Judge Deirdre Hill, Case 22TRCV00874 2023-02-02 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

The demurrer is OVERRULED as to the 1^st, 2^nd, 3^rd, 5^th, and 9^th causes of action and

The motion to strike is GRANTED WITH 20 DAYS LEAVE TO AMEND as to the allegations and prayer for punitive damages and DENIED as to the prayer for attorney’s fees.

On September 30, 2022, plaintiff Darren Victorian filed a complaint against Steven D. Kennedy and Susan Elizabeth Kennedy, trustees of The Steven D. Kennedy and Susan Elizabeth Kennedy Trust dated August 10, 1999 and Nationwide Property Management, Inc. for (1) statutory breach of warranty of habitability, (2) tortious breach of implied warranty of habitability, (3) negligence, (4) breach of contract, (5) nuisance, (6) breach of covenant of quiet enjoyment, (7) breach of the implied covenant of good faith and fair dealing, (8) IIED, and (9) violation of Civil Code §1942.4.

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. “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 Court (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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

“The court may, upon a motion . . . , or at any time in its discretion, and upon terms it deems proper: (a) Strike any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” CCP §436(b).

CCP §431.10 states: “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An ‘immaterial allegation’ means ‘irrelevant matter’ as that term is used in Section 436.”

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Defendants demur to the 1^st, 2^nd, 3^rd, 5^th, 8^th, and 9^th causes of action in the complaint on the ground that the allegations fail to state a cause of action and are uncertain, ambiguous, and unintelligible.

The complaint alleges that plaintiff is a tenant who resides at 14831 South Normandie Avenue, #20, Gardena, pursuant to a lease agreement. Complaint, ¶1. Defendants are the current owners or managers of the building. Id., ¶2. Plaintiff moved into the property on February 1, 2014. Id., ¶19. Plaintiff currently pays a rental amount of $1,145. Id., ¶20. On January 4, 2021, plaintiff started to notice water intrusion and mold present at the property. Id., ¶21. Plaintiff also identified other substandard issues present at the property. Id., ¶22. Plaintiff provided actual notice to defendants on January 11, 2021 of the issues present at the property. Id., ¶¶23, 24. Said issues have substantially interfered with the quiet enjoyment and peace of mind of plaintiff at the property. Id., ¶26. Defendants have failed and/or neglected to repair said issues. Id., ¶27. In spite of plaintiff’s pleas, the issues continued to intensify over time. Id., ¶33. Plaintiff has reported said issues to the LA County Health Department reporting multiple health code violations. Id., ¶34. Defendants were notified by the LA County Health Department of the multiple health code violations. Id., ¶35. The issues are still present. Id., ¶38.

The court notes that defendants argue that the complaint fails to state facts sufficient to constitute recovery of punitive damages as to all claims. The court will address the punitive damages claim under the motion to strike as it is not a subject for demurrer. A motion to strike is the proper method to attack a claim for punitive damages. PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4^th 1680, 1683.

As to defendants’ argument that the complaint seeks damages that may be time barred, for a statute of limitations to bar a claim on demurrer, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42. Here, any defect does not clearly and affirmatively appear on the face of the complaint.

1^st cause of action for statutory breach of warranty of habitability (Civil Code §§1941, 1941.1)

Civil Code §1941 states: “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.”

Under Civil Code §1941.1, a dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks a number of affirmative standard characteristics, including: effective waterproofing, sufficient gas, electrical, plumbing and heating infrastructure, and maintained common areas.

The complaint alleges that defendants caused the property to become untenantable under Civil Code §§1941 and 1941.1 by failing to keep the building, grounds, and appurtenances clean, sanitary, and free from debris, filth, rubbish, garbage, and mold; and failing to maintain the premises according to applicable building, health, and safety laws. Complaint, ¶47. Defendants failed to notify plaintiff of existing defects in the property on or before they took occupancy of the property. Id., ¶ 48. The defective conditions posed severe health, safety, and fire hazards. Id., ¶49. Throughout plaintiff’s tenancy, the property substantially lacked the affirmative standard characteristics listed in Civil Code §1941.1. Id., ¶54.

The California Supreme Court has held that because “under contemporary conditions, public policy compels landlords to bear the primary responsibility for maintaining safe, clean and habitable housing in our state,” there is a warranty of habitability implied in residential leases in California. Green v. Superior Court of San Francisco (1974) 10 Cal. 3d 616, 627. “The elements of such an affirmative claim are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1297 (citation omitted).

Defendants argue that this claim is duplicative of the 1^st and 9^th causes of action because they “seek to recover the same items of damages, and the elements of each claim is virtually identical.”

The complaint alleges that defendants have breached the duty to comply with building, fire, health and safety codes, ordinances, regulations, and other laws, and to maintain the premises in habitable and tenantable condition. Complaint, ¶¶ 61, 62.

The court finds that the allegations are sufficient to meet the elements. The court notes that whether a claim is “duplicative” is not a ground for demurrer and that the 1^st, 2^nd, and 9^th causes of action are separate and distinct—the 1^st cause of action is statutory, the 2^nd cause of action is based on common law, and the 9^th cause of action is statutory and based on a different code section with different elements.

Defendants only argue that this claim fails because punitive damages are not recoverable.

The court finds that the allegations are sufficient to plead the elements. Defendants even acknowledged that this case is based on negligence.

The elements of a claim for private nuisance are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage. Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable [citation], i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262-263 (citations omitted).

"The essence of a private nuisance is an interference with the use and enjoyment of land." Friends of H Street v. City of Sacramento (1993) 20 Cal. App. 4th 152, 160. Thus, to allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. See Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal. App. 4th 601, 610.

The complaint alleges that plaintiff holds a leasehold interest in and is a tenant of the property. Complaint, ¶92. The conditions of the building as described constitute a nuisance within in that these defective conditions were injurious to the health and safety to plaintiff and substantially interfered with plaintiff’s comfortable and quiet enjoyment of the premises. Id., ¶93. Despite being required by law to abate the nuisance, defendants completely failed to correct the conditions rendering the premises a nuisance. Id., ¶94.

Defendants argue that the allegations are conclusory and that plaintiff “fails to provide any details as to the notice.”

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. See Moncada v. West Coast Quartz Corp. (2013) 221 Cal. App. 4th 768, 780; Wilson v. Hynek (2012) 207 Cal. App. 4th 999, 1009. To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” Moncada, supra, at 780 (citation omitted).

“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.

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. Id. at 494. However, when reasonable persons may differ, it is for the jury, subject to the control of the Court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.¿ Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.

The complaint alleges that defendants abused their positions as landlords and acted in an outrageous manner by inducing plaintiff to rent a dwelling that contains defects, inadequate waterproofing, water intrusion, defective and inadequate plumbing which defendants had neglected for months, failing to repair the defects and plumbing in an effective manner, were intentionally done to cause harm to plaintiff. Complaint, ¶113. Defendants have the power and ability to improve the numerous defects in plaintiff’s unit, but abused that power to damage plaintiff’s interests, which is outrageous conduct. Defendants continuously ignored plaintiff’s requests that were directly related to their health and safety, which is outrageous conduct. Id., ¶114.

The court finds that these allegations are insufficient. Plaintiff does not allege facts to show extreme or outrageous conduct.

Under Civil Code §1942.4, “(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.”

The complaint alleges that on July 29, 2022, a public officer or employee from the LA County Health Department, who is responsible for the enforcement of any housing law, after inspecting the premises, has notified defendants in writing of his or her obligations to abate the nuisance or repair the substandard conditions. Complaint, ¶120. The conditions have existed and have not been abated 35 days beyond the date of service of the notice and the delay is without good cause. Id., ¶121. The conditions were not caused by an act or omission of the tenant in violation of Section 1929 or 1941.2. Id., ¶122.

Defendants argue that “[t]here is no evidence provided by Plaintiff to support” the allegations. The court notes that plaintiff is required to plead ultimate facts, not evidentiary facts.

Defendants request that the court strike all portions of the complaint seeking punitive damage at paras. 5 (line 23), 42, 43, 44, 57 (lines 21-22), 68 (line 17), 83 (17-18), 100 (27), 117 (16), 126 (line 19) and prayer at para. 5. Defendants also request that the court strike the prayer for attorney’s fees and costs at para. 7.

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

Civil Code §3294(b) states: “With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

A tenant may state a cause of action in tort against his landlord for damages resulting from a breach of the implied warranty of habitability.” Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 918-19; see also Smith v. David (1981) 120 Cal. App. 3d 101, 112 n.3 (a tenant “may seek general and punitive damages for . . . breach of warranty [of habitability]”). The court in Stoiber found that plaintiff stated sufficient facts to support exemplary damages when she “alleged that defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions…[and] alleged defendants ‘In maintaining said nuisance, . . . acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.’” Stoiber, supra, at 920 (citation omitted).

Defendants argue that the punitive damages claim cannot stand as against Nationwide because plaintiff has failed to comply with the requisite heightened pleading standards applicable to claims for punitive damages against corporate entities under Civil Code §3294(b). Defendants argue that the allegations are conclusory and also contend that “there is no evidence” of certain allegations. The court notes that at the pleading stage, evidence is not required.

The court rules as follows: The allegations are insufficient to support a claim for punitive damages. Unlike in Stoiber, the court finds that the allegations in support of plaintiff’s claim for punitive damages are merely conclusory and do not rise to the level of oppression, fraud, or malice. At best, plaintiff has alleged defendants acted negligently. “Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant ‘has been guilty of oppression, fraud, or malice,’ the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87 (citations omitted).

As to prayer for attorney’s fees, defendants do not make any argument in their memorandum of points and authorities. As such, the motion is DENIED as to attorney’s fees.