SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 71

TENTATIVE RULING

KELLYN ZUNIGA,

  

         vs.

VANESSA MUNLEY. Case No.:  22STCV38364

 Hearing Date:  June 29, 2023

Defendant Vanessa Munley’s demurrer to the complaint of Plaintiff Kellyn Zuniga is overruled as to the 2nd cause of action.

Defendant’s motion to strike Plaintiffs’ claim for punitive damages is granted without leave to amend.

On December 8, 2022, Plaintiff filed the operative complaint in the instant action against Defendant alleging nine causes of action: (1) declaratory relief; (2) Business and Professions Code §17200; (3) unlawful retention of security deposit under Civil Code §1950.5; (4) breach of residential lease; (5) negligence [erroneously labeled as the 6th cause of action]; (6) conversion [erroneously labeled as the 4th cause of action]; (7) breach of statutory warranty of habitability – tort [erroneously labeled as the 5th cause of action]; (8) breach of implied warranty of habitability [erroneously labeled as the 6th cause of action]; and (9) violation of Civil Code §1942.5 [erroneously labeled as the 7th cause of action].   Plaintiff’s causes of action stem from her tenancy at a rental home located at 1307 W. 56th St. Los Angeles, CA 90037 (“Rental Unit”), which she rented from Defendant.  (Complaint ¶¶15-16.)

On February 2, 2023, Defendant filed the instant demurrer and accompanying motion to strike. Plaintiff filed her oppositions on June 14, 2023.  Defendant filed her replies on June 26, 2023.

Summary of Allegations

Plaintiff alleges as a term of the agreement to rent the rental, a security deposit had to be paid by Plaintiff in the amount of $2,300.00 and Plaintiff paid that amount Defendant.  (Complaint ¶17.)  Plaintiff alleges she moved into the Rental Unit on or about March 1, 2020.  (Complaint ¶18.)  Plaintiff alleges based on notice provided by either the landlord or the tenant, Plaintiff moved out of the home on or about October 1, 2022.  (Complaint ¶19.)  Plaintiff alleges Defendant illegally took money it was holding as a security deposit from Plaintiff.  (Complaint ¶21.)  Plaintiff alleges Defendant did not comply with California law as it concerns the rights to the initial inspection which belonged to Plaintiff.  (Complaint ¶26.)  Plaintiff alleges Defendant failed to notify Plaintiff, in writing, about their right to an initial inspection, and therefore any deductions from the security deposit are per se illegal.  (Complaint ¶27.)  Plaintiff alleges since she was not aware of her right to an initial inspection, she did not request one, and it was never performed.  (Complaint ¶28.)  Plaintiff alleges she was explicitly told that she could not make repairs to prevent deductions from her deposit, explaining to Plaintiff that: “it comes out more expensive for her [the Defendant] to re-fix what we [Plaintiff] try to fix.”   (Complaint ¶29.)  

Plaintiff alleges Defendant failed to provide an itemized statement to the Plaintiff within 21 days of Plaintiff moving out.  (Complaint ¶39.)  Plaintiff alleges Defendant illegally deducted money from the Plaintiff security deposit.  (Complaint ¶60.)  Plaintiff alleges Defendant charged Plaintiff security deposit for damages to the home that were the result of normal wear and tear.  (Complaint ¶60.)  Plaintiff alleges Defendant charged Plaintiff security deposit for damages to the home, but charged the full replacement costs, rather than deducted from the replacement cost the use of life or depreciating the cost of the item replaced to present value. (Complaint ¶60.) Plaintiff alleges Defendant charged Plaintiff security deposit for cleaning, when the rental unit was returned to the Defendant in either the same, or a cleaner condition that it was received.  (Complaint ¶60.)  Plaintiff alleges Defendant charged Plaintiff security deposit unreasonably and unfairly by overcharging for deductions made, rather than charging a fair and reasonable costs for what needed to be remedied.  (Complaint ¶60.)

Plaintiff alleges she complained to the landlord that the bathtub was in serious disrepair and could no longer be used.  (Complaint ¶67.)  Plaintiff alleges Defendant sent a plumber to the home to inspect the bathtub and obtain a quote. The plumber told the Plaintiff the bathtub was worn from decades of use and it was time to replace it.  (Complaint ¶68.)  Plaintiff alleges days later, the landlord then called Plaintiff and said that if the Plaintiff wanted to remain in the home, the Plaintiff needed to pay for the bathtub because the Defendant could not justify the expense of replacing the bathtub for the amount of rent Plaintiff was paying.  (Complaint ¶69.)  Plaintiff alleges she stated she would not pay to replace the bathtub since they did not do the damage and it was the landlord’s responsibility to maintain the home.  (Complaint ¶70.)  Plaintiff alleges Defendants then told Plaintiffs if they would not pay for the repairs, they must leave. Defendants provided notice to Plaintiff that she must vacate.  (Complaint ¶71.)  Plaintiff alleges after she moved out, Plaintiff saw the home advertised as available for rent for nearly the same amount of money Plaintiff was paying, advertised as having new tiles and bathtub.  (Complaint ¶72.)

Plaintiff alleges Defendant unfairly and illegally withheld $2,300.00 from Plaintiff security deposit, which was unexpected.  (Complaint ¶76.)  Plaintiff alleges when she learned that their security deposit was going to be wrongfully and illegally withheld, Plaintiff suffered actual and severe mental and emotional distress.  (Complaint ¶78.)  

A. Demurrer

Legal Standard

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.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [citing text].)  A demurrer admits the truth of all facts pleaded regardless of how unlikely they may be, and evidentiary submissions are not properly considered.  (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 966-967). 

California’s pleading rules require only that there be sufficient notice to defendants of the basis of the claims or defenses at issue.  “What is important is that the complaint as a whole contain sufficient facts to appraise the defendant of the basis upon which the plaintiff is seeking relief.”  (Perkins v. Superior Court (1982) 171 Cal.App.3d 1, 6).

Summary of Demurrer

In support of her demurrer to Plaintiff’s Complaint, Defendant argues Plaintiff’s cause of action for Business and Profession Code § 17200 is legally inappropriate, factually unsupported, and duplicative to the other causes of action and cannot be corrected through an amended pleading.   (Demurrer, pg. 3; C.C.P. §430.30.)  

Failure to State a Claim

Unfair Competition Law (“UCL”) (2nd COA)

A plaintiff must establish the following elements to assert a claim for UCL: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) an authorized remedy.  (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337 [although losses are required for standing, “ineligibility for restitution is not a basis for denying standing under section 17204 . . . .”]; People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1016 [“An ‘unlawful’ practice requires violation of another statute, and a business practice may be ‘unfair’ even if not otherwise proscribed by statute as long as the practice is not expressly authorized by law.”].)

Plaintiff alleges Business and Professions Code 17200-17205 prohibits business acts and practices that are unlawful, unfair and deceptive.  (Complaint ¶90.)  Plaintiff alleges Defendants’ acts and practices alleged above constitute unlawful, unfair and deceptive business practices. (Complaint ¶90.)  

Plaintiff sufficiently alleges in her Complaint multiple violations of the law that meet the requirement for alleging a cause of action under the “unlawful” prong of UCL under Civil Code §1950.5, Health & Safety Code §17920.3, Civil Code §1941.2(3), Civil Code §1941.1(3), and Civil Code §1942.5.  (Complaint ¶¶98-106, 142, 155-162.)  While the body of Plaintiff’s 2nd cause of action is sparse, she sufficiently alleges facts in her Complaint to allege an unfair business practice and an authorized remedy.

Accordingly, Defendant’s demurrer to Plaintiffs’ 2nd cause of action for UCL is overruled.

Conclusion

Defendant’s demurrer to Plaintiff’s Complaint is overruled.

B. Motion to Strike

Summary of Motion

Defendant moves to strike Plaintiff’s request for punitive damages at the following paragraphs and page numbers in Plaintiff’s Complaint: (1) ¶104, Page 17:22-24: “In committing the acts as alleged in this complaint, Defendant acted with malice, oppression and fraud so as to entitle Plaintiff to an award of exemplary and punitive damages in an amount according to proof”; (2) ¶105, Page 17:25-27: “On information and belief, any defendant, owners, officers, directors or managing agents authorized or ratified the wrongful acts herein, if said actions were carried out by their agents and employees”; (3) ¶106, Page 18: 1-2: “On information and belief, any defendant owners, officers, directors or managing agents are personally guilty of oppression, fraud, or malice”; (4) ¶121, Page 19:6-8: “The conduct, as described herein, was wrongful conduct in that Defendant conducted its business in an abusive, oppressive, and harassing manner”; (5) ¶124, Page 19:13-15: “In committing the acts as alleged in this complaint, Defendant acted with malice, oppression, and fraud to entitle Plaintiff to an award of exemplary and punitive damages in an amount according to proof”; (6) ¶125, Page 19:16-18: “On information and belief, any defendant owners, officers, directors, or managing agents authorized or ratified the wrongful acts herein, if said actions were carried out by their agents and employees”; (7) ¶126, Page 19:19-20: “On information and belief, any defendant owners, officers, directors or managing agents are personally guilty of oppression, fraud, or malice”; (8) ¶132, Page 20: 13-20: “In engaging in this described conduct, Defendant intended to cause injury to the Plaintiff or was despicable conduct carried on by defendant with a willful and conscious disregard of the rights of Plaintiff, and/or despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights, and/or was an intentional misrepresentation, deceit, or concealment of a material fact known to the Defendant with the intention on the part of Defendant of thereby depriving a person of property or legal rights or otherwise causing injury….”; (9) ¶133, Page 21:1-4: “Finally, Defendant knew that the security deposit would be wrongfully withheld, despite assurances in the leasing agreement and requirements by law that the security was to be promptly returned, thereby entitling Plaintiff to an award of punitive damages”; (10) ¶135, Page 21:7-8: “Punitive damages are supported by the fact that, on information and belief, Defendant also engaged in similar conduct in the past”; (11) ¶137, Page 21:11-12: “Defendant acted with oppression, and/or malice, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial”; (12) ¶138, Page 21:13-14: “On information and belief, any Defendant owners, officers, directors or managing agents authorized or ratified the wrongful acts herein”; (13) ¶139, 21:15-16: “On information and belief, any Defendant owners, officers, directors or managing agents are personally guilty of oppression, fraud or malice”; (14) ¶147; Page 23: 5-6: “Defendant acted with oppression, and/or malice, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial”; (15) ¶152, Page 23: 24-24:2: “but after repeated notice, both actual and constructive, the defendants’ failure to comply with the relevant habitability statutes can be interpreted as reckless or intentional refusal to comply with obligations imposed by statutes. This refusal to maintain the property is the sort of malicious action that justifies an award of treble damages or other statutory or common law damages”; (16) ¶154, page 24:5-6: “Defendant acted with oppression, and/or malice, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial”; (17) ¶159, Page 24: 22-23: “Moreover, Plaintiffs are entitled to attorneys’ fees incurred in this action pursuant to Code of Civil Procedure § 1942.5”; (18) ¶160, Page 24: 24-26: “Civil code § 1942.5, subdivision (h) states that “any lessor or agent of a lessor” who violates this section shall be liable to a lessee in a civil action for actual damages, punitive damages, and prevailing party attorney’s fees”; (19) ¶162, Page 25: 1-2: “Defendant acted with oppression, and/or malice, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial”; (20) Prayer (B)(ii): “Plaintiff demand three times the amount awarded as punitive damages, according to proof”; (21) Prayer (E): “Punitive damages”; and (22) Prayer (F) “Plaintiff seeks an award of attorney’s fees”.  (Motion, pgs. 2-4; C.C.P. §436(a).)

Legal Standard

A motion to strike lies either to strike any “irrelevant, false or improper matter inserted in any pleading”; or to strike 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
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.) withPlaintiff fails to allege facts that would constitute “malice, fraud or oppression” or would reflect “despicable conduct” on behalf of Defendant.  Allegations of carelessness characterized as negligence or recklessness, is not sufficient to support an award of punitive damages.  (See Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286.)  Moreover, Plaintiff cannot recover punitive damages for violation of the Civil Code §§1942, et seq. because a cannot recover punitive damages based solely on a statutory violation where the statute expressly provides for a penalty that is punitive in nature.  (De Anza Santa Cruz Mobile Estates Homeowners Assoc. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal. App. 4th 890, 914-915 [stating “[w]e have found no persuasive authority for the proposition that plaintiff is allowed to recover punitive damages based solely on a statutory violation where the statute expressly provides for a penalty that is punitive in nature”].)  Accordingly, Defendant’s motion to strike punitive damages is granted without leave to amend. 

Conclusion

Defendant’s motion to strike Plaintiff’s request for punitive damages is granted without leave to amend.

Dated:  June ____, 2023

Hon. Daniel M. Crowley 

Judge of the Superior Court