Judge Daniel M. Crowley, Case Number: 23STCV09982, Date: 2023-10-25 Tentative Ruling

Defendant Dev Air Solutions, Inc.’s demurrer to Plaintiffs Krysta Jaime and Kaleb Gonzalez’s first amended complaint is sustained with 20 days leave to amend as to the 3rd cause of action.

Defendant Dev Air Solutions, Inc. (“Dev Air”) (“Defendant”) demurs to Plaintiffs Krysta Jamie’s (“Jamie”) and Kaleb Gonzalez’s (“Gonzalez”) (collectively, “Plaintiffs”) first amended complaint (“FAC”). (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f).) Defendant also moves to strike portions of the FAC. (Notice of Demurrer, pg. 2.)

Plaintiffs filed their initial Complaint on May 3, 2023. On June 23, 2023, Plaintiffs filed the operative FAC against Dev Air, and non-moving Defendants 2018-1 IH Borrower LP (“Borrower LP”) and 2018-1 IH Borrower GP LLC (“Borrower LLC”) (collectively, “Defendants”), alleging six causes of action: (1) breach of implied warranty of habitability; (2) tortious breach of implied warranty of habitability; (3) negligence; (4) intentional infliction of emotional distress; (5) private nuisance; and (6) violation of Business and Professions Code §§17200.

This action arises out of Plaintiffs’ tenancy at real property located at 14918 Prichard St., La Puente, CA 91744 (“Property”). (FAC ¶2.) Plaintiffs allege on information and belief that the wall furnace heater at the Property has been leaking excessive amounts of carbon monoxide every time it has been turned on since the inception of Plaintiffs’ tenancy in September 2021. (FAC ¶13a.)

Plaintiffs allege the Gas Company red-tagged the wall furnace heater for producing excessive carbon monoxide in February 2023. (FAC ¶13a.) Plaintiffs allege Defendants had never properly serviced the wall heater throughout Plaintiffs’ tenancy. (FAC ¶13a.) Plaintiffs allege prior to February 2023, Borrower LP sent Dev Air on several occasions to work on the wall furnace heater at the Property as it would constantly turn off. (FAC ¶13a.) Plaintiffs allege despite these multiple visits Dev Air did not properly service the heater and did not address the fact that there were obvious signs of carbon monoxide exposure as the wall furnace heater was producing a smothering flame. (FAC ¶13a.) Plaintiffs allege Dev Air would simply come to re-light the pilot light and did not otherwise service the obvious defects visible in the heater. (FAC ¶13a.) Plaintiffs allege Defendants have refused to maintain the wall heater in good working order as required by law. (FAC ¶13a.)

Plaintiffs allege on information and belief that throughout the entire duration of their tenancy up to the time that the Gas Company red-tagged the wall furnace heater, that the property carbon monoxide detector at Property did not have sufficient batteries to operate the detector. (FAC ¶13b.) Plaintiffs allege it was only after the Gas Company red-tagged the wall furnace heater that Plaintiffs first learned that the carbon monoxide detector did not have sufficient batteries to operate. (FAC ¶13b.)

On June 29, 2023, Dev Air filed the instant demurrer and motion to strike. On October 12, 2023, Plaintiffs filed their opposition. On October 18, 2023, Dev Air filed its reply.

Dev Air demurs on the basis that Plaintiff’s 3rd cause of action for negligence fails to state facts sufficient to constitute causes of action against it and is uncertain, ambiguous, and unintelligible. (Demurrer, pg. 2; C.C.P. §§430.10(e), (f).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a).) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendant’s counsel’s declaration states he spoke to Plaintiffs’ counsel on the telephone addressing his client’s basis for demurring to the initial Complaint and attempted to make telephonic contact with Plaintiffs’ counsel regarding deficiencies in the FAC. (Decl. of Teague ¶¶3-4.) Defendant’s counsel’s declaration is sufficient under C.C.P. §430.41(a)(3).

“[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.)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.). “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) In general, “each person has a duty to use ordinary care and ‘is liable for injuries caused by his failure to exercise reasonable care in the circumstances. . . .’” (Id.). “Absent a statutory exception to this general rule, courts should find an exception to the duty of reasonable care only where “clearly supported by public policy. [Citations.]” (Id.)

Under the doctrine of nondelegable duties, a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726, citing Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 259-260; see 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts § 1020, pg. 411.) “The duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable. If an independent contractor, no matter how carefully selected, is employed to perform it, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition[.]” (Srithong, 23 Cal.App.4th at pg. 726, quoting Brown, 23 Cal.2d at pg. 260.)

Plaintiffs allege at all times referenced herein, Defendants owed a non-delegable and non-waivable duty to Plaintiffs to operate, manage, and repair the Property consistent with the terms of the Plaintiffs’ lease, the warranty of habitability implied in all residential leases, and applicable law. (FAC ¶36.) Plaintiffs allege Defendants’ duty of care included the obligation to provide Plaintiff with safe and habitable housing that complied with all applicable state and local laws, ordinances and regulations governing the care and maintenance of residential dwellings including those set forth in Civil Code §§1941 and 1941.1, Health & Safety Code §17920.3, the California Code of Regulations, the Los Angeles County Code, local codes and other statutes, regulations, or local ordinances designed and intended to regulate the operation and management of rental properties. (FAC ¶37.)

Plaintiffs allege Defendants failed to properly operate and manage the Property as required by law. (FAC ¶38.) Plaintiffs allege Defendants have breached their duty of care by failing to properly repair, operate and maintain the Property with respect to the gas appliances. (FAC ¶38.) Plaintiffs allege Defendants’ breach of the applicable standard of care forced Plaintiffs to live in an uninhabitable dwelling with gas leaks and carbon monoxide exposure as well as the lack of functioning carbon monoxide detectors which harmed Plaintiffs. (FAC ¶38.) Plaintiffs allege Defendants’ violation of applicable statutes, ordinances and regulations constitutes negligence per se. (FAC ¶38.)

Plaintiffs fail to allege Dev Air owed Plaintiffs a duty by way of Plaintiffs’ landlords’ nondelegable duty to maintain the Property in a reasonably safe condition. (Srithong, 23 Cal.App.4th at pg. 726.) Plaintiffs fail to allege Dev Air’s duty to Plaintiffs arose from a contractual duty or duty other than the nondelegable duty of their landlords.

Plaintiffs state that, if necessary, they can allege additional facts to support their claim for negligence against Dev Air. (Opposition, pg. 5.)

Accordingly, Dev Air’s demurrer to Plaintiff’s 3rd cause of action for negligence is sustained with 20 days leave to amend.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)

Plaintiffs’ cause of action for negligence is not so uncertain that Dev Air cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against it.

Dev Air’s demurrer to Plaintiffs’ FAC is sustained with 20 days leave to amend as to the 3rd cause of action for negligence.

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

Hon. Daniel M. Crowley

Judge of the Superior Court