief that Talan owned the Subject Building and managed the property with Defendants Alina Kutsevol (“Alina”) and Ivan Kutsevol (“Ivan”). (SAC ¶20.) Plaintiff alleges he was constructively evicted from the Subject Building on or around October 7, 2020. (SAC ¶21.)

On September 16, 2021, Plaintiff filed his original complaint (“Complaint”). On June 20, 2022, Plaintiff filed his first amended complaint (“FAC”). On September 19, 2023, the parties stipulated that Plaintiff be granted leave to file a second amended complaint (“SAC”). Plaintiff filed the operative SAC on September 25, 2023, alleging twelve causes of action: (1) breach of contract; (2) breach of covenant of quiet enjoyment; (3) breach of warranty of habitability; (4) negligence; (5) private nuisance; (6) violation of Civil Code §1942.4; (7) violation of unfair business practices; (8) intentional infliction of emotional distress; (9) trespass to land; (10) trespass to chattels; (11) retaliation; and (12) constructive eviction.

On October 23, 2023, Talan filed the instant demurrer and motion to strike. On March 7, 2024, Plaintiff filed his opposition. On March 13, 2024, Talan filed her reply.

In support of her demurrer to Plaintiff’s SAC, Talan argues the 1st, 8th, and 11th causes of action and claim Plaintiff’s SAC fail to state facts sufficient to constitute causes of action. (Demurrer, pg. 3; C.C.P. §430.10(e).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Plaintiff alleges resided at the Subject Property pursuant to a written rental agreement whereby Plaintiff rented the Subject Property for an agreed upon monthly sum of $565.00 (Five Hundred and Sixty-Five Dollars). (SAC ¶54.) Plaintiff alleges on information and belief that when ownership transferred from Jones to Talan, Jones also assigned his interests and obligations under the lease to Talan. (SAC ¶55.) Plaintiff alleges he performed the obligations under the Lease or has otherwise been excused from said performance. (SAC ¶57.)

Plaintiff alleges Defendants breached the lease agreement with Plaintiff by, among other things, breaching the implied warranty of habitability by failing to maintain the Subject Property in a habitable and tenantable condition, despite being put on notice of the uninhabitable and untenantable conditions. (SAC ¶58.) Plaintiff alleges the Subject Property’s uninhabitable conditions include dilapidation, unsanitary conditions, vermin infestation, insufficient weather protection, inadequate electrical wiring, dampness and mold, nuisance, and illegal units. (SAC ¶59.) Plaintiff alleges Defendants did not properly remediate these issues to the detriment of Plaintiff. (SAC ¶59.)

Plaintiff alleges Defendants began massive construction near the Subject Property which fundamentally changed the nature of Plaintiff’s tenancy. (SAC ¶60.) Plaintiff alleges the Subject Property is an illegal unit and the Lease contemplated the leasing of a legal premises, thus the Defendants also breached the Lease by failing to resolve this issue. (SAC ¶60.)

Plaintiff alleges Defendants and/or their agents collected rent from Plaintiff throughout the period during which the substandard conditions listed above have existed. (SAC ¶61.) Plaintiff alleges these substandard conditions at the Subject Property were not caused by acts or omissions of Plaintiff. (SAC ¶62.) Plaintiff alleges as a result of the Defendants’ actions and inaction, Plaintiff suffered damages in an amount to be proven at trial. (SAC ¶63.)

A landlord’s sale, assignment or other transfer of ownership does not affect an existing lease. Instead, the transferee, in effect, “steps into the landlord’s shoes.” (Kirk Corp. v. First American Title Co. (1990) 220 Cal.App.3d 785, 809; see also, Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 101 Cal.App.4th 1317, 1328.) Thus, the successor ordinarily remains bound by all the terms and conditions in the lease and the tenant, in turn, becomes a tenant of the landlord’s successor, obligated to the successor under all of the tenant covenants in the lease. (See Chapman v. Great Western Gypsum Co. (1932) 216 Cal. 420, 427; Peter Kiewit Sons’ Co. v. Richmond Redevelop. Agency (1986) 178 Cal.App.3d 435, 441; Rosenkranz v. Pellin (1950) 99 Cal.App.2d 650, 652-653.)

Here, the transfer of ownership and management of the Subject Building from Jones to Talan is noted in SAC ¶¶19 and 55. Further, Plaintiff attached a copy of the Lease to his SAC, which states the material terms and conditions of the contract. (SAC ¶17, Exh. A.) Plaintiff alleges his full performance of the contract or excuse for nonperformance. (SAC ¶57.) Plaintiff alleges Talan’s breach of the lease by, among other things, breaching the implied warranty of habitability by failing to maintain the Subject Property in a habitable and tenantable condition, despite being put on notice of the uninhabitable and untenantable conditions. (SAC ¶58.) Plaintiff also alleges breach of the lease because the Subject Property is an illegal unit and the Lease contemplated the leasing of a legal premises, and the Defendants also breached the Lease by failing to resolve this issue. (SAC ¶60.)

Talan’s argument that the cause of action for breach of contract duplicative of the cause of action for breach of the warranty of habitability is unavailing. The two causes of action have distinct elements, and distinct causes of action can be alleged on the same factual circumstances. Further, Talan fails to cite case law in support of the proposition that facts shared between a cause of action for breach of contract and a cause of action for breach of the warranty of habitability cannot be alleged for both.

Accordingly, Talan’s demurrer to Plaintiff’s 1st cause of action is overruled.

“The elements of a prima facie case for the tort of 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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted; CACI 1600.) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921, quoting Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297.)

Plaintiff alleges Defendants’ actions and failure to act, as detailed above, including, but not limited to, the Defendants’ refusal or failure to repair all the habitability and safety issues, despite numerous pleas for repairs from Plaintiff, represents outrageous and malicious conduct. (SAC ¶118.) Plaintiff alleges he relied on Defendants to make these repairs and the Defendants’ refusal to do so was an abuse of their position as the Subject Property’s landlord. (SAC ¶118.) Plaintiff alleges Defendants engaged in bothersome construction near the Subject Property while Plaintiff still resided at the Subject Property and Talan attempted to remove Plaintiff from the Subject Property against his will. (SAC ¶119.) Plaintiff alleges Talan made false statements about the timeliness and remittance of Plaintiff’s rent payments and then entered the Subject Property and discarded many of Plaintiff’s valuable possessions. (SAC ¶119.)

Plaintiff alleges Defendants knew that Plaintiff lived in the Subject Property with the dangerous and uninhabitable conditions, Defendants knew that Plaintiff remained in the Subject Property during his construction project, and

Talan knew that she was making false accusations about Plaintiff’s payments, willfully invading Plaintiff’s privacy, and illegally discarding Plaintiff’s belongings. (SAC ¶120.) Plaintiff alleges Defendants acted with a reckless disregard to the probability that Plaintiff would suffer severe emotional distress; including annoyance, mental anguish, anxiety, worry, fear, discomfort, loss of enjoyment of life, and humiliation as a result of the Subject Property’s uninhabitable conditions, which the Defendants created and allowed to continue, the construction project near the Subject Property, and Talan’s conduct. (SAC ¶121.)

Plaintiff alleges despite being aware that Plaintiff was timely paying rent and that the Subject Property was an illegal unit, Defendants started eviction proceedings against the Plaintiff to remove him from the Subject Property. (SAC ¶122.) Plaintiff alleges Defendants’ conduct was a substantial factor in causing Plaintiff’s severe emotional distress, and Plaintiff suffered mental injury and loss of use and enjoyment of his rental home as a result. (SAC ¶123.) Plaintiff alleges Defendants consciously disregarded Plaintiff’s rights and their conduct towards Plaintiff was intentional, malicious, and oppressive, and under Civil Code §3294 and Plaintiff is entitled to punitive damages. (SAC ¶124.)

Plaintiff sufficiently alleges various habitability defects; Defendants’ failure to address the habitability defects; and that Plaintiff suffered annoyance, mental anguish, anxiety, worry, fear, discomfort, loss of enjoyment of life, and humiliation as a result of Talan’s conduct. (FAC ¶127.) Plaintiff sufficiently alleges Talan abused a relation or position which gives her power to damage the Plaintiff’s interest. (SAC ¶¶19-20, 48, 52, 119, 120, 122; Stoiber, 101 Cal.App.3d at pg. 921.)

Accordingly, Talan’s demurrer to Plaintiff’s 8th cause of action for intentional infliction of emotional distress is overruled.

The lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of [¶] . . . the lessee, in good faith, . . . [filing] a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability . . . [¶] [or] [a]fter the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

Plaintiff alleges Defendants Talan, Ivan, and Alina began evicting tenants in November 2019 to conduct construction and Plaintiff feared that he would be forced to leave or that his unit would be torn down with his belongings still inside. (SAC ¶142.) Plaintiff alleges on November 8, 2019, Defendants began eviction proceedings against Plaintiff. (SAC ¶143.) Plaintiff alleges throughout January 2020, the Los Angeles Housing and Community Investment Department (“HCIDLA”) sent numerous letters to Defendants stating that their eviction notices to Plaintiff and the other tenants were not sufficient as they did not state the reason for eviction. (SAC ¶144.)

Plaintiff alleges on or around January 8, 2020, complaint was filed with HCIDLA for unregistered units and the illegal eviction attempt of tenants. (SAC ¶145.) Plaintiff alleges the illegal renting of the Subject Building and Subject Property occurred during Jones’ ownership and management of the Subject Property and continued during Talan’s and Ivan’s and Alina’s respective ownership and management of the Subject Building. (SAC ¶145.) Plaintiff alleges on or around January 10, 2020, Talan issued an improper eviction notice to Plaintiff with a notice date of January 7, 2020. (SAC ¶146.)

Plaintiff alleges on or around March 3, 2020, Plaintiff sent a letter to HCIDLA about the Subject Property’s electrical issues, the Defendants not cleaning the many pine needles on the premises’ walkways (which had caused him to slip and fall), hazards such as needles next to gasoline and the battery from smoke detector removed during construction, and bars on his windows which were not proper as they did not have a release which could cause him to be trapped in his apartment if there were a fire or other emergency. (SAC ¶147.)

Plaintiff alleges on or around May 11, 2020, Talan entered the Subject Property without consent or permission and threw out much of Plaintiff’s personal property refusing to cash Plaintiff’s rent checks and continuing with their illegal eviction proceedings. (SAC ¶148.) Plaintiff alleges Defendants, and each of them, willfully, knowingly, and purposefully retaliated against Plaintiff for asserting his rights regarding the aforementioned acts and omissions of Defendants, and each of them, by taking certain actions, or failing to act, in a manner that was intended to actually and substantially harass Plaintiff and to evict and/or constructively evict Plaintiff from the Subject Property. (SAC ¶149.)

Plaintiff alleges as a direct and proximate result of Defendants’ retaliatory acts, Plaintiff was injured in his emotional health and suffered fear, discomfort, mental and physical injuries and mental distress in an amount to be proven at trial. (SAC ¶150.) Plaintiff alleges as a direct and proximate result of Defendants’ retaliatory acts, Plaintiff was injured by the Defendants’ deprivation of a safe, secure, healthy, and comfortable dwelling for Plaintiff. (SAC ¶151.)

Plaintiff alleges despite failing to ever remedy any of the issues noted by the HCIDLA, Defendants continued with their eviction proceedings. (SAC ¶152.) Plaintiff alleges Plaintiff was constructively evicted in or around October 7, 2020. (SAC ¶153.) Plaintiff alleges due to the Defendants’ conduct and the Subject Property’s uninhabitable conditions, Plaintiff was constructively evicted from the Subject Property on or around October 7, 2020. (SAC ¶154.) Plaintiff alleges Defendants’ retaliatory acts and omissions were knowing, intentional, willful, and malicious, and were done with full knowledge of the discomfort, fear, distress, and annoyance such retaliatory acts would cause Plaintiff, and were further done in conscious disregard of the rights of Plaintiff. Plaintiff therefore is entitled to exemplary damages in such an amount that is adequate to punish and make an example of Defendants, and each of them, and are further entitled to attorney’s fees in accordance with Civil Code §1942.5. (SAC ¶155.)

Plaintiff fails to allege that when Plaintiff sent a written complaint to HCIDLA for the purpose of obtaining correction of a condition relating to tenantability, that Talan was put on notice of the Complaint and that any inspection or citation resulted from the complaint. (See SAC ¶147.) Plaintiff fails to allege any inspection or citation resulted from his complaint to HCIDLA. (See SAC ¶147.)

Accordingly, Talan’s demurrer to Plaintiff’s 11th cause of action for retaliation is sustained with 20 days leave to amend.

Talan’s demurrer to Plaintiff’s SAC is overruled as to the 1st and 8th causes of action and sustained with 20 days leave to amend as to the 11th cause of action.

In light of the Court’s ruling on the demurrer, Talan’s motion to strike is denied as moot.

Hon. Daniel M. Crowley

Judge of the Superior Court