Judge Edward B. Moreton, Jr., Case Number: 22STCV28565, Date: 2023-05-18 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 22STCV28565, Date: 2023-05-18 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

JORIE ESPOSITO,

Plaintiff,

ESSEX PROPERTY TRUST, INC., et al.,

Defendants.

Case No.: 22STCV28565

Hearing Date: May 18, 2023

[TENTATIVE] ORDER RE:

DEFENDANT’S DEMURRER TO FIRST

AMENDED COMPLAINT

MOVING PARTY: Defendant Essex Property Trust, Inc.

RESPONDING PARTY: Plaintiff Jorie Esposito

This case arises from a landlord tenant dispute. Plaintiff Jorie Esposito entered into a lease agreement with Defendant Essex Property Trust, Inc. for property located at 4750 Lincoln Blvd, Marina Del Rey, California (the “Property”). (First Amended Complaint (“FAC”) ¶ 8.) Upon moving in, Plaintiff noticed the kitchen sink pipe was loose; the pipe was leaking, and the inside of the kitchen cabinet had water damage and a moldy smell. (First Amended Complaint (“FAC”) ¶ 9.) The washer and dryer also needed to be replaced. (Ibid.)

After Plaintiff requested a repair of these issues, Defendant replaced the washer dryer and fixed the leaking pipe. (FAC ¶12.) Defendant also scheduled an inspection with Benchmark, an environmental company that conducts mold tests, to address the mold and water damage in the kitchen cabinet. (FAC ¶13.) Defendant relocated Plaintiff to another unit until the work on her kitchen cabinet was completed. (FAC ¶15.)

Plaintiff requested a second mold inspection report from Benchmark, and Defendant informed Plaintiff that the second report showed it was safe for Plaintiff to move back into her unit. (FAC ¶17.) Plaintiff then requested that all filters and vents be replaced and cleaned by Defendant. Defendant replaced the filters, but did not clean the vents. (FAC ¶18.)

Thereafter, Plaintiff ordered a professional mold test from a different company, and its report showed untreated elevated levels of mold present in Plaintiff’s unit. The report concluded a large portion of the unit was uninhabitable until proper remedial measures were taken. (FAC ¶21.) Plaintiff also saw a lung specialist who concluded that Plaintiff had mycobacterium adium complex, a condition associated with mold exposure. (FAC ¶20.)

The operative (first amended) complaint alleges claims for (1) breach of warranty of habitability (violation of Civil Code § 1941.1), (2) breach of warranty of habitability (violation of Health & Safety Code § 17920.3), (3) negligence – premises liability, (4) nuisance, (5) intentional infliction of emotional distress, (6) breach of contract, (7) breach of the covenant of quiet possession, (8) fraud/deceit/intentional misrepresentation of fact, and (9) breach of the implied covenant of good faith and fair dealing.

The Court previously sustained a demurrer with leave to amend to the claims for intentional infliction of emotional distress, fraud/deceit/intentional misrepresentation and breach of the implied covenant of good faith and fair dealing. Thereafter, Plaintiff filed the FAC.

This hearing is on Defendant’s demurrer to the FAC. Defendant argues that (1) Plaintiff’s fifth cause of action for intentional infliction of emotional distress fails because Plaintiff has not alleged outrageous conduct or an intent to injure; (2) Plaintiff’s eighth cause of action for fraud fails because Plaintiff has not alleged the claim with the required specificity; and (3) Plaintiff’s ninth cause of action for breach of the implied covenant of good faith and fair dealing fails because Plaintiff has not alleged that Defendant consciously and deliberately acted to deprive Plaintiff of the benefits of their contract and the claim is also duplicative of Plaintiff’s breach of contract claim.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Intentional Infliction of Emotional Distress

The elements of a claim for intentional infliction of emotional distress are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing emotional distress, (2) the plaintiff’s suffering severe or extreme emotional distress, and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To be outrageous, conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.) The defendant must have engaged in conduct “intended to inflict injury or engaged in with the realization that injury will result. It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christenson v. Superior Court (1991) 54 Cal.3d 868, 903.)

To avoid a demurrer, the plaintiff must allege with “great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “Whether behavior is extreme or outrageous is a legal determination to be made by the court, in the first instance.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)

Plaintiff alleges Defendant failed to notify her of mold issues and “failed to take reasonable measures” to eliminate the mold. (Compl. ¶¶72, 76.) These allegations are indistinguishable from those made in the prior complaint and must fail for the same reason.

Plaintiff’s own allegations show that Defendant responded to her requests to repair the mold issues by having the property inspected for mold, replacing the moldy kitchen cabinet, moving her to a different unit while the repair was being done, obtaining a second report showing the unit was safe for Plaintiff to move back in, and replacing the filters. As a matter of law, this conduct is not so extreme or outrageous as to be beyond the pale of decency. (Rivera v. Johnson, 2022 Cal. Super. LEXIS 7718 at *2 (finding no extreme and outrageous conduct where landlord was alleged to have failed to make repairs or do adequate maintenance; “These factual allegations constitute an ordinary landlord-tenant dispute, not extreme and outrageous conduct beyond the bounds of human decency.”); Gruver v. Ih2 Prop. W., 2021 Cal. Super. LEXIS 105245 at *5 (finding no extreme and outrageous conduct where complaint contains numerous allegations of landlord’s attempts to correct complaints raised by tenants); Mason v. Lund, 2022 Cal. Super. LEXIS 58761 at *10 (finding no extreme and outrageous conduct where Plaintiffs allege Landlord failed to address a growing mold problem for over four and a half years).

The FAC also adds a new allegation that Defendant entered into the lease without disclosing the mold issues. (Compl. ¶75.) But there are no facts alleged to support the claim that Defendant knew of the mold issues at the time it entered into the lease agreement with Plaintiff. 3d 868, 903.) To avoid a demurrer, the plaintiff must allege with “great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Vasquez, 222 Cal.App.4th at 832.)

This case is unlike cases where courts have found extreme and outrageous conduct in the context of a landlord-tenant dispute. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903 presents the classic case. There, the plaintiff-tenant alleged that her landlords knew of and failed to repair multiple defective conditions in the plaintiff’s apartment, including leaking sewage from the bathroom plumbing, defective and dangerous electrical wiring, structural weaknesses in the walls, deteriorated flooring, falling ceiling, leaking roof, dilapidated doors, and broken windows. (Id. at 912.) Defendants were also cited by the health department for heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated and defective electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard. (Id.) The trial court sustained the various defendants’ demurrers and granted motions for judgment on the pleadings on the basis that the cause of action for breach of the warranty of habitability was the exclusive remedy available to the plaintiff. (Id. at 911.) The court of appeal overruled the trial court, holding that a tenant may seek legal redress for breach of implied warranty of habitability and intentional infliction of emotional distress if the landlord’s acts are extreme and outrageous and result in severe mental distress. (Id. at 922.) The court of appeal further found that, based on the facts alleged in the plaintiff's complaint, the issue of whether the landlords’ conduct was sufficiently extreme and outrageous was a factual issue that could not be determined on a demurrer or motion for judgment on the pleadings. (Id.) This case does not come close to the allegations in Stoiber.

Based on the foregoing, the Court sustains the demurrer without leave to amend as to Plaintiff’s intentional infliction of emotional distress claim.

Fraud/Intentional Misrepresentation

The elements of fraud are (1) a misrepresentation, (2) scienter or knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) resulting damage. (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged specifically as to every element of fraud in order to give defendant notice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Further, to properly allege fraud against a corporation, the plaintiffs must plead the names of the person allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

The FAC contains the same allegations as the original complaint, except it now deletes the clause “between September 9, 2021 and November 9, 2021,” which means there are now no dates associated with the fraud claim. The FAC alleges Defendant (1) concealed from Plaintiff that the Property contained dangerous levels of toxic mold and denied the presence of toxic mold, (2) made repeated and constant misrepresentations concerning the source of the mold and toxic contamination and the effects of the same to Plaintiff’s physical health, (3) intentionally misrepresented that Defendant would promptly and properly remediate the toxic mold contamination, and (4) concealed the fact that Defendant did not even test for mold (only testing for moisture). None of these allegations identify the names of the person who allegedly made the false representations, their authority to speak, what they specifically said or wrote, and when it was said or written.

Accordingly, the Court sustains the demurrer to Plaintiff’s cause of action for fraud without leave to amend.

Breach of the Implied Covenant of Good Faith and Fair Dealing

“[T]he law implies in every contract a covenant of good faith and fair dealing. Broadly stated, that covenant requires that neither party do anything which will deprive the other of the benefits of the agreement.” (Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 768; see also Rest.2d Contracts, § 205, p. 99.)

“A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated … [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” (Id. at 1394-1395.)

To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.” (Id. at 1395.) “Allegations which assert such a claim must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.” (Id.)

The FAC alleges the same facts as the original complaint, except it now adds a paragraph that contains legal conclusions and arguments. Plaintiff still fails to allege that Defendant’s actions were the result of a conscious and deliberate act as opposed to bad judgment or negligence. The allegations in the FAC indicate that Defendant attempted to repair the toxic mold contamination, although they were apparently unsuccessful in doing so. The fact they failed to remediate the problem was not the result of a conscious and deliberate act but at most, was the product of negligence.

Plaintiff’s breach of implied covenant of good faith and fair dealing claim is also duplicative of her contract claim. The claims contain virtually identical allegations; in both, Defendant is alleged to have breached by failing to provide habitable premises to Plaintiff. (Compare Compl. ¶82 with Compl. ¶110). A duplicative cause of action which adds nothing to the complaint by way of fact or theory is subject to demurrer. (Award Metals Inc. v. Superior Court (1991) 228 Cal.App.3d 1128; see also Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1504 (“When claims for invasion of privacy and emotional distress are based on the same factual allegations as those of a simultaneous libel claim, they are superfluous and must be dismissed.”); Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (sustaining demurrer to cause of action which contains all allegations of preceding four causes and action and thus “adds nothing to the complaint by way of fact or theory of recovery”).)