Judge Daniel M. Crowley, Case Number: 21STCV47094, Date: 2024-03-27 Tentative Ruling

Defendant Elena Talan’s demurrer to Plaintiff Marcus Briggans’ first amended complaint is overruled as to the 1st, 6th, 8th, 9th, and 10th causes of action.

Defendant Elena Talan (“Talan”) (“Defendant”) demurs to Plaintiff Marcus Briggans’ (“Briggans”) (“Plaintiff”) first amended complaint (“FAC”). (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f), 430.50(a).) Talan also moves to strike portions of the FAC. (Notice of MTS, pgs. 1-3; 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 ¶7, Exh. 4.) 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 ¶7.) 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 ¶8, Exh. 5.)

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 #4, Los Angeles, CA 90028 (“Subject Building”). (FAC ¶¶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. (FAC ¶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”). (FAC ¶20.) Plaintiff alleges he was forced to move out of the Subject Property in or around March 2020 due to the various habitability problems and due to Defendants’ attempts to illegally remove Plaintiff from the Subject Property. (FAC ¶49.)

On December 27, 2021, Plaintiff filed his original complaint (“Complaint”). On September 25, 2023, Plaintiff filed the operative FAC against Defendants alleging eleven 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) retaliation; (10) wrongful eviction; and (11) discrimination.

On October 23, 2023, Talan filed the instant demurrer and motion to strike. On March 15, 2024, Plaintiff filed his opposition. On March 19, 2024, Talan filed her reply.

In support of her demurrer to Plaintiff’s FAC, Talan demurs to the 1st, 6th, 8th, 9th, and 10th causes of action, arguing the 1st and 8th causes of actions fail to state facts sufficient to constitute causes of action, and the 6th, 9th, and 10th causes of action are barred by the statute of limitations. (Demurrer, pgs. 3-4; C.C.P. §§430.10(e), 340(a).)

“[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 he resided at the Subject Property pursuant to a written rental agreement whereby Plaintiff rented the Subject Property for an agreed upon monthly sum of $850.00 (Eight Hundred and Fifty Dollars). (FAC ¶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. (FAC ¶55.) Plaintiff alleges he performed the obligations under the Lease or has otherwise been excused from said performance. (FAC ¶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. (FAC ¶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. (FAC ¶59.) Plaintiff alleges Defendants did not properly remediate these issues to the detriment of Plaintiff. (FAC ¶59.)

Plaintiff alleges Defendants began massive construction near the Subject Property which fundamentally changed the nature of Plaintiff’s tenancy. (FAC ¶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. (FAC ¶60.)

Plaintiff alleges Defendants and/or their agents collected rent from Plaintiff throughout the period during which the substandard conditions listed above have existed. (FAC ¶61.) Plaintiff alleges these substandard conditions at the Subject Property were not caused by acts or omissions of Plaintiff. (FAC ¶62.) Plaintiff alleges as a result of the Defendants’ actions and inaction, Plaintiff suffered damages in an amount to be proven at trial. (FAC ¶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 FAC ¶¶19 and 55. Further, Plaintiff attached a copy of the Lease to his FAC, which states the material terms and conditions of the contract. (FAC ¶17, Exh. A.) Plaintiff alleges his full performance of the contract or excuse for nonperformance. (FAC ¶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. (FAC ¶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. (FAC ¶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. (FAC ¶113.) Plaintiff alleges Defendants acted with reckless disregard to the probability that Plaintiff would suffer emotional distress, knowing that Plaintiff lived in the Subject Property with the dangerous and uninhabitable conditions. (FAC ¶114.) Plaintiff alleges Defendants attempted to illegally remove Plaintiff and tried to scare Plaintiff into vacating the premises when he was not required to do so. Defendants were also hostile towards Plaintiff in order to get him to leave the Subject Property. (FAC ¶115.)

Plaintiff alleges Defendants knew that Plaintiff lived in the Subject Property with the dangerous and uninhabitable conditions and Defendants knew that Plaintiff had a right to remain at the Subject Property. (FAC ¶116.) 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. (FAC ¶117.)

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. (FAC ¶118.) Plaintiff alleges on information and belief that Defendants sought to punish the Plaintiff for seeking redress from the housing authority about the conditions at the Subject Property. (FAC ¶119.) Plaintiff alleges when he refused to leave the Subject Property, Defendants made it their mission to annoy, vex and harass Plaintiff. (FAC ¶119.) Plaintiff alleges Defendants knew that their actions would cause severe emotional distress and yet they continued this behavior until Plaintiff was ultimately forced to vacate. (FAC ¶119.)

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 ¶117.) Plaintiff sufficiently alleges Talan abused a relation or position which gives her power to damage the Plaintiff’s interest. (FAC ¶¶19-20, 39, 52; 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.

C.C.P. §340(a) provides that a plaintiff must commence, within one year, “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual . . . except if the statute imposing it prescribes a different limitation.” (C.C.P. §340(a).)

Talan argues Civil Code §1942.4 is subject to C.C.P. §340(a)’s one year statute of limitations. However, courts have considered the statute of limitations for a statute allowing for actual damages and a mandatory penalty to have two statutes of limitations, and that the shorter statute of limitations is severable. (See G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 279 [“Here, as in Ashland, appellant’s requests for actual and treble damages are based upon separate statutes contained within the same act. Appellants claim compensatory damages pursuant to section 17070, and request trebling of those damages in accordance with section 17082. Since these claims are patently severable, and the actual damages are not in the nature of a ‘penalty or forfeiture,’ we conclude that appellants are entitled to recover all actual damages which accrued within three years of the filing of the complaint, and that all of such damages which accrued within one year prior to the filing of the complaint may be trebled under section 17082.”].)

Accordingly, Talan’s demurrer to Plaintiff’s 6th cause of action 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.

Talan argues Plaintiff’s retaliation cause of action is premised on Civil Code §1942.4 is therefore subject to C.C.P. §340(a)’s one year statute of limitations. The Court disagrees for the same reasons stated in Talan’s demurrer to the 6^th cause of action.

Accordingly, Talan’s demurrer to Plaintiff’s 9th cause of action for retaliation is overruled.

Talan argues Plaintiff’s wrongful cause of action is premised on Talan’s alleged violation of the Los Angeles Rent Stabilization Ordinance (“RSO”), codified as Los Angeles Municipal Code §§151.00 et seq. is therefore subject to C.C.P. §340(a)’s one year statute of limitations because it provides for mandatory civil penalties. (See LAMC §151.30.)

Any person who demands, accepts or retains any payment of rent in excess of the maximum rent or maximum adjusted rent in violation of the provisions of this chapter, or any regulations or orders promulgated hereunder, shall be liable in a civil action to the person from whom such payment is demanded, accepted or retained for damages of three times the amount by which the payment or payments demanded, accepted or retained exceed the maximum rent or maximum adjusted rent which could be lawfully demanded, accepted or retained together with reasonable attorneys’ fees and costs as determined by the court.

The Court disagrees for the same reasons stated in Talan’s demurrer to the 6th cause of action. (See G.H.I.I., 147 Cal.App.3d at pg. 279 [“Here, as in Ashland, appellant’s requests for actual and treble damages are based upon separate statutes contained within the same act. Appellants claim compensatory damages pursuant to section 17070, and request trebling of those damages in accordance with section 17082. Since these claims are patently severable, and the actual damages are not in the nature of a ‘penalty or forfeiture,’ we conclude that appellants are entitled to recover all actual damages which accrued within three years of the filing of the complaint, and that all of such damages which accrued within one year prior to the filing of the complaint may be trebled under section 17082.”]; see id. [“It is necessary to add that the complaint is not, in any event, subject to demurrer for violation of the statute of limitations. It is only when a complaint shows on its face that it is necessarily barred, rather than possibly, that a demurrer on such grounds will be sustained.”], internal citations omitted.)

Accordingly, Talan’s demurrer to Plaintiff’s 9th cause of action for retaliation is overruled.

Talan’s demurrer to Plaintiff’s FAC is overruled as to the 1st, 6th, 8th, 9th, and 10th causes of action.

Talan moves to strike the following portions of Plaintiff’s FAC: (1) Complaint at 2:7; (2) Complaint at 5:5; (3) ¶25; (4) ¶29; (5) ¶51; (6) ¶92; (7) ¶102; (8) ¶107; (9) ¶124; (10) ¶133; (11) ¶144; (12) Complaint 22:22; and (13) Complaint 22:23, on the grounds that: (1) the punitive damage allegations in the FAC are unsupported by a factual showing of malice, oppression or fraud; (2) references to Defendants acting collectively at any time prior to Defendant Talan’s involvement with the subject property are false and improper as to Defendant Talan; and (3) statements intended only to inflame, such as “slum housing,” are improper and should be stricken. (MTS, pgs. 2-3; C.C.P. §§435, 436.)

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading,” or any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436.)

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code §3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Id.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Id.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff alleges an array of habitability issues that Defendants were aware of but failed to cure including insect roof leaks, mold infestation, cockroach infestation and a broken water heater. (See FAC ¶¶22-23, 30-39.) Further, Plaintiff alleges that he notified the Defendants on multiple occasions about the habitability concerns via various forms of communication, yet the issues he raised were not remediated. (See FAC ¶24-25, 51.)

Accordingly, Talan’s motion to strike Plaintiff’s requests for punitive damages is denied.

Defendant Talan moves for this Court to strike allegations predating her involvement with the Subject Property and language referring to the Subject Property as “slum-housing” or that Defendants are “slum lords.” (MTS, pgs. 9-11.)

For the purposes of a demurrer or motion to strike, the court must consider all allegations in the complaint to be true. Moreover, courts have continually ruled that “line-item vetoes” are not proper for a motion to strike. (See PH III Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) First, Plaintiff’s allegations predating Defendant Talan’s involvement with the Subject Property are relevant to his allegations regarding habitability issues. Second, the term “slum-housing” has been repeatedly recognized as a phrase to describe substandard living conditions generally in lower income areas. (See Apartment Association of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 834.)

Hon. Daniel M. Crowley

Judge of the Superior Court