Judge: David Sotelo, Case: 22STCV07661, Date: 2022-08-22 Tentative Ruling
Case Number: 22STCV07661 Hearing Date: August 22, 2022 Dept: 40
MOVING PARTY: Defendants Linda McLean
(erroneously sued as Linda McClean); and Patrick McLean.
Defendants Linda
McLean (erroneously sued as Linda McClean) and Patrick McLean (“McLean
Defendants”) bring separate Demurrers against the Intentional Misrepresentation
claim brought by Plaintiff Rochelle Linnetz (cause of action Five) based on a
single definite misrepresentation by Patrick McLean as to when a handyman would
repair the alleged uninhabitable conditions in Linnetz’s rental unit.
Defendants also
bring separate Motions to Strike all punitive damages and related allegations in
the Complaint for lack of adequate pleadings supporting such an award, making these
allegations improper.
The Court (1)
SUSTAINS, With Leave to Amend, the separate McLean Defendants’ Demurrers to the
Complaint’s Intentional Misrepresentation claim because it uncertainly and
insufficiently alleges the statute of limitations has not run on this cause of
action and (2) GRANTS the separate McLean Defendants’ Motions to Strike because
the Complaint’s punitive damages allegations are not supported by
sufficiently-pleaded factual grounds, making them improper.
On or around February 26, 2009, Plaintiff Rochelle Linnetz entered into a written
lease agreement with Defendant Linda McLean
and Patrick McLean (the “McLean Defendants”) for the property located at
1118 South Orange Avenue, Los Angeles, CA 90019 (hereinafter “Premises” or “Property”).
Prior to the inception of the tenancy, the McLean Defendants
orally assured Linnetz that the walls in the Property would be freshly repainted,
except for the silver paint on the dining room ceiling. When Linnetz moved in, the walls had not been
repainted.
On several occasions during the time that Plaintiff lodged complaints
about the habitability of the Premises, which included the presence or issues related
to mold, water intrusion, electrical problems, rodent infestation, and inadequate
weatherproofing, among other issues, the McLean Defendants represented that repairs
would be made.
More specifically—and in support of the herein fraud claims—Linnetz
alleges that: On or around June 11, 2017, she contacted Patrick via text message to confirm that a handyman would
be visiting the Property that week to make necessary and agreed upon repairs; the
handyman never came; on or around June 15, 2017, Linnetz again asked Patrick via text message when the handyman was
scheduled to come to the Property in order to make repairs; Patrick replied via
text message, “After Wednesday of next week”; despite Defendant Patrick’s assurances,
the handyman never came; Patrick intentionally led Plaintiff into believing that
someone was hired to come to the Property, despite the fact that he never hired
anyone to address the complained-of defects; and the McLean Defendants generally
had no reason to believe that the Premises were at any time habitable because they
failed to perform required tests and take the remedial measures needed to the Premise
habitable .
On or around February 25, 2019, Linnetz further notified the
McLean Defendants via text message and with video corroboration that she saw several
rodents running across the kitchen floor and warned them of a potential rodent infestation
on the Property. Around this time, Linnetz
also notified the McLean Defendants because of the water intrusion from windows,
there was dampness throughout the entire Property. However, this complaint went
unredressed.
Then, on or around November 10, 2020, and after having lived
with alleged medical issues that could not be diagnosed, Linnetz independently hired a private inspector
to conduct an inspection of the Property to ascertain whether the condition of the
Property could have been adversely affecting Linnetz’s health. The inspector is alleged to have found numerous defects
and health hazards present at the Property such as rodent droppings scattered throughout,
moisture stains on the basement ceiling, asbestos remains in the basement crawl
space, broken latches and missing screws on the windows preventing them from securely
closing, water damage on the areas immediately below the windows, water stains and
visible black mold growth beneath the kitchen sink, old and leaking pipes that are
in “unacceptable condition,” and electrical wiring in such “unacceptable condition”
operating at levels that exceed the maximum allowed by the Environment Protection
Agency. Linnetz informed McLean Defendants of the same via text message and email.
It does not appear that the McLean Defendants responded to Linnetz’s concerns.
Linnetz remitted full rent from the inception of her lease up
until December 15, 2021. Linnetz appears to have then left the premises between
December 15, 2021 and December 31, 2021. On January 10, 2022, the McLean Defendants
provided Linnetz with an itemization of costs surrounding her vacatur of the Premises,
which, Linnetz alleges, wrongfully and in bad faith withheld a portion of Linnetz’s
$3,100.00 security deposit.
On March 2, 2022, and based upon the facts discussed ante, Linnetz
brought this action against the McLean Defendants. The action was assigned to Department
32 of the Los Angeles Superior Court and alleged eight causes of action: (1) Breach
of Contract; (2) Breach of Implied Warranty of Habitability / Tenantability (Code
of Civil Procedure section 1941.1 and Health & Safety Code sections 17920.3
et seq.); (3) Breach of Implied Warranty of Quiet Enjoyment (Code of Civil Procedure
section 1927); (4) Negligence; (5) Intentional Misrepresentation; (6) Nuisance;
(7) Breach of the Covenant of Good Faith and Fair Dealing; (8) Breach of Statute
(Code of Civil Procedure section 1950.5). The Intentional Misrepresentation claim
was most firmly based on the representations made by Richard McLean in or around
June 2017 regarding whether a handyman would go to the Premises to make the repairs
that Linnetz requested from the McLean Defendants
to bring the Premises up to habitability.
On April 6, 2022, the
McLean Defendants separately filed Demurrers against the Complaint’s Intentional
Misrepresentation claim. On the same day, the McLean Defendants also filed
separate Motions to Strike punitive damages and associated allegations from the
Complaint for lack of adequate factual grounds to support such an award. A hearing
on these four moving papers was calendared for May 10, 2022.
On April 26, 2022, Linnetz
filed an Opposition to the Demurrers and Motions to Strike.
On May 2, 2022, Department
32 determined that this action did not to relate to “personal injury” and sent the
case to Department 1 for Reassignment to an Independent Calendar Court.
On May 3, 2022, Department
1 of the Los Angeles Superior Court reassigned at the direction of the Supervising
Judge to Department 40 at the Stanley Mosk Courthouse for all further proceedings.
Later that same day, the McLean Defendants filed their Reply
to the Linnetz Oppositions.
On May 10, 2022, Department 32 took the Demurrers and Motions
Off Calendar pursuant to the May 3, 2022 Reassignment Order by Department 1.
On June 17, 2022, Department 40 heard a Case Management Conference
in this action, at which time the Demurrers and Motions to Strike were rescheduled
for August 22, 2022.
Fifth Cause of Action, Intentional Misrepresentation:
SUSTAINED, With Leave.
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; see Code Civ. Proc., § 430.10, subd. (e).) “To survive a [general] demurrer,
the complaint need only allege facts sufficient to state a cause of action; each
evidentiary fact that might eventually form part of the plaintiff’s proof need not
be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 872.) In testing the sufficiency of the cause of action, the demurrer admits
the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital
Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions,
deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967)
67 Cal.2d 695, 713.)
A demurrer for uncertainty lies where a pleading is
uncertain, ambiguous, or unintelligible.
(Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury
v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where complaint
is sufficient to state a cause of action and to apprise defendant of issues he
is to meet, it is not properly subject to a special demurrer for uncertainty.
(See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d
636, 643 [“A special demurrer [for uncertainty] should be overruled where the
allegations of the complaint are sufficiently clear to apprise the defendant of
the issues which he is to meet”].
Analysis: In relevant part, Defendant Linda McLean
demurs to the Complaint’s Intentional Misrepresentation cause of action on the
grounds the claim is insufficiently and uncertainly plead because fraud claims
have a three-year statute of limitations and the allegations in the Complaint claim
the statute of limitations began running on this fraud claim in June 2017.
(Linda McLean Demurrer, 7:20-10:3 [arguing sufficiency demur based on statute
of limitations and adopting same grounds for uncertainty demur].)
The statute of limitations for any fraud claim is three years.
(Code Civ. Proc., § 338, subd. (d).) Unless a complaint affirmatively discloses
on its face that the statute of limitations has run, the general demurrer on
these grounds must be overruled. (See Lockley v. Law Office of Cantrell, Green,
Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must appear clearly
and affirmatively that, upon the face of the complaint, the right of action is necessarily
barred”].) Instead, “[t]he proper remedy ‘is to ascertain the factual basis of the
contention through discovery and, if necessary, file a motion for summary judgment
….’¿ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th
316, 325.) Generally, a “statute of limitations begins to run when the plaintiff
suspects or should suspect that her injury was caused by wrongdoing, that someone
has done something wrong to her’” (the “discovery rule”). (Bernson v. Browning–Ferris
Industries (1994) 7 Cal.4th 926, 932.) “[A] cause of action accrues at ‘the
time when the cause of action is complete with all of its elements.’” (Fox
v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806-07.) However, if
the complaint alleges wrongful conduct commencing at a time now barred by the
statute of limitations, but continuing until a date not barred, the last over
act supporting the tort controls the trigger date for the statute of
limitations. (See Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 786
[holding that the statute of limitations on continuing tort cause of action
does not begin to run until commission of last overt act].)
Here, the Complaint affirmatively discloses that the date of
the one clear misrepresentation by Patrick McLean took place on or around June
15, 2017. (Complaint, ¶ 60.) The Complaint also pleads that, the McLean
“Defendants, on several occasions, despite having no knowledge of the
representations their making, assured [Linnetz] that the Premises were safe and
habitable—all the while allowing the several defects existing on the Property
to worsen and attempting to conceal the same from [Linnetz].” (Complaint, ¶
63.) The Complaint’s Negligence claim (Complaint, ¶¶ 47-58), incorporated into
the Intentional Misrepresentation through pleading (Complaint, ¶ 59), further
alleges that the McLean Defendants made “misrepresentations regarding when
repairs would be made, the quality of repairs to be made, the condition of the
Premises being free of mold and water intrusion and being safe to occupy, among
others.” (Complaint, ¶ 50(c).)
These pleadings intimate a continuing violation of
misrepresentations by the McLean Defendants as to the habitability and whether the
Defendants would correspondingly repair the Premises. However, the Court cannot
from these pleadings ascertain when the last overt act regarding the alleged
misrepresentations by the McLean Defendants took place. It could be that the
statute of limitations has or has not in fact run on the Fourth Cause of Action.
This question depends on the date of the last overt misrepresentation from the
McLean Defendants to Linnetz as to the habitability of the Premises, as either
pleaded in or incorporated into the Fourth Cause of Action. However, as they stand,
the original Complaint’s allegations do not apprise the Court of the last over
date of misrepresentation as to habitability issues made by either McLean
Defendant.
Linnetz’s Opposition fails to address statute of limitations
topics altogether and asks for leave to amend should the Court find that the
Intentional Misrepresentation claim is defectively pled as to Defendant Linda
McLean. (Opp’n to Linda McLean Demurrer, 2:26-3:26 [arguing claim is
sufficiently pled based on meeting all the basic elements of Fraud without
addressing statute of limitations], 4:1-9 [asking for leave to amend if claims
are successfully challenged on demur].)
Under these circumstances, the Court finds that the
Intentional Misrepresentation claim is uncertain and not sufficiently pleaded
as to the statute of limitations for this cause of action.
The Court also briefly notes that the Intentional
Misrepresentation claim, for the most part, lacks the required specificity of
fraud claims, prospectively rendering it subject to general demurrer on these
additional grounds. (See Complaint, ¶¶ 50(c), 59, 60, 63; see also (Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216 [“Every element of the cause of action for fraud must be alleged …
factually and specifically[,] and the policy of liberal construction of the
pleadings … will not ordinarily be invoked to sustain a pleading defective in
any material respect. [Citations.]”]; Lazar v.
Superior Court (1996) 12 Cal.4th 631, 645 [A plaintiff pleading fraud must
plead facts showing “how, when, where, to whom, and by what means” the
allegedly fraudulent representations were tendered].)
To the extent that the sixtieth
(60th) paragraph of the Complaint pleads a misrepresentation with sufficient
factual detail against both McLean Defendants (Complaint, ¶¶ 5 [agency
allegations], 59 [incorporation], 60 [misrepresentation by Patrick McLean as to
handyman fixing uninhabitable conditions without any handyman ever arriving at
the Premises]), the Court notes that the statute of limitations to fraudulent
misrepresentation is not sufficiently or certainly pled enough to survive demur,
foreclosing the Court’s need to address sufficiency of pleading as to the
elements of fraud.
Legal Standard: 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 thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court,
rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion
and upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any pleading
not drawn or filed in conformity with the laws of California, a court rule, or an
order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz¿(1954)
42 Cal.2d 767, 782.)
Analysis: In relevant part, Linda McLean argues that
the Court should strike punitive damages allegations from the Complaint because
the Complaint does not plead conduct amounting to actual malice sufficient to
support punitive damages, particularly where only paragraph sixty (60) of the
Complaint pleads sparse and insufficient factual grounds supporting punitive
damages, making these allegations improper on motion to strike. (Linda McLean
Strike Mot., 8:1-10:3.)
On Opposition, Linnetz argues that she sufficiently alleged
false representations by the McLean Defendants at paragraphs 10 to 14, 59 to
69, and 74 to 76 of the Complaint and that these are proper grounds to
establish malice for punitive damages against the McLean Defendants. (Opp’n to
Linda McLean Strike Mot., 4:10-5:11.)
The Court agrees with the McLean Defendants and STRIKES
punitive damages according to the Linda’s Motion to Strike. (Linda McLean
Strike Mot., 2:2-14.) Most of the Complaint’s allegations as to punitive
damages are completely unclear and as the how, when,
where, to whom, and by what means misrepresentation supporting punitive damages
were made. (See, e.g., Complaint, ¶¶ 50(c), 59, 63.) The one
misrepresentation claim pled with greater sufficiency was subject to demur on
statute of limitations grounds. (See discussion supra.) The Complaint’s allegations
of mold, rodent infestations, and other uninhabitable conditions on the
Premises (Complaint, ¶¶ 12, 14) are supported and heightened by the allegations
of non-repair by the McLean Defendants (Complaint, ¶¶ 10-11, 16-17, 60). With
such defectively pled support, however, the Court cannot but find that the
punitive damages allegations should also fail as pleaded in the original
Complaint.
Fifth Cause of Action, Intentional Misrepresentation:
SUSTAINED, With Leave.
Analysis: Patrick McLean demurs to the Fifth cause of
action on the same grounds as Linda McLean. (Compare Patrick McLean Demurrer,
7:25-10:7, with Linda McLean Demurrer, 7:20-10:3.) The Court therefore adopts
its reasoning on the Linda McLean Demurrer discussion to SUSTAIN Patrick McLean’s
Demurrer to the Intentional Misrepresentation claim, With Leave.
Analysis: Patrick McLean moves to strike punitive
damages allegations from the Complaint on the same grounds as the Linda McLean Motion
to Strike. (Compare Patrick McLean Strike Mot., 7:24-9:24, with Linda McLean
Strike Mot., 8:1-10:3.) The Court therefore adopts its reasoning on the Linda
McLean Motion to Strike discussion to GRANT Patrick’s Motion to Strike the
punitive damages allegations from the Complaint, with Leave. (See Patrick
McLean Strike Mot., 2:2-14.)
The McLean’s identical Demurrers to Plaintiff’s Complaint are
SUSTAINED, With Leave, as to the Complaint’s Intentional Misrepresentation
claim because the Complaint uncertainly and insufficiently pleads the statute
of limitations for this cause of action.
The McLean’s identical Motions to Strike Portions of Plaintiff’s
Complaint are GRANTED because the Complaint does not sufficiently plead
adequate malice grounds to support the punitive damages allegations in the
Complaint, making them improper and subject to motion to strike.
Linnetz is Granted TEN (10) DAYS’ LEAVE TO AMEND.