Judge Daniel M. Crowley, Case 22STCV21103 2022-12-19 Tentative Ruling

Judge: Daniel M. Crowley, Case: 22STCV21103, Date: 2022-12-19 Tentative Ruling

Case Number: 22STCV21103 Hearing Date: December 19, 2022 Dept: 28

Defendant Path’s Demurrer with Motion to Strike.

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 29, 2022, Plaintiff Na Wang (“Plaintiff”) filed this action against Defendant Path (“Defendant”) for assault, battery, abuse and negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, conversion, intentional interference with city ordinance and lost earnings.

On October 27, 2022, Defendant filed a Demurrer with Motion to Strike to be heard on December 6, 2022. The Court continued the hearing on the motion to December 20, 2022.

Trial is scheduled for December 27, 2023.

PARTY’S REQUESTS

Defendant requests the Court sustain the demurrer as to the entire complaint, on the basis that Plaintiff fails to plead sufficient facts to state a claim. Defendant also requests the Court strike cumulative paragraphs, requests for punitive damages, allegations of malice, and requests for attorney’s fees.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

“It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-904.)

The doctrine of “negligent infliction of emotional distress” is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928.)

“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, but this time limitation shall not apply to motions specified in subdivision (e).” (CCP § 435(b)(1), italics added.) “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (CRC 3.1322(b), italic added.) “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.” (CCP § 471.5(a).)

“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.” (CCP § 437(a).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ivanoff v. Bank of America, 9 Cal.App.5^th 719, 725.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “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.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

“Under the statute, ‘malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299, internal citations omitted.)

“Landlords...ordinarily have no duty to reject prospective tenants they believe, or have reason to believe, are gang members... With regard to eviction, we agree that a residential tenant's behavior and known criminal associations may, in some circumstances, create such a high level of foreseeable danger to others that the landlord is obliged to take measures to remove the tenant from the premises or bear a portion of the legal responsibility for injuries the tenant subsequently causes.” Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1210. Merely being a gang member is not enough to establish heightened foreseeability; there must be specific incidents giving rise to a heightened foreseeability of violence. Id. At 1221.

“Thus, before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.” Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131-1132.

“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.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 354 P.3d 334].)

DISCUSSION

Plaintiff alleges that Defendant failed to provide Plaintiff with a safe housing environment. Plaintiff specifically alleges that Defendant placed Plaintiff in apartment units with a “mentally ill woman”, a “mentally ill person” and a “crazy woman,” all of whom made her feel unsafe. She specifically alleges that multiple roommates stole from and touched her without permission. Plaintiff allegedly reported this behavior to Defendant’s employee, Plaintiff’s case manager, who refused to assist Plaintiff. Plaintiff alleges that the case manager took Plaintiff’s things and refused to return them to Plaintiff.

Assault and Battery

Plaintiff has not pled a cause of action for assault or battery against Defendant. Both causes of action are intentional torts—meaning that they both require intent, by Defendant, to do harm. As an employer, under a theory of intentional tort, Defendant is only liable for the actions of an employee or agent of Defendant’s company. Plaintiff’s complaint does not allege that any employee or agent of Defendant assaulted Plaintiff. Instead, it alleges that a tenant assaulted Plaintiff; unless Plaintiff argues that there is an agency relationship between the parties, there is no connection that would make Defendant liable for assault. The Court sustains the demurrer to these causes of action.

Intentional Infliction of Emotional Distress

Plaintiff’s cause of action for IIED specifically alleges that Defendant’s case manager intentionally abused her by “not caring about the condition of the unit, open[ing] her letter, [and] searching items without her consent.” She makes specific notes of times in which the case manager ignored her requests, locked her out of the housing complex and took possession of Plaintiff’s property without consent.

A cause of action for IIED requires (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, 1050-1051.)

The Court finds that Plaintiff’s claims do not meet the standard of extreme and outrageous. For conduct to be considered to be considered extreme and outrageous, it must exceed all bounds of civilized society. Defendant is a transitional housing facility for unhoused individuals; upon entering the program, tenants agree to be subject to monitoring and searching of their units. Making decisions to keep Plaintiff with certain roommates, given the intent of the housing complex, is also not considered to exceed all bounds of civilized society. The Court sustains the demurrer as to this cause of action.

Negligent Infliction of Emotional Distress

Defendant argues that there is no distinct cause of action for Negligent Infliction of Emotional Distress in California; this is true. In California, NIED claims are considered to be negligence claims that seek damages solely for emotional damages. However, as there is no cause of action for negligence, this is not duplicative. Instead, the Court evaluates the claim on the basis of a general negligence claim.

Defendant argues that Plaintiff’s cause of action for negligence cannot succeed, as Defendant was not on notice as to any alleged violent tendencies that would make the harm foreseeable. Plaintiff’s complaint does not allege that said tenants had any record of violent behavior—it also does not clearly allege that Defendant forced Plaintiff to continue living with said tenants after they attacked Plaintiff. So long as Defendant removed the violent tenants from Plaintiff’s housing unit, there is no basis to find negligence. The Court sustains the demurrer, as there is no indication of negligence at this time.

Conversion

Plaintiff alleges that Defendant took possession of Plaintiff’s personal belongings and subsequently destroyed said items without Plaintiff’s consent. The Court finds that this is sufficient to constitute a cause of action for conversion. Plaintiff clearly alleges that Defendant’s employee controlled her property, without her consent, and damaged her by permanently depriving her of said property. The Court overrules the demurrer as to this cause of action.

Intentional Interference with City Ordinance

Plaintiff’s cause of action stems from the Los Angeles City Ordinance that provided a list of precautions to take in order to prevent the spread of COVID-19. Plaintiff has provided no basis as to why Plaintiff has the right to enforce a City Ordinance as a private citizen. There are no affirmative obligations placed on landlords within the ordinance. The Court sustains the demurrer for a failure to state a cause of action.

Lost Earnings

There exists no cause of action for “Lost Earnings”. “Lost Earnings” is a potential form of damages rather than a cause of action. The Court sustains the demurrer as to this cause of action.

Motion to Strike

Defendant first requests the Court strike ¶22-34, as it is duplicative of ¶¶9-21. The Court agrees, finding the identified sections to be an exact replica of the previous, and strikes the cumulative text.

All references to malice identified are within the first through fourth causes of action, all of which the Court has already sustained on demurrer. Therefore, the request to strike these paragraphs is moot. Similarly, any requests as to punitive damages or attorney’s fees for the first through fourth, and sixth through seventh causes of action are moot.

The only remaining potential avenue for attorney’s fees or punitive damages is the fifth cause of action, for conversion. The Court does not find there is a basis for punitive damages for conversion, as pled. Plaintiff does not clearly allege that Defendant controlled and destroyed Plaintiff’s property with intent to do harm. As such, the Court finds the facts insufficient to find malice. Similarly, the facts do not support a finding of oppression or fraud.

Attorney’s fees must be expressly recoverable via statute. Attorney’s fees are not recoverable as damages in actions for conversion. W. R. Bradshaw & Co. v. Eggers, 27 Cal. App. 132, 134. The Court strikes the request for attorney’s fees.

CONCLUSION

Defendant Path’s Demurrer is SUSTAINED, in part, with 30 days leave to amend. The Court sustains the demurrer to the first, second, third, fourth, sixth and seventh causes of action. The Court OVERRULES the demurrer as to the fifth cause of action for conversion.

Defendant Path’s Motion to Strike is GRANTED, in part, with 30 days leave to amend. The motion to strike is granted as to the cumulative paragraphs and request for punitive damages and attorney’s fee as to the fifth cause of action. All other requests are MOOT.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.