Judge: Douglas W. Stern, Case: 21STCV30565, Date: 2023-03-24 Tentative Ruling

Case Number: 21STCV30565    Hearing Date: March 24, 2023    Dept: 68

Eric McDowell vs. Joanne C. Warren, et al. Case No. 21STCV30565

MOTION:       (1) Demurrer to Second Amended Complaint and (2) Motion to Strike

MOVING PARTY:    Defendants Inglewood Properties II, LLC; Warren Family Limited Partnership; Joanne C. Warren, as Trustee of the Frank R. Warren and Joanne C. Warren Trust; J&J Cohen Properties, LLC; and Warren Properties, Inc. (Defendants)

RESPONDING PARTY:      Plaintiff Eric McDowell

I. BACKGROUND

A. Factual

Plaintiff’s Second Amended Complaint alleges nine causes of action related to his tenancy at Defendants’ property and the alleged problems that occurred during that tenancy. The causes of action that Plaintiffs are alleging are for (1) breach of contract; (2) breach of covenant of quiet enjoyment; (3) breach of statutory warranty of habitability; (4) private nuisance; (5) violation of Inglewood Municipal Code 8-123; (6) fraud; (7) unfair business practices; (8) intentional infliction of emotional distress; and (9) wrongful eviction.

In his Second Amended Complaint, Plaintiff makes numerous allegations as to habitability of the property where he lived and which he is alleging Defendants owned and for which Defendants were responsible. Plaintiff alleges vermin and pest infestations, leaks and mold, ongoing disruptive constructive, electrical problems, and that Defendants served them with a defective notice to vacate. (SAC, ¶¶ 23-35.) Plaintiff also alleges that Defendants were the subject of numerous complaints regarding the condition of the property. Plaintiff indicates that he began living at the property in November 2015 (SAC, ¶ 16), and it appears that Plaintiff vacated the property around September 2019 (SAC, ¶ 22.) While Plaintiff alleges all these things, Plaintiff did not include the terms of the written lease agreement upon which his tenancy was allegedly based.

B. Procedural

This action was filed by Plaintiff on August 18, 2021. Defendants filed the Demurrer with Motion to Strike that is now before the Court on February 2, 2023. Plaintiff filed his opposition on March 13, 2023. Defendants filed a reply on March 17, 2023.

C. Judicial Notice

Defendants requested that the Court take judicial notice of the parties’ Stipulation and Order re: Leave to Amend First Amended Complaint and a general warranty deed that shows the ownership of record for the property.

For what purpose?  Neither appears to be properly relevant to the demurrer and motion to strike.  Denied.

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).

B. Demurrer Based on Improper Joinder of Parties

Defendants demur as to the inclusion of Warren Family Limited Partnership (WFLP), Joanne C. Warren, as Trustee of the Frank R. Warren and Joanne C. Warren Trust (the Trust), and J&J Cohen Properties LLC (J&J) on the basis that they are investors in Inglewood Properties II, LLC, as a limited liability company and were improperly joined. Additionally, Defendants argue that WFLP and J&J sold the Subject Property on or about July 1, 2019, to Inglewood Properties, II LLC. (NOL Ex. B.)

Investors in corporations and limited liability companies have limited liability. A limited liability company is separate and distinct from its members. (Cal. Corp. Code § 17701.04(a) (a “limited liability company is an entity distinct from its members”); Paclink Commc‘n Int'l v. Super. Ct. (2001) 90 Cal.App.4th 958, 963.) This means it has the power to “[m]ake contracts” and “be sued.” (Cal. Corp. Code § 17701.05(b).) Its members enjoy limited liability. Thus, an LLC’s “debts, obligations, or other liabilities” whether arising in contract, tort, or otherwise, are solely the LLC’s. (Cal. Corp. Code § 17703.04(a); Kwok v. Transnation Title Ins. Co. (2009) 170 Cal.App.4th 1562, 1571.)

Defendants argue that they have no liability because of their claimed status as investors.  They state that WFLP, the Trust, and J&J are members of Inglewood Properties II, LLC, the current owner of the subject property. But their view of the “real” facts is not properly before this Court at this juncture.

Plaintiff’s SAC and opposition claim that the named Defendants were at various points during Plaintiff’s tenancy owners of the subject property and therefore are all liable for the problems with the subject property because of that capacity. (SAC, ¶¶ 8 and 18; Opposition at pp. 4-5, 7; see Cal. Civil Code §823; see also Standard Livestock Co. v. Pentz (1928) 204 Cal. 618.) Plaintiff’s claim (which the Court must accept as true) is that all named Defendants were the owners and/or managers of the premises during the relevant times.

Accordingly, because Plaintiff has pled that all named Defendants were owners and/or managers of the property during the relevant time, sustaining the demurrer based on improper joinder as to the specified parties would not be appropriate.

C. Demurrer as to the Individual Causes of Action

1. First Cause of Action for Breach of Contract

Defendants demur to the breach of contract cause of action on the basis that it fails to state facts sufficient to constitute a cause of action because it is barred by the statute of limitations, and there is no contractual privity between Plaintiff and most of the Defendants.

Basic contract law states that for a breach-of-contract claim to prevail, there must be a contract in existence. A contract requires: (1) parties capable of contracting; (2) mutual consent; (3) a lawful objective; and (4) adequate consideration. (Cal. Civ. Code § 1550.) “It goes without saying that a contract cannot bind a nonparty.” (E.E.O.C. v. Waffle House, Inc. (2002) 534 U.S. 279, 294 (2002).) Only a party to a contract can be liable for damages caused by a breach of that contract. (See, e.g., Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 (stating that plaintiff must prove the existence of a contract to prevail on breach of contract claim).) When considering whether a contract exists between entities or individuals, “[w]here parties have reduced their agreement to writing, their mutual intention is to be determined, whenever possible, from the language of the writing alone.” (Beard v. Goodrich (2003) 110 Cal.App.4th 1031, 1040 (citation omitted).) A court must consider the “clear and explicit language of the contract” when a plaintiff “bases his claims for relief on the terms of an express contract.” (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1146 (citing Cal. Civ. Code § 1638 and explaining that plaintiff’s allegations were “contradicted by the agreements he signed”); see also Brakke v. Econ. Concepts, Inc. (2013) 213 Cal.App.4th 761, 767-68 (“[F]acts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.”) (citations omitted).) 

For breach of a written contract, the statute of limitations period is four years from the time the claim accrues. (CCP § 337.) Traditionally, a claim accrues “when [it] is complete with all of its elements–those elements being wrongdoing [or breach], harm, and causation.” (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341.) The “theory of continuous accrual” allows a plaintiff to recover for every violation that has occurred during the pertinent statute of limitations period even if the initial violation occurred years before and outside the period. (Aryeh v. Canon Bus. Solutions (2013) 55 Cal.4th 1185, 1197-1198, citing, Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 818-822.) Under the “theory of continuous accrual” separate violations of invasions of the same right can trigger their own statute of limitations where there are a series of discrete, independently actionable, alleged wrongs and there are continuing acts of malfeasance. (Aryeh v. Canon Bus. Solutions, supra, 55 Cal.4th at 1198.)

Plaintiff alleges a breach of contract claim against all Defendants. However, the only Defendant which Plaintiff appears to allege that it had a contract with was Warren Properties, Inc. Plaintiff fails to provide any details as to the terms of the alleged lease agreement or provide the Court with a copy of the alleged written agreement. Without providing the language of the contract or indicating which Defendants signed the contract, Plaintiff cannot maintain a cause of action for breach of contract.

The Court finds this cause of action and all subsequent causes of action were timely under the statute of limitations because of the theory of continuous accrual. The causes of action that Plaintiff is alleging would have accrued through the end of Plaintiff’s tenancy in September 2019.

Accordingly, Defendants’ demurrer as to Plaintiff’s First Cause of Action is SUSTAINED with leave to amend due to lack of specificity.

2. Second Cause of Action for Breach of Covenant of Quiet Enjoyment

 Defendants object to this cause of action on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain, ambiguous, and unintelligible.

In the body of Defendants’ moving papers, Defendants primarily object to this cause of action because they claim it is duplicative of the breach of contract claim. (Demurrer at p. 7.) However, it is not duplicative, and Plaintiff has pled facts sufficient to indicate that a landlord/tenant relationship existed, so Plaintiff may maintain a cause of action for breach of covenant of quiet enjoyment. Additionally, as was the case with the first cause of action, the statute of limitations has not run because of the theory of continuous accrual.

Accordingly, Defendants’ demurrer as to Plaintiff’s Second Cause of Action is OVERRULED.

3. Third Cause of Action for Breach of Statutory Warranty of Habitability

Defendants object to this cause of action on the basis that it does not allege facts sufficient to constitute a cause of action and is duplicative of the Breach of Contract claim.

In California, the warranty of habitability is implied by law in residential leases. (Green v. Superior Court (1974)10 Cal.3d 616, 637.) This implied warranty imposes upon the landlord the obligation to maintain leased dwellings in habitable condition throughout the term of the lease. (See Peterson v. Sup. Ct. (1995) 10 Cal.4th 1185.) “This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained.” (Green, supra, at 616.)

While Plaintiff has not provided the terms of the lease agreement, Plaintiff has pled facts sufficient to show that a landlord/tenant relationship existed and that there were habitability issues with the property due to the unsanitary and unsafe conditions. As such, Plaintiff may maintain a cause of action for breach of statutory warranty of habitability.

Accordingly, Defendants’ demurrer as to Plaintiff’s Third Cause of Action is OVERRULED.

4. Fourth Cause of Action for Private Nuisance

Defendants demur as to the cause of action for nuisance on the basis that it is barred by the statute of limitations.

Defendants only object to this cause of action based on the statute of limitations. However, Plaintiff’s nuisance claims would have continued to accrue until the end of Plaintiff’s tenancy under the theory of continuous accrual.

Accordingly, Defendants’ Demurrer as to Plaintiff’s Fourth Cause of Action is OVERRULED.

5. Fifth Cause of Action for Violation of Inglewood Municipal Code 8-123

Defendants demur as to this cause of action because they claim that it fails to state sufficient facts to constitute a cause of action and is uncertain, ambiguous, and unintelligible.

Inglewood Municipal Code section 8-123 requires that the owner of a rental provide relocation assistance if a tenant must relocate due to a government order.

Plaintiff has pled facts alleging that Defendants claimed that Plaintiff was being evicted because the City of Inglewood had issued an order requiring him to vacate. If that is the case, then it appears that Inglewood Municipal Code section 8-123 would apply, and Defendants would have been required to provide relocation assistance. As such, Plaintiff has pled facts sufficient to maintain a cause of action under this municipal code section.

Accordingly, Defendants’ Demurrer as to Plaintiff’s Fifth Cause of Action is OVERRULED.

6. Sixth Cause of Action for Fraud

Defendants demur as to the cause of action for fraud because they allege that it fails to state facts sufficient to constitute a cause of action and does not meet the heightened pleading standard required of fraud claims.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and resulting damage.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Fraud must be pleaded with specificity. (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921.) Fraud allegations must be pled with more detail than other causes of action. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226.) The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. (Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal.App.4th 301.)

A plaintiff asserting fraud by misrepresentation is obliged to establish a causal relationship between the alleged misrepresentations and the harm claimed to have resulted therefrom, which requires a plaintiff to allege specific facts not only showing he or she actually and justifiably relied on the defendant’s misrepresentations, but also how the actions he or she took in reliance on the defendant’s misrepresentations caused the alleged damages. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008.)

Plaintiff’s allegations are confusing, largely because they admit to nothing more than a failed attempt to mislead the Plaintiff.  He alleges that since early 2019 Gabriel Medina sought to illegally regain possession of the premises by making false statements to Plaintiff.  (¶ 76.)  But Plaintiff admits that the lies did not work and that by April 2019 Plaintiff had not vacated the premises.  Then lies were told to Plaintiff by Valerie Sparks to get Plaintiff to vacate.  (¶ 77.)  Eventually, Plaintiff and the City of Inglewood (but not the Defendants) reached a stipulation that caused Plaintiff to vacate.  (¶ 78.)  Thus, Plaintiff was did not rely on the false statement, and was not induced to take action based on his “reasonable reliance” on the claimed false statements.  Quite the contrary, it was due to the agreement between the Plaintiff and the City, which Plaintiff goes out of his way to note did not involve the Defendants.  (¶ 78.)

Plaintiff cannot maintain a cause of action for fraud because he has failed to plead sufficient facts to constitute a cause of action.

Accordingly, Defendants’ Demurrer as to Plaintiff’s Sixth Cause of Action is SUSTAINED.  The Court desires argument on whether there is any reason to allow an amendment on this claim in light of what appears to be the admission of Plaintiff that the Defendants were not parties to the agreement with the City that led him to vacate.

7. Seventh Cause of Action for Unfair Business Practices

Defendants only object to Plaintiff’s cause of action for Unfair Business Practices based on their claim that the statute of limitations had run. However, the theory of continuous accrual would mean that the statute of limitations would have accrued to the end of Plaintiff’s tenancy in September 2019.

Accordingly, Defendants’ Demurrer as to Plaintiff’s Seventh Cause of Action is OVERRULED.

8. Eighth Cause of Action for Intentional Infliction of Emotional Distress

Defendants object to Plaintiff’s cause of action for intentional infliction of emotional distress (IIED) on the basis that Plaintiff has not pled sufficient facts to maintain a cause of action for IIED.

To successfully plead a cause of action for intentional infliction of emotional distress, a plaintiff must allege: (1) outrageous conduct by the defendant; (2) an intention by the defendant to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe emotional distress; and (4) an actual and proximate causal link between the tortious conduct and the emotional distress. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, cert. den. 490 U.S. 1007.) The California Supreme Court set a “high bar” for what can constitute severe emotional distress. “Severe emotional distress means ‘emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.”’ (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)

As currently pled, it appears that Plaintiff attempts to impute intent on the landlord’s failure to remedy the alleged problems. Plaintiff has not pled facts with sufficient specificity to demonstrate that Defendants intended harm to him, nor has he pled facts sufficient to show that the landlord demonstrated a reckless disregard of the probability of causing emotional distress. As such, Plaintiff cannot maintain a cause of action for IIED as currently pled.

Accordingly, Defendants’ Demurrer as to Plaintiff’s Eighth Cause of Action is SUSTAINED with leave to amend.

9. Ninth Cause of Action for Wrongful Eviction

Defendants demur as to Plaintiff’s cause of action for wrongful eviction on the basis that it is duplicative of Plaintiff’s fraud and breach of contract claims.

Plaintiff does not appear to oppose Defendant’s demurrer to this cause of action in his opposition. The Court would agree that this cause of action does not seem substantially different from Plaintiff’s other causes of action, and the facts as pled are uncertain.

Accordingly, Defendants’ Demurrer as to Plaintiff’s Ninth Cause of Action is SUSTAINED with leave to amend.

IV. The 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(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. (Id., § 436(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. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

1. Alter Ego/Agency Allegations

Defendants request that the Court strike Plaintiff’s “alter ego/agency” allegations (SAC, ¶¶ 12, 18, and 59) from Plaintiff’s SAC.

Defendants object to these references on the basis that they imply that Plaintiff is attempting to pierce the corporate veil. Plaintiff’s response is not understood by the Court.

“Defendants also improperly contend that Plaintiff are attempting to pierce the corporate veil. No such piercing is necessary since Plaintiff has alleged that each of these entities themselves (not through their ownership or involvement in any trust or corporation) was the manager or owner of the Subject Property during Plaintiffs’ tenancy”

It appears that Plaintiff agrees that the allegations of “alter ego” are not being made.  Instead, Plaintiff is relying on his allegation that they are “owners or managers” and liable on that basis.

This distinctions can not be ignored.  If Plaintiff is alleging liability arising from “alter ego” then Plaintiff should make such an allegation directly and factually.  If Plaintiff is not seeking to impose liability on the basis of “alter ego” then this allegation should be stricken.

Based on the understanding that the Court has of the intent of Plaintiff to not seek to impose liability based on “alter ego” the motion to strike the alter ego allegations is GRANTED without leave to amend.

2. Punitive Damages

Defendants request that the Court strike Plaintiff’s punitive damages and malicious conduct allegations (SAC, ¶¶ 48, 58-60, 68-69, 73, and 105) and request for punitive damages (SAC, Plaintiff’s prayer for relief for “exemplary and punitive damages according to proof” (subpart 4)) from Plaintiff’s SAC.

Punitive damages are only awarded in a narrow set of circumstances where a defendant intends to cause harm. (Woolstrum v. Mailoux (1983) 141 Cal.App.3d Supp. 1, 10 [quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286].) Thus, a claim for punitive damages can be stricken if it fails to provide facts sufficient to support allegations of intent. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive damages claims are typically improper in a negligence claim because negligence is, by its very definition, unintentional. (Woolstrum, supra, 141 Cal.App.3d Supp. at p. 10 (quoting Prosser, Law of Torts (4th ed. 1971) p. 9).)

To sufficiently plead a claim for punitive damages pursuant to Civil Code §3294, a plaintiff must satisfy circumstances of "malice, oppression, or fraud," supported by facts alleged with sufficient particularity. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) These allegations are held to a heightened pleading standard: a plaintiff may not state a mere conclusion of law to support a cause of action. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6.) More importantly, the plaintiff may not simply "plead . . . a claim for damages in the language authorizing such damages." (Id.) While some conclusory statements may be permitted, they must make sense in the context of the Complaint taken as a whole. (Id.)

Plaintiff has not pleaded facts sufficient to show that Defendants intended to cause harm or alleged facts with sufficient particularity to show that there was malice, oppression, or fraud on the part of Defendants. Plaintiff mainly makes conclusory statements as to Defendants’ alleged malice.

Accordingly, Defendants’ motion to strike Plaintiff’s punitive damages allegations and claim is GRANTED with leave to amend.

III. ORDER

1.            Defendants’ demurrer is sustained in part (as to the First, Sixth, Eighth, and Ninth Causes of Action) with leave to amend.

2.            Defendant’s motion to strike is granted with leave to amend as noted above.

3.            Plaintiff is given 20 days from the date of this order to file an amended complaint.