Judge: Douglas W. Stern, Case: 19STCV10725, Date: 2023-10-24 Tentative Ruling
Case Number: 19STCV10725 Hearing Date: October 24, 2023 Dept: 68
Michele Santopietro vs.
Esther Chao, et al; 19STCV10725
MOVING PARTY: Esther Chao, individually and
dba Las Palmas Apartments
RESPONDING PARTY: Plaintiff Michele
Santopietro
Demurrer to Second Amended Complaint
I.
BACKGROUND
This action is based on the
habitability issues of and Plaintiff’s eviction from the Subject Unit owned by
Defendant Esther Chao, dba Las Palmas Apartments. This action was filed four
years ago, on March 26, 2019. On August 29, 2023, this Court granted Plaintiff
Michele Santopietro (Plaintiff) leave to amend her complaint to add a few
causes of action, and the Court continued the jury trial in this case to
January 2024. Plaintiff filed her Second Amended Complaint on September 5,
2023.
Defendant filed a demurrer to
Plaintiff’s added Eleventh Cause of Action for Negligent Misrepresentation, Thirteenth
Cause of Action for Constructive Eviction, and Fourteenth Cause of Action for
Fraud by Concealment. Defendant argues that these causes of action are barred
by the applicable statutes of limitations. Defendant also argues that these
causes of action fail to state facts sufficient to constitute causes of action
and are uncertain.
The facts that Plaintiff has alleged
with these new causes of action are that Defendant failed to disclose
habitability issues with the property that Plaintiff alleges were known to them
at the time Plaintiff moved in. After Plaintiff complained of the habitability
issues, Defendant failed to remedy the problems, which Plaintiff alleges eventually
led to her constructive eviction. Plaintiff alleges that she suffered mental
and physical damages as a result of the misrepresentations that Defendant made
to her about the habitability of the property and due to her eviction.
Defendant filed her demurrer on September 18. Plaintiff opposes.
II. ANALYSIS
A. The Demurrer
As a
general matter, 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 pleading alone, and not the evidence or facts
alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a
demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the
plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
1. Statute
of Limitations
Defendant demurs to Plaintiff’s
Eleventh, Thirteenth, and Fourteenth Causes of Action on the basis that they
are barred by the applicable statute of limitations because the causes of
action were added 5 years after Plaintiff vacated the unit.
A complaint showing on its face that
the cause of action is barred by the statute of limitations is subject to
general demurrer. (Basin Construction Corp. v. Department of Water Power (1988)
199 Cal.App.3d 819, 823.) The statute of limitations for Fraud or Negligent
Misrepresentation is three years. (CCP § 338(d).) The statute of limitations
for Constructive Eviction is four years for a written lease. (CCP § 337.)
An amended complaint is only
considered a new action for purposes of the statute of limitations if the
claims do not “relate back” to an earlier, timely-filed complaint. Under the
relation-back doctrine, an amendment relates back to the original complaint if
the amendment: (1) rests on the same general set of facts; (2) involves the
same injury; and (3) refers to the same instrumentality. (Pointe San Diego
Residential Cmty., L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011)
195 Cal.App.4th 265, 276.) “An amended complaint relates back to an earlier
complaint if it is based on the same general set of facts, even if the
plaintiff alleges a different legal theory or new cause of action.” (Id.
at 277; see also, Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932,
934, 936; Idding v. North Bay Construction Co. (1995) 39 Cal.App.4th
1111, 1113.)
Similarly, an amendment seeking new damages “relates
back” to the original complaint if those damages resulted from the same
operative facts previously alleged—i.e., the same misconduct and same injury. (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th at 1157, 1200.)
“The policy behind statutes of limitations is to put
defendants on notice of the need to defend against a claim in time to prepare a
fair defense on the merits. This policy is satisfied when recovery under an
amended complaint is sought on the same basic set of facts as the original
pleading.” (Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670,
1678.)
Plaintiff’s original complaint was filed on March
26, 2019. Plaintiff filed her SAC on September 5, 2023, after she was granted
leave from the Court. Plaintiff argues in her opposition that her claims are
not barred by the statute of limitations because they relate back to the
original complaint. Defendant argues in her reply that the new causes of action
allege a new set of facts entirely involving an individual named Delfina
Fernandez and what was concealed from Plaintiff about the subject unit.
These new facts still relate to and are based on the
same basic facts as Plaintiff’s original pleading. Plaintiff argues that they
all involve the same injury, which was Plaintiff’s eviction from the unit and
the breach of habitability. Plaintiff has just filled in more details related
to the habitability issues and the eviction. Therefore, the new facts and
causes of action relate back to the original pleading. The new causes of action
are not barred by the statute of limitations.
2. Eleventh Cause of Action for Negligent Misrepresentation and
Fourteenth Cause of Action for Fraud by Concealment
Defendant
demurs to the Eleventh and Fourteenth Causes of Action on the basis that they
fail to state facts sufficient to constitute a cause of action and are
uncertain.
The elements of negligent misrepresentation are: (1)
misrepresentation of past or existing material fact; (2) intent to induce
reliance; (3) actual and justifiable reliance, and (4) resulting damages. (Hydro-Mill
Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc. (2004) 115
Cal.App.4th 1145, 1154.)
Plaintiff’s SAC alleges that prior
to entering the lease agreement, Defendants represented to her that the
property was in a safe and habitable condition, and that this was the
misrepresentation that they made to her. (SAC, ¶ 108.) Next, she alleges that
they made this misrepresentation to her to get her to rent the property. (SAC,
¶ 112.) Plaintiff alleges that she relied on these representations when she
rented the subject unit. (SAC, ¶¶ 113.) Finally, Plaintiff alleges that she has
suffered physical and mental damages as a result of Defendants’
misrepresentations. (SAC, ¶ 117.)
The elements of fraud are: (1)
misrepresentation (false representation, concealment, or nondisclosure); (2)
knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4)
justifiable reliance; and (5) damages. (Civ. Code §1709.) Fraud actions are
subject to strict requirements of particularity in pleading. (Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.)
Plaintiff’s SAC alleges that
Defendants made misrepresentations to her about the habitability of the
property prior to her moving in. They had knowledge of the water damage and
mold issues because prior tenants had complained. Plaintiff alleges that they
made misrepresentations regarding these things to Plaintiff because they wanted
her to rent the subject unit. Plaintiff relied on their representations
regarding the habitability when she leased the subject unit. Plaintiff alleges
that she suffered physical and mental damages as a result of the habitability
issues. (SAC, ¶¶ 139-148.)
For both of these causes of action,
Plaintiff has alleged sufficient facts to maintain them. She has alleged facts
sufficient to constitute negligent misrepresentation and fraud by concealment.
Defendant’s demurrer to Plaintiff’s Eleventh
and Fourteenth Causes of Action is overruled.
3. Thirteenth Cause of Action for Constructive Eviction
Defendant
demurs to the Thirteenth Cause of Action on the basis that it fails to state
facts sufficient to constitute a cause of action and is uncertain.
An interference by the landlord, or by someone
claiming under the landlord “by which the tenant is deprived of the beneficial
enjoyment of the premises amounts to a constructive eviction if the tenant so
elects and surrenders possession, and the tenant will not be liable for rentals
for the portion of the term following his eviction.” (Andrews v. Mobile Aire
Ests. (2005) 125 Cal.App.4th 578, 590.) “It is not necessary to show that
the landlord acted with the subjective intent to compel the tenant to leave the
property or deprive the tenant of quiet enjoyment. There is a ‘presumption that
a landlord intends the natural and probable consequences of his acts; and where
the acts of the landlord effectively deprive the tenant of the use and
enjoyment of the premises, the intent to evict is implied from the character of
the acts done” (Erlach v. Sierra Asset Servicing, LLC (2014) 226
Cal.App.4th 1281, 1300.)
Plaintiff has alleged that
Defendants constructively evicted her by failing to remedy the habitability
issues with the property. However, Defendant argues that because Plaintiff was
actually evicted as a result of the unlawful detainer action, then she cannot
maintain a cause of action for constructive eviction. Plaintiff argues in her
opposition that she was constructively evicted prior to the unlawful detainer
action because of the harassment she faced. However, the paragraphs under
Plaintiff’s Thirteenth Cause of Action for Constructive Eviction only discuss
the habitability issues as reasons for the constructive eviction and do not
mention the harassment. Plaintiff’s SAC is also confusing and contradictory as
to when the constructive eviction would have taken place, as one section of the
SAC says she was locked out after the unlawful detainer action in May 2018
(SAC, ¶ 32), and another section states that she was forced to vacate the property
on May 9, 2018, due to the conditions of the property (SAC, ¶ 134.)
These contradictions regarding the
alleged constructive eviction make this cause of action uncertain. Certainly
Plaintiff is in a position to factually allege how and when Plaintiff vacated
the premises and whether it was pursuant to an unlawful detainer judgment. Defendant’s demurrer to Plaintiff’s
Thirteenth Cause of Action is sustained with leave to amend.
III. ORDER
1.
Defendant’s demurrer to Plaintiff Eleventh
and Fourteenth Causes of Action is overruled.
2.
Defendant’s demurrer to Plaintiff’s
Thirteenth Cause of Action is sustained with leave to amend.
3.
Plaintiff is given 10 days leave to amend her
complaint.