Judge Daniel M. Crowley, Case Number: 24STCV03832, Date: 2024-07-30 Tentative Ruling

Defendants FG Property Management, Inc.’s and 412 Coronado Terrace, LLC’s demurrer to Plaintiffs Brittany Perez’s, Owen Perez’s, Joy Perez, by and through her GAL Evelyn W. Tamayac’s, 3rd cause of action in their Complaint is sustained with 20 days leave to amend.

Defendants FG Property Management, Inc. (“FG”) and 412 Coronado Terrace, LLC (“412 Coronado”) (collectively, “Defendants”) demur to Plaintiffs Brittany Perez’s (“Brittany”), Owen Perez’s (“Owen”), and Joy Perez by and through her GAL Evelyn W. Tamayac’s (“Joy”) (collectively, “Plaintiffs”) complaint (“Complaint”) on the grounds the 3rd cause of action for intentional tort does not state facts sufficient to constitute a cause of action. (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10(e).)[1]

Before filing a demurrer, the moving 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, emphasis added.)

Defendants’ counsel declares that on June 11, 2024, he spoke with Plaintiffs’ attorney telephonically and discussed the deficiencies stated in Defendants’ demurrer. (See Decl. of Koumoulis ¶3.) Defendants’ counsel declares that he and Plaintiff’s counsel were not able to reach resolution resolving the demurrer. (Decl. of Koumoulis ¶3.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41. Accordingly, the Court will consider Defendants’ demurrer.

Plaintiffs sue for an alleged exposure to mold in the premises they rented from Defendants. Plaintiffs filed the operative Complaint on February 15, 2024, against Defendants alleging six causes of action: (1) premises liability; (2) general negligence; (3) intentional tort; (4) private nuisance; (5) tortious breach of warranty of habitability; and (6) negligent infliction of emotional distress. Plaintiffs’ causes of action arise from mold growing within the walls of their residence at 412 North Coronado Terrace, Apt. 7, Los Angeles CA. (See Complaint ¶Prem.L-1.)

Defendants filed the instant demurrer on June 17, 2024. Plaintiffs filed their opposition on June 25, 2024. Defendants filed their reply on July 24, 2024.

Defendants demur to the 3rd cause of action for “intentional tort” on the basis the claim does not allege “with great specificity” conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Demurrer, pg. 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.)

To allege a cause of action for intentional infliction of emotional distress a plaintiff must allege the following: (1) outrageous conduct by the defendant; (2) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe emotional distress; and (4) an actual and proximate causal link between the tortious conduct and the emotional distress. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 253.)

“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.” (McDaniel v. Gile (1991) 230 Cal. App.3d 363, 372.) “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)

Plaintiffs allege Defendants’ conduct was outrageous, that Defendants acted with reckless disregard of the probability that Plaintiffs would suffer emotional distress, knowing that Plaintiffs were present on said premises when Defendants’ conduct occurred, that Plaintiffs suffered severe emotional distress, and that Defendants’ conduct was a substantial factor in causing Plaintiffs’ severe emotional distress. (Complaint ¶IT-1.)

Plaintiffs fail to allege with any specificity that Defendants’ conduct that was “outrageous” as a matter of law. Plaintiffs fail to allege facts of an actual and proximate causal link between Defendants’ alleged tortious conduct and the emotional distress they suffered.

Accordingly, Defendants’ demurrer to Plaintiffs’ 3rd cause of action is sustained with 20 days leave to amend.

Defendants’ demurrer to Plaintiffs’ 3rd cause of action is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendants do not demur to the 1st, 2nd, 4th, 5th, or 6th causes of action alleged in Plaintiffs’ Complaint.