Judge: Daniel S. Murphy, Case: 24STCV02420, Date: 2024-05-15 Tentative Ruling

Case Number: 24STCV02420    Hearing Date: May 15, 2024    Dept: 32

BACKGROUND

            On January 30, 2024, Plaintiff Mike P. McKelvy filed this action against Defendant Aids Healthcare Foundation, asserting causes of action for breach of habitability, negligence, nuisance, emotional distress, breach of contract, unfair business practices, and fraud. Plaintiff seeks recovery for Defendant’s alleged failure to properly maintain the rented premises where Plaintiff resided.

            On April 2, 2024, Defendant filed the instant demurrer and motion to strike. Plaintiff filed his opposition on May 2, 2024. Defendant filed its reply on May 8, 2024.

LEGAL STANDARD

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. (Code Civ. Proc., § 430.30, subd. (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. (Ibid.) 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, supra, 147 Cal.App.4th at 747.)

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 of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Schwartz Decl.)

DISCUSSION

I. Demurrer

            a. Warranty of Habitability (First through Third Causes of Action)

            A duplicative pleading may be properly stricken if it “adds nothing to the complaint by way of fact or theory.” (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) Plaintiff’s first three causes of action are all for breach of the warranty of habitability, but under different statutory provisions. The first cause of action is premised on Civil Code sections 1941 and 1941.1, the second is premised on Health and Safety Code section 17920.3, and the third is premised on Civil Code section 1942.4.

            Civil Code section 1941 requires the lessor of a building to maintain it in a tenantable condition, whereas Section 1941.1 defines when a dwelling is deemed “untenantable.” Health and Safety Code section 17920.3 similarly defines “substandard building.” None of these statutes provide for a private right of action. Rather, it is Civil Code section 1942.4 that prohibits a landlord from collecting rent if the premises falls within the definition of “untenantable” under Section 1941.1 or “substandard” under Section 17920.3. (Civ. Code, § 1942.4(a).) Section 1942.4 provides that “[a] landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee.” (Id., § 1942.4(b)(1).) Because Civil Code section 1942.4 provides for a private right of action and incorporates the definitions set forth in Civil Code section 1941.1 and Health and Safety Code section 17920.3, Plaintiff’s claims based on the latter two statutes add nothing by way of fact or theory. Plaintiff need only assert a single cause of action under Section 1942.4.

Therefore, the demurrer is SUSTAINED without leave to amend as to the first and second causes of action.

b. Nuisance

“Anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Civ. Code, § 3479.) “It is settled that where conduct which violates a duty owed to another also interferes with that party's free use and enjoyment of his property, nuisance liability arises.” (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1390.) 

The alleged bed bug infestation falls within the definition of nuisance. However, relying on El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, Defendant argues that the nuisance claim is duplicative of the negligence claim and should therefore be stricken. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (Id. at p. 1349.) The court in El Escorial based its holding on a concern that the definition of nuisance “is so broad that it could be applied indiscriminately to everything.” (Id. at p. 1348.) The court therefore held that the toxic mold contamination claim in that case “involves a traditional tort that should not be litigated under the guise of a nuisance action.” (Ibid.) At the same time, the court acknowledged that “courts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions.” (Ibid.) 

            In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, the court held that “[a] nuisance may be either a negligent or an intentional tort.” (Id. at p. 920.) “The fact that the defendants' alleged misconduct consists of omission rather than affirmative actions does not preclude nuisance liability.” (Ibid.) The plaintiff in Stoiber managed to demonstrate intentional conduct by alleging that the landlord had actual knowledge of uninhabitable conditions and “acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.” (Ibid.)

            The complaint here similarly alleges that Defendant knowingly ignored Plaintiff’s complaints regarding the uninhabitable conditions and thereby consciously disregarded Plaintiff’s rights and safety. (Compl. ¶¶ 9, 28-31.) Defendant allegedly maintained a company policy of denial. (Id., ¶ 29.) The complaint also alleges that Defendant’s conduct was intentional and malicious. (Id., ¶ 56.) This sufficiently demonstrates intentional conduct that goes beyond mere lack of due care. Therefore, Plaintiff has adequately pled a nuisance claim apart from negligence. Although Plaintiff cannot recover twice for the same injury, at the pleading stage, “[a] plaintiff may plead cumulative or inconsistent causes of action.” (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565.) Plaintiff is entitled to plead multiple theories arising from the same facts. Therefore, the demurrer is OVERRULED as to the fifth cause of action.

            c. Intentional Infliction of Emotional Distress

            To state a cause of action for intentional infliction of emotional distress, a plaintiff must establish: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “For conduct to be outrageous, it must be so extreme as to exceed all bounds of that usually tolerated by a civilized community.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172.) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.) A landlord’s willful failure to correct defective conditions can constitute intentional infliction of emotional distress. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069.)

            Here, the complaint alleges that for an extended period of time, Plaintiff was subjected to bedbugs in his bed, clothing, and other property and had bedbugs biting him in his sleep, leading to pain and sleeplessness. (Compl. ¶¶ 37-38.) Plaintiff alleges that he persistently complained about the problem but that Defendant intentionally ignored him and continued demanding rent. (Id., ¶¶ 39-41, 145.) Defendant allegedly maintained a corporate policy of denial. (Id., ¶ 29.) As a result, Plaintiff alleges that he experiences sleepless nights, severe mental distress, and other physical conditions. (Id., ¶ 149.) These facts sufficiently establish outrageous conduct and support a reasonable inference that Defendant acted intentionally or at least with reckless disregard.

Defendant attempts to distinguish Burnett on the grounds that Burnett involved a toxic mold contamination, whereas this case merely involves bedbugs. Defendant cannot escape liability by unilaterally deciding that a bedbug infestation is not severe enough. At the pleading stage, it may be reasonably inferred that Defendant engaged in outrageous conduct by intentionally ignoring the infestation. It is for the trier of fact to determine whether a bedbug infestation is sufficiently outrageous.   

            Defendant argues that the complaint admits Defendant attempted to eradicate the bedbugs but merely failed, which does not support outrageous conduct. However, the complaint contains no admission that Defendant addressed the issue and instead alleges repeatedly that Defendant willfully ignored Plaintiff’s complaints. The single mention that the bedbugs “resisted eradication” (Compl. ¶ 38) does not constitute an admission that Defendant addressed the issue. The complaint must be interpreted liberally in Plaintiff’s favor. The description of the bedbugs as difficult to eradicate is not a commentary on what actions Defendant took or did not take. For purposes of a demurrer, it must be assumed true that Defendant ignored the issue upon being notified by Plaintiff and other tenants because that is what the complaint actually alleges.  

            However, Plaintiff’s generic allegations regarding “severe emotional distress, humiliation, stress, discomfort, annoyance, depression, fear of safety and/or or physical pain and injury, frustration and anxiety” are insufficient to establish severe emotional distress. (See Compl. ¶ 148; Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [“discomfort, worry, anxiety, upset stomach, concern, and agitation” do not satisfy the severity standard].) Therefore, the demurrer is SUSTAINED with leave to amend as to the sixth cause of action.

d. Fraudulent Concealment

“The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

Plaintiff alleges that before August 2023, Defendant knew of the bedbug infestation but concealed this information from Plaintiff in order to induce Plaintiff into signing the lease. (Compl. ¶¶ 169-173.) Defendant argues that the lease, which is incorporated into the complaint, provides that Plaintiff inspected the unit prior to moving in and was advised of prior bedbug infestations. (See Compl., Ex. A, §§ 6.1, 6.7.) Therefore, Defendant concludes, it could not have deceived Plaintiff, and Plaintiff could not have justifiably relied on its misrepresentation. However, on a demurrer, all reasonable inferences must be drawn in Plaintiff’s favor. Even if Plaintiff did not notice a bedbug infestation when he inspected the unit and was advised of prior infestations, it remains possible that a bedbug infestation existed at the time Plaintiff signed the lease. It may also be reasonably inferred that Defendant knew of a present infestation and intentionally concealed it from Plaintiff.

Defendant further argues that the fraud allegations lack specificity. However, the rule of specificity “is intended to apply to affirmative misrepresentations.” (Alfaro, supra, 171 Cal.App.4th at p. 1384.) “[I]t is harder to apply this rule to a case of simple nondisclosure. How does one show ‘how’ and ‘by what means’ something didn't happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Ibid.) Plaintiff cannot provide specificity on nonexistent statements. The complaint sufficiently alleges that Defendant concealed a bedbug infestation from Plaintiff, thereby inducing Plaintiff to sign the lease. (Compl. ¶¶ 169-173.) Therefore, the demurrer is OVERRULED as to the ninth cause of action.

II. Motion to Strike

            a. Punitive Damages

“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.” (Civ. Code, § 3294, subd. (a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., subd. (c)(2).) Fraud is “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., subd. (c)(3).)

As discussed above, the complaint adequately pleads fraudulent concealment. Fraud is an independent basis for punitive damages, regardless of malicious conduct. Additionally, the allegations discussed above—where Defendant allegedly knew of the bedbug infestation but ignored it for an extended period of time while continuing to extract rent—sufficiently establish conscious disregard for Plaintiff’s rights and safety, as well as conduct that subjected Plaintiff to unjust hardship. Again, Defendant’s personal opinion on the severity of bedbug infestations brings in factual issues and does nothing to negate the sufficiency of the allegations.   

Defendant also argues that the complaint fails to allege facts establishing that the acts were committed or ratified by a corporate managing agent. (See Civ. Code, § 3294(b).) However, the complaint alleges that “Defendants’ managing agents, specifically, ‘Beatriz DeMarco’, authorized and/or ratified all offensive acts outlined in this cause of action, as well as all of the other causes of action included throughout the Complaint.” (Compl. ¶ 172.) This is sufficient for pleading purposes. The evidentiary facts establishing a particular individual as a managing agent should be left for discovery.

Therefore, the motion to strike is DENIED as to punitive damages.

b. Attorney’s Fees

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . .” (Code Civ. Proc., § 1021.) Therefore, a plaintiff must allege either a statutory or contractual basis for attorneys’ fees.

Plaintiff alleges that he is entitled to attorney’s fees under Code of Civil Procedure section 1021.5, which allows an award of fees to the successful party “in any action which has resulted in the enforcement of an important right affecting the public interest.” However, this case arises from a private dispute between landlord and tenant and does not confer a significant benefit to the general public or a large class of persons. (See Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1026 [“section 1021.5 was not intended to impose fees on an individual seeking a judgment that determines only his or her private rights”].) Therefore, the motion to strike is GRANTED as to attorney’s fees.  

CONCLUSION

            Defendant’s demurrer is SUSTAINED in part as set forth above. The motion to strike is GRANTED in part as set forth above.