Judge: David B. Gelfound, Case: 23CHCV03249, Date: 2025-01-08 Tentative Ruling

Case Number: 23CHCV03249    Hearing Date: January 8, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 11/12/24

MOVING PARTY: Defendant Haddon 85 Asset, LLC

RESPONDING PARTY: Plaintiff Fredy Alvarado

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendant Haddon 85 Asset, LLC’s demurrer to Third, Fourth, Fifth, Sixth, and Eighth Causes of Action in Plaintiff Fredy Alvarado’s Complaint, and striking portions of the Complaint.

TENTATIVE RULING: The demurrer is SUSTAINED IN PART. The motion to strike is GRANTED IN PART.

BACKGROUND

This action arises from allegations that Defendant Haddon 85 Asset LLC, as the landlord, breached a residential rental agreement and committed other tortious acts against Plaintiff Fredy Alvarado, the tenant, concerning the property located at 10560 Hadden Avenue, Unit 512, Pacoima, CA 91331 (the “Subject Property”).

On October 25, 2023, Plaintiff Fredy Alvarado (“Plaintiff” or “Alvarado”) filed a Complaint against Defendant Haddon 85 Asset LLC (“Defendant” or “Haddon”), and Does 1 through 10, alleging the following causes of action: (1) Breach of Implied Warranty of Habitability, (2) Negligence, (3) Nuisance, (4) Breach of Quiet Enjoyment, (5) Intentional Infliction of Emotional Distress, (6) Unruh Civil Rights Act (Civ. Code, § 51), (7) Anti-Harassment Statute (Civ. Code, § 1940.2), and (8) Wrongful or Illegal Eviction. 

On September 13, 2024, Defendant filed the instant Demurrer (the “Demurrer”) and a Motion to Strike (the “Motion”). Subsequently, Plaintiff filed his Opposition to the Demurrer on December 20, 2024, and Defendant submitted a Reply on December 30, 2024.

ANALYSIS

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.) No other extrinsic evidence can be considered.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal.App.3d 902, 905.) “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.) 

A.    Meet and Confer Requirement

A party filing a demurrer “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.” (Code Civ. Proc., § 430.41, subd. (a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

            The Court finds that the parties have satisfied the requirement for an in-person or telephonic meet and confer, under Code of Civil Procedure section 430.41, subd. (a). (Mantovani Decl. ¶¶ 3-6.)

B.     Third Cause of Action - Nuisance

Defendant argues that the Third Cause of Action for Nuisance is subject to the Demurrer because the Complaint fails to sufficiently state the cause of action, and it is duplicative of the Negligence claim. (Dem. at p. 7.)

The elements for a Private Nuisance cause of action include: (1) interference with plaintiff's use and enjoyment of plaintiff’s property, (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct.  (1996) 13 Cal.4th 893, 938; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552 [nuisance includes omissions to perform duties, in addition to affirmative actions]; Civil Code §3479; see CACI 2021.)

Defendant contends that the Complaint’s Second Causes of Action for negligence and the Third Cause of Action for Nuisance both arise from the same purported breach of due care to maintain the premises in a habitable condition, rendering the Nuisance claim duplicative. (Dem. at p. 8.)

In opposition, Plaintiff asserts that the Nuisance claim is not precluded by the Negligence claim as California law allows the Plaintiff to plead the causes of action in the alternative. (Opp’n. at p. 6.)

The Court observes the general rule that pleading of alternative theories of relief on the same set of facts is quite proper and is often done where there is a legally recognized basis for recovery in both contract and tort. (Gebert v. Yank (1985) 172 Cal.App.3d 544, 554, underlines added.) California courts employ the “primary rights” theory to determine the scope of causes of action. Under this theory, there is only a single cause of action for the invasion of one primary right. “In determining the primary right ..., ‘the significant factor ... is the harm suffered.’”(Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, 904, disapproved on another point.)

 Nuisance is defined as “[a]nything which is injurious to health, ... indecent or offensive to the senses, or an obstruction to the free use of property....” (Civ. Code, § 3479.) Because of the broad definition of nuisance, whether a cause of action is viable depends on the facts of each case. (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.)

Here, although the Complaint purports to state two causes of action, that is, one based on negligence (second) and the other on nuisance (third), it effectively states one cause of action in two counts. The gist of each count is that Defendant “failed to properly maintain the property and failed to correct the [] defective conditions.” (Compl. ¶ 100.) These defective conditions are essentially identical under both causes of action, including mold/blackspots/mildew, holes everywhere, water leaks, mold in the hallway and closet, fungi, spiders, and bed bugs. (Id. ¶¶ 104, 108.) Consequently, both causes of action allege the same primary right, that is, Plaintiff’s right to the undisturbed enjoyment of his premises; the corresponding duty, that is, an obligation on the part of Defendant not to interfere that right; and the alleged breach of that duty by Defendant. (See Frost v. Witter, 132 Cal.421, 426; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 590; Work v. County Nat. Bank etc. Co., 4 Cal.2d 532, 540.)

            Furthermore, a cause of action alleging continuing nuisance is usually accompanied by a request for an injunction. However, the Complaint seeks only the same monetary relief that Plaintiff requested in the Negligence claim.

            Conversely, Plaintiff contends that the Complaint contains sufficient facts to state a claim for Nuisance independent of the Negligence cause of action, citing Acadia, California, Limited v. Herbert (1960) 54 Cal.2d 328, 357 (Acadia), which held that “[i]t is settled that, regardless of whether the occupant of land has sustained physical injury he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance” (Opp’n. at p. 6.)

Plaintiff’s reliance on Acadia is misplaced because Acadia is not directly applicable to the issue at hand. In Acadia, the court addressed an issue of permitting the jury to award damages to the plaintiff for his mental suffering proximately caused by the defendant’ disruption of the water supply. (Acadia, supra, 54 Cal.2d at p. 338.) The Acadia court reasoned that such disruption was “closely analogous to a trespass or a nuisance,” as “it interfered with the use and enjoyment of the land by [plaintiff] Burke and his wife, and such conduct warrants imposition of liability for mental distress of the occupants, at least where ... the tortious acts are wilful.” (Ibid.) However, Acadia did not address situations involving duplicative allegations for negligence and nuisance. Importantly, the case does not suggest that the validity of a claim should be evaluated in isolation without considering whether it arises from a shared primary right, as is the case here.

Accordingly, Plaintiff’s reliance on Acadia does not support the validity of the duplicative Nuisance claim.

Plaintiff also relies on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919-21 (Stoiber), arguing that nuisance liability is not precluded by the existence of a contractual relationship between the tenant and landlord. (Opp’n. at p. 6.) In Stoiber, the Court of Appeal reversed and issued a writ of mandate to set aside a trial court’s order striking the tenant plaintiff’s claims for nuisance, intentional infliction of emotional distress, and constructive eviction. (Id. at p. 904.) In the words of the Stoiber court, “[T]he tenant’s remedies against the landlord are not limited to breach of the warranty of habitability and he may also plead tort actions.” (Id. at p. 929.)

The Court distinguishes Stoiber from the present case. In Stoiber, the plaintiff’s primary right in contract was distinct from their primary right in tort. There, the coexisting claims for breach of the warranty of habitability and nuisance involved different rights and corresponding duties.

As the Court has previously analyzed, a closer inspection of the pleadings confirms a long-recognized fact: here, the words of nuisance and negligence overlap and the two become merely alternative legal theories for redressing what is really the invasion of a single primary right – the right to the undisturbed enjoyment of one’s property. Where Negligence and Nuisance causes of action rely on the same facts about lack of due care, the Nuisance claim is merely a clone of the Negligence claim. (Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372.)

Based on the foregoing, the Court finds Defendant’s argument persuasive and concludes that the Third Cause of Action for Nuisance is duplicative of the Second Cause of Action for Negligence. Consequently, the Complaint does not state a valid Nuisance claim.

Therefore, the Court SUSTAINS the Demurrer WITHOUT LEAVE TO AMEND as to the Third Cause of Action.

C.    Fourth Cause of Action – Breach of Quiet Enjoyment

“‘In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. [Citations.] The covenant of quiet enjoyment “insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]” [Citation.]’ (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.) “The implied covenant of quiet enjoyment implies a term in a contract, and a breach of the covenant gives rise to an action in contract.” (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896.) It protects the tenant from any act or omission of the landlord that interferes with a tenant’s right to use and enjoy the premises pursuant to the lease. (Ibid.)

The implied covenant of quiet enjoyment or possession may be breached in multiple ways. The claim has often been inextricably tied to breach of the covenant by eviction, which disturbs the tenant's right to undisturbed possession of the leased premises. If the landlord ousts the tenant, there is an actual eviction. (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 847 (Petroleum Collections).) If the landlord's acts or omissions affect the tenant's use of the property and compel the tenant to vacate, there is a constructive eviction. (Green v. Superior Court (1974) 10 Cal.3d 616, 625, fn. 10 (Green ); Groh v. Kover's Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614.) In either case, the tenant must vacate. (Lori, Ltd. v. Wolfe (1948) 85 Cal.App.2d 54, 65 [“In order that there be a constructive eviction it is essential that the tenant should vacate the property. There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment”].) Many courts have accordingly repeated the general premise that “the covenant of quiet enjoyment is not broken until there has been an actual or constructive eviction....” (Petroleum Collections, supra, at p. 847; see Standard Livestock, supra, 204 Cal. at p. 625; Clark v. Spiegel (1971) 22 Cal.App.3d 74, 79–80.)

However, in Guntert v. City of Stockton (1976) 55 Cal.App.3d 131 (Guntert), the court distinguished claims in which the landlord has actually or constructively ousted the tenant from those in which the landlord's interference with the tenant's enjoyment or use of the property does not lead to ouster. The Guntert court recognized that a tenant has alternative remedies to respond to the landlord's interference and, instead of vacating, may “stand upon the lease and sue for damages.” (Id. at p. 140, underlines added.) In Guntert, the plaintiff tenant had not quit the premises, despite the landlord's service of an invalid and bad faith eviction notice. The court thus concluded: “[The tenant] is not suing for a wrongful, constructive eviction but for the lessor's unjustified and unauthorized interference with his profitable use of the leased property. The rule requiring ouster or surrender prior to suit for wrongful eviction does not preclude the tenant from his election to stand upon the lease, remain in possession and sue for breach of contract damages.” (Id. at p. 141, underlines added.)

Defendant asserts that, since Plaintiff elected to remain in the Subject Property, he is limited to contract damages and may not pursue a breach of quiet enjoyment claim. (Dem. at p. 8.)

The Court disagrees with this conclusion, as it is internally inconsistent and contrary to well-established legal principles, including those outlined in Guntert, supra.

Significantly, in Cunningham v. Universal Underwriters (2002) 98 Cal.App.4th 1141, the court drew a distinction between a wrongful eviction claim, and one in which the tenant remains in possession of the premises and sues for damages arising out of the landlord's interference with the tenant's beneficial use of the leased premises. The Cunningham court explained, “While a claim for breach of the covenant of quiet enjoyment is similar to a constructive eviction claim, the critical difference is that the latter claim may not be brought until the tenant has vacated the property.” Thus, breach of the implied covenant of quiet enjoyment can be understood as a title encompassing claims for wrongful eviction, and also claims in which the tenant's use of the premises is disturbed, but the tenant remains in possession.” (Id. at p. 153.)

Here, the Fourth Cause of Action is labeled as Breach of Quiet Enjoyment, not wrongful eviction. Consequently, the distinction outlined in Cunningham confirms that damages – though grounded in contract rather than torts – are available even when Plaintiff remains in possession of the property.

Accordingly, in alignment with the case law, including Guntert, supra, the Court concludes that Plaintiff is not precluded from asserting a claim for Breach of Quiet Enjoyment and seeking breach of contract damages without vacating the Subject Property. The Court finds that Defendant’s argument to the contrary to be without merit.

Therefore, the Court OVERRULES the Demurrer as to the Fourth Cause of Action.

D.    Fifth Cause of Action - Intentional Infliction of Emotional Distress

The elements of a cause of action for Intentional Infliction of Emotional Distress (IIED) are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

Defendant contends that the Complaint’s allegations have not adequately pleaded that Defendant’s failure to make repairs constituted intentional or outrageous conduct. (Dem. at p. 9.) Additionally, Defendant asserts that Plaintiff has not identified any “severe emotional distress” sufficient to meet the heightened standard of emotional distress being “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it,” as articulated in Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. (Dem. at p. 11.)

The Court will now address these arguments in turn.

(1)   Extreme and Outrageous Conduct by Defendant

In order to avoid a demurrer, the plaintiff must allege with “greater specificity” the acts which he or she believes “are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal.App.3d 926, 936.)

The Complaint’s allegations include the following: “Defendants, their managers, supervisors and administrators including MARTINEZ intentionally, recklessly and/or negligently refused, failed and did not disclose and/or warn the Plaintiff of the presence of the dangerous and defective conditions, nor did Defendants safeguard Plaintiff from its effects.” (Compl. ¶ 130.) “The herein-above alleged conducts of the Defendants and each of them in allowing Plaintiff’s apartment to be infested with mold, roaches and other dangerous conditions since the commencement of Plaintiff’s tenancy, concealing and misrepresenting the existence of dangerous conditions in the unit knowing that Plaintiff would not be able to verify same; in allowing defective plumbing and water leaks or floodings, roach and bed bugs, holes all over the unit, which caused mildew or mold infestations; in allowing roaches, and bed bugs infestation to exist without repair for more than 360 days which caused Plaintiff’s household items and foods to rot; in refusing to cure the infestations, or to repair defective conditions after being notified by Plaintiff and public authorities, and threatening Plaintiff with eviction and damage to their credit, amounts to an extreme and outrageous conduct that any reasonable human being will strongly object to.” (Id. ¶ 134.) “[I]n knowingly renting defective rental unit to Plaintiff and telling Plaintiff to vacate the subject premises after Plaintiff complained about defective conditions and in maintaining the aforementioned defective conditions for the purpose of forcing Plaintiff to vacate the apartment/ unit because Plaintiff complained about it and the poor living conditions in a bid to unjustly retaliate against Plaintiff, amounts to an extreme and outrageous conduct that any reasonable human being will strongly object to.” (Id. ¶ 135.) “Defendants threatened to refuse to accept rents from the Plaintiff so that Plaintiff can be in default and Defendants would commence a procedure for evicting the Plaintiff from the Subject Property. Defendants have promised to damage the Plaintiff’s credit profile and history with eviction and make it difficult for the Plaintiff to rent units in the future and intended to render the Plaintiff homeless.” (Id. ¶ 138.) “Anytime Plaintiff call for repairs, Defendants would yell and scream at Plaintiff. Thereafter Defendants completely ignored Plaintiff’s request for repairs and has asked Plaintiff in the following or similar words to “move out of the unit” “you are bothering me” because of Plaintiff’s continuous complaints.” (Id. ¶ 141, emphasis in original.) “Plaintiff were harassed and discriminated against because of the Plaintiff’ race, color as Hispanic Americans.” (Id. ¶ 143, 145.)

In Aweeka v. Bonds (1971) 20 Cal.App.3d 278 (Aweeka), the landlord failed to keep the premises in good repair and the tenant exercised his “repair and deduct” remedy under Civil Code sections 1941 and 1942. The landlord thereafter increased the rent from $75 per month to $145 per month; this increase was clearly not justified by the rental value of the premises, and the landlord was aware that the tenant could not pay the increased rent. Based on these facts, the court held that the complaint sufficiently alleged a cause of action for intentional infliction of mental distress (Id., at p. 281.)

            First, it is clear that the availability of a remedy for a landlord’s failure to repair defects and breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress, provided the landlord's acts are extreme and outrageous and result in severe mental distress.

Second, similar to the landlord’s conducts in Aweeka, supra, in the present case, Plaintiff alleges that Defendant failed to maintain the Subject Property in a habitable condition by allowing dangerous and defective conditions to persist, including defective plumbing, water leaks, mold infestations, and pest infestations such as roaches and bed bugs. Additionally, Plaintiff alleges that Defendant imposed invalid rent increase and threatened eviction and harm to Plaintiff’s credit, potentially jeopardizing their ability to rent in the future.

While the specific actions alleged in Aweeka and this case differ in form, both involve a pattern of conduct designed to exert pressure on the tenant. In Aweeka, the rent increase was employed as a retaliatory measure to force the tenant out, while here, Plaintiff alleges that Defendant’s actions were intended to interfere with Plaintiff’s quiet enjoyment of the premises and coerce compliance under untenable conditions.

Therefore, as in Aweeka, the allegations here, when taken as true at this stage of the proceedings, sufficiently allege extreme and outrageous conduct that can support a claim for intentional infliction of emotional distress.

(2)   Plaintiff’s Severe Emotional Distress

Generally, no recovery can be had for this tort, unless there has been severe emotional distress. “Severe emotional distress means . . . 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 National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397 (Fletcher).)

It “may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” (Id. at p. 397.) “The recent trend has been to require less severe distress in pleadings and proof than is required in the Restatement. Therefore, in Golden v. Dungan, pleadings were held sufficient to state a cause of action where the ‘plaintiff became frightened, upset, nervous and humiliated, and suffered extreme and severe mental suffering and duress, . . .’” (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 298, disapproved of on other grounds, internal citations omitted.) In Fletcher, supra, the court upheld a jury verdict, in part, based on testimony that plaintiff was frightened and upset by defendant's false charges, and was worried and anxious about losing his home. (Id. at p. 398.)

Here, the Complaint alleges that “[a]s a direct and proximate result of Defendants’ aforementioned conduct, Plaintiff has suffered harm, including but not limited to severe shock, breathing issues, pains all over, anxiety, insomnia, humiliation, anguish, embarrassment, severe mental and emotional distress resulting in physical symptoms; mortification and indignity, all in an amount in excess of the jurisdictional threshold of this Court, to be shown by evidence at the time of trial.” (Compl. ¶ 151.)

            This allegation is similar to the one in Golden v. Dungan, where the court found sufficient to state a cause of action for IIED based on claims that “[plaintiff] became frightened, upset, nervous and humiliated, and suffered extreme and severe mental suffering and duress,” the Complaint asserts similar symptoms such as “severe shock, breathing issues, pains all over, anxiety, insomnia, humiliation, anguish, embarrassment, severe mental and emotional distress resulting in physical symptoms; mortification and indignity[.]”

            Accordingly, the Court finds the Complaint has sufficiently stated the Fifth Cause of Action for Intentional Infliction of Emotional Distress.

            As a result, the Court OVERRULES the Demurrer as to the Fifth Cause of Action.

E.     Sixth Cause of Action – Unruh Civil Rights Act, Civil Code Section 51

Section 51 of the Civil Code, known and cited as the Unruh Civil Rights Act (“Unruh Act”), provides in relevant part, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b).)

Defendant contends that Plaintiff’s Unrush Act cause of action is conclusory and vague, arguing that it offers no facts regarding what actions by Defendant constituted a violation of the Unruh Act, and that the Complaint does not plead any facts to support that Plaintiff’s race or color was a substantial motivating reason for Defendant’s alleged conduct. (Dem, at p. 12.)

Here the Sixth Cause of Action in Plaintiff’s Complaint is labeled Unruh Civil Rights Act. It alleges that, “Defendants denied Plaintiff equal accommodations, advantages, facilities, privileges, or services by threatening plaintiff with baseless eviction including filing an unlawful detainer action that were not served in good faith and based on this lawsuit and/or in anticipation of litigation that was seriously contemplated at the time, making discriminatory statements and threats of eviction, failing to maintain the plaintiff’s unit in habitable condition, imposing unduly oppressive changes in the terms of plaintiff’s tenancy, and enforcing policies in a discriminatory fashion including demanding the Plaintiff to move all minors out of the property[.]” (Compl. ¶ 154.) “[T]he Hispanic American background, primary language, and familial status of Plaintiff were and are a substantial motivating reasons for Defendants’ conduct[.]” (Ibid.) “Plaintiff has suffered harm and continues to suffer harm; and Defendants’ conduct was a substantial factor in causing the harm suffered by Plaintiff.” (Ibid.) 

            In Jackson v. Superior Court (1994) 30 Cal.App.4th 936 (Jackson), the Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order sustaining the demurrer to the cause of action under the Unruh Civil Rights Act, and to issue a new order overruling the demurrer. The Jackson court held that the plaintiff has stated a cause of action under the Unruh Civil Rights Act by alleging that he was discriminated against when a bank, which ordinarily allowed person to accompany its customers and help them pursue their banking business, refused to allow an African American this courtesy because of his race. (Id. at p. 942.)

Notably, the Jackson court addressed an argument that the Unruh Act claim had not been properly pled because there were no allegations of discrimination occurring pursuant to a policy or practice, and the allegation of the manager acting against Jackson because of his race was not an allegation of ultimate fact but merely an improper legal conclusion. (Id. at pp. 941-942.) The court explained: “‘The test for allegations of fact or conclusions of law is not absolute; the question is whether the pleading as a whole apprises the adversary of the factual basis of the claim. [Citation.] And particularity of facts depends on the extent to which the defendant needs detailed information. [Citation.]’ (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 332, p. 383.) The plain language of [Civil Code] section 51 does not prohibit only those acts of discrimination which are routinely committed or are a matter of policy. Obviously, a plaintiff will have an easier burden of persuasion if he can provide evidence that the defendant routinely discriminates against the class to which he belongs. Such an allegation is not necessary, however, to plead a violation of section 51. Whether real parties did discriminate in this case is a factual question and it cannot be determined as a question of law from the facts pleaded.” (Jackson, supra, 30 Cal.App.4th at p. 942.)

The Court recognized that factual distinctions exist between this case and Jackson. Nevertheless, the key allegation of racial prejudice/motivation, supported by allegations of arguably unreasonable denial of Plaintiff’s accommodations, advantage, facilities, privileges, or services, are common to both cases, and it was the presence of such allegations that led Jackson to conclude that an Unruh Act claim had been properly alleged.

Therefore, the Court concludes that the Complaint sets forth the essential facts of Unruh Act racial discrimination claim with reasonable precision and with particularity sufficient to acquaint Defendant with “the nature, source and extend of [Plaintiff’s] cause of action.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)

Accordingly, the Court OVERRULES the Demurrer as to the Sixth Cause of Action. 

F.     Eighth Cause of Action – Wrongful or Illegal Eviction

Tort actions to recover damages for willful wrongful evictions have long been recognized in California. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 774.) As previously discussed, if the landlord ousts the tenant, there is an actual eviction. (Petroleum Collections, supra.) If the landlord's acts or omissions affect the tenant's use of the property and compel the tenant to vacate, there is a constructive eviction. (Green, supra, 10 Cal.3d at p. 625 fn. 10.) In either case, the tenant must vacate. (Lori, Ltd. v. Wolfe (1948) 85 Cal.App.2d 54, 65 [“In order that there be a constructive eviction it is essential that the tenant should vacate the property. There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment.”])

            Here, Plaintiff argues that there is no requirement that Plaintiff must be evicted from the unit, citing Spinks v. Equity Residential Briarwood Apartment (2009) 171 Cal. App.4th 1004 (Spinks). However, Plaintiff’s reliance on Spinks is misplaced and reflects a misunderstanding of the case.

            In Spinks, the court explicitly distinguished between a claim for breach of the implied covenant of quiet enjoyment, which it identified as a contract claim, and a claim for wrongful eviction, which it identified as a tort. (Spinks, supra, 171 Cal.App.4th at pp. 1030–1031.) The Spinks court further stated: “In contrast to plaintiff's contract-based claim [for breach of the implied covenant of good faith and fair dealing], punitive damages may be available for the torts of wrongful eviction, trespass, invasion of privacy, and intentional infliction of emotional distress.” (Id. at p. 1055.) In this context, when the court stated in the next paragraph, “As long-standing authority makes clear, punitive damages may be awarded in an action by a residential tenant based on the landlord's interference with peaceful possession,” the Court of Appeal in Ginsberg, supra, understands the court to mean interference with peaceful possession in the form of wrongful eviction. (Ibid.)

            Therefore, Spinks is consistent with established law in holding that eviction is not required to pursue a breach of contract claim, including the covenant of quiet enjoyment. However, for a tort claim of wrongful eviction, the tenant must vacate the property.

            Accordingly, the Court finds Defendant’s argument persuasive. Based on the allegation that Plaintiff concedes no eviction had occurred, the Court concludes that this defect may not be cured with reasonable possibility through an amendment.

            Based on the foregoing, the Court SUSTAINS the Demurrer WITHOUT LEAVE TO AMEND as to the Eighth Cause of Action.

            In conclusion, the Court SUSTAINS the Demurrer WITHOUT LEAVE TO AMEND as to the Third and Eighth Causes of Action. The Court OVERRULES the Demurrer as to the Fourth, Fifth, and Sixth Causes of Action.

G.    Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

In its Motion to Strike, Defendant seeks to strike the following portions from the Complaint:

1.      Paragraph 6 in part: "Plaintiff seeks…punitive damages… for Defendants' unlawful behavior."

2.      Paragraph 30 in part: "Defendants and their agents…fraudulently and with an intent to continue to deceive the Plaintiff…."

3.      Paragraph 50 in part: "The Defendants' conduct was an is despicable and was done with a willful and knowing disregard of the rights or safety of the Plaintiff."

4.      Paragraph 124 in fourth cause of action: "Defendants' conduct in breaching the covenant of quiet enjoyment of Plaintiff of their rented unit have been intentional, reckless, malicious, and oppressive, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial."

5.      Paragraph 152 in fifth cause of action: "The aforementioned conducts [sic] of the Defendants were done intentionally, willfully and with malice, fraud, recklessness and oppression in violation of the laws and Constitution of the State of California, intending to cause (and causing) severe emotional distress resulting in physical symptoms, depression, humiliation, anxiety, low self-esteem, breathing issues, oppression and mental injury to the Plaintiff and thereby entitling Plaintiff to an award of punitive damages such an amount as the trier of fact in this action may deem appropriate."

6.      Paragraph 161 in the seventh cause of action: "The aforementioned conducts [sic] of the Defendants were done intentionally, willfully and with malice, fraud, recklessness thereby entitling Plaintiff to an award of punitive damages in such an amount as the trier of fact in this action may deem appropriate."

7.      Paragraph 170 in the eighth cause of action: "Further, Defendants' conducts herein are despicable and carried on with a wilful and conscious disregard of the rights of the Plaintiff. Therefore, the Defendants acted with malice entitling the Plaintiff to recover punitive damages against the Defendants in an amount to be proven at trial."

8.      Paragraph 6 of the Prayer: "For Punitive Damages."

(1)   Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

i.                    Paragraphs 124 and 170

Paragraph 124 is included under the Fourth Cause of Action for Breach of Quiet Enjoyment. As previously noted, such a claim, when not connected to wrongful eviction claims, sounds in contract rather than tort. As explained in Guntert, supra, when the landlord has breached the implied covenant of quiet enjoyment, but the tenant remains in possession of the premises, the tenant's remedy is to “sue for breach of contract damages.” (Guntert, supra, 55 Cal.App.3d at p. 141.) It is a long-established principle that punitive damages are not recoverable in breach of contract actions. (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960.)

Since the Fourth Cause of Action is contract-based, Plaintiff lacks a legal basis to recover punitive damages.

As to paragraph 170 under the Eighth Cause of Action, the Court has sustained the Demurrer to the underlying cause of action without leave to amend. Consequently, the Motion to strike is deemed moot as to paragraph 170.

Accordingly, the Court GRANTS the Motion WITHOUT LEAVE TO AMEND as to the paragraphs 124 and 170.

ii.                  Paragraphs 6, 30, 50, 152, 161, and Paragraph 6 of the Prayer

Defendant asserts that the Complaint provides conclusions rather than factual specificity, failing to substantiate the request for punitive damages. Moreover, Defendant argues that Plaintiff’s punitive damages claim is insufficient against the corporate defendant without naming an officer, director, or managing agent of Defendant. The Court disagrees.

When considering the totality of facts as pleaded in the Complaint, Plaintiff alleges that Defendant willfully failed to repair the premises, rendering the Subject Property unfit for human occupation. These defective conditions include mold/blackspots/mildew, holes everywhere, water leaks, mold in the hallway and closet, fungi, spiders, and bed bugs. (Compl. ¶ 102.)

As to Defendant’s conscious disregard Plaintiff’s rights of habitability, the Complaint asserts: “When the Defendants, their managers, supervisors and administrators including Martinez made these representations, statements and assurances, Defendants knew them to be false, and these representations, statements and assurances were made by Defendants their managers, supervisors and administrators including Regula and others with the intent to defraud and deceive Plaintiff, to obtain rental payments from the Plaintiff, to deny Plaintiff the benefit of the unit and with the intent to induce Plaintiff to act in the manner herein alleged and to the Plaintiff’s overall detriment. At the time Defendants, their managers, supervisors and administrators including Regula and others made the promises, representations, assurances and representations to Plaintiff, Defendants had no intention of performing or keeping them.” (Compl. ¶ 133.) Further, Plaintiff alleges: “Anytime Plaintiff call for repairs, Defendants would yell and scream at Plaintiff. Thereafter Defendants completely ignored Plaintiff’s request for repairs and has asked Plaintiff in the following or similar words to “move out of the unit” “you are bothering me” because of Plaintiff’s continuous complaints.” (Id. ¶ 141.)

Additionally, Civil Code section 1942.5 provides for punitive damages where a landlord retaliates against a tenant for complaints regarding the tenantability of a dwelling, provided the landlord “has been guilty of fraud, oppression, or malice… .” (Civ. Code § 1942.5, subd. (h)(2).) Here, the Complaint asserts that “Defendants impose invalid rent increases by raising rents in excess of the amount permitted by LARSO” (Compl. ¶ 9), “harassing and intimidating the Plaintiff and/or has indicated that it will pursue meritless and/or retaliatory unlawful detainer actions[.]” (Compl. ¶ 10.) These allegations of retaliation are contrary to law and public policy, supporting a claim for punitive damages in their own right. (See Civ. Code § 1942.5.) 

Furthermore, “[a]n award of punitive damages against a corporation ... must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) “‘[M]anaging agent’ . . . include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.)

Here, Plaintiff alleges that “...Defendants, CHARLES GRITO [hereinafter Defendant or Defendants] is the administrator, owner, joint owner, agent, trustee and manager of the subject property and a resident of and/or carrying business in the State of California. At all times herein, Defendant has the authority, consent and powers to bind all other Defendants herein by his/her/its/their actions.” (Compl. ¶ 15.) “Martinez and others whose names Plaintiff cannot recall at this time, are employees, agents, managers and supervisors hired, employed and controlled by the named defendants and these employees are charged with the responsibility for managing the subject property for the benefit of the Defendants and all tenants including the Plaintiff.” (Id. ¶ 19.)

The Court finds that these allegations are sufficient at this stage of proceedings, and Plaintiff has indicated an intent to amend the Complaint to allege the true identities of the relevant individuals when ascertained. (Compl. ¶ 17.)

Based on the above, the Court DENIES the Motion to Strike as to paragraphs 6, 30, 50, 152, and 161 of the Complaint and paragraph 6 of the Prayer.

CONCLUSION

Defendant Haddon 85 Asset, LLC’s Demurrer to the Complaint is SUSTAINED IN PART. The Court SUSTAINS the Demurrer WITHOUT LEAVE TO AMEND as to the Third and Eighth Causes of Action. The Court OVERRULES the Demurrer as to the Fourth, Fifth, and Sixth Causes of Action.

Defendant Haddon 85 Asset, LLC’s Motion to Strike is GRANTED IN PART. The Court orders that paragraphs 124 and 170 of the Complaint are stricken in their entirety. The Court DENIES the Motion to Strike as to paragraphs 6, 30, 50, 152, and 161 of the Complaint and paragraph 6 of the Prayer.

Defendant Haddon 85 Asset, LLC is ordered to serve and file its Answer to the Complaint within 20 days.

Moving party to give notice.