Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

  This case arises from a landlord-tenant dispute.  Plaintiffs Sherwin Tehrani Arae and Ida Molayem Arae sued Defendants Vylox, Inc., Bella Vista Property Management, Inc. and Paragon Property Management Group LLC for alleged uninhabitable conditions of a condominium unit located at 120 S. Palm Dr., #101, Beverly Hills, California (the “Property”).  On January 24, 2024, Plaintiffs filed a Doe Amendment to the Complaint naming Doe 1 as Fleur De Lis at Palm Homeowners Association Inc. (“Fleur De Lis”).     

Plaintiffs, tenants of Unit 101, allege water leaks coming through the flooring in the unit caused mold to grow in the unit.  (Compl. ¶¶ 13, 19.)  Plaintiffs allege they suffered from health problems as a result of the mold.  (Id. ¶18.)  Plaintiff further allege that in order to allow for repairs, they were forced to relocate for a period of six months (Id. ¶¶ 22, 23), and Defendants refused to reimburse them for their relocation expenses.  (Id. ¶¶ 23, 31.)   Plaintiffs further allege that when they moved back into their unit, there were additional water leaks and toxic mold.  (Id. ¶¶ 25-27, 30.)   

Plaintiffs also allege that Defendant Vylox served them with a 3 day notice to pay or quit even after Plaintiffs agreed to pay additional rent, that it increased the rent in retaliation of Plaintiffs’ complaints and thereafter served a second 3-day notice to pay or quit, and that Defendants commenced an unlawful detainer proceeding in retaliation for Plaintiffs’ complaints about the water leaks, the mold and not receiving relocation assistance.  (Id. ¶¶31-35.) 

The operative complaint alleges eight claims for (1) breach of implied warranty of habitability, (2) tortious breach of implied warranty of habitability, (3) negligence, (4) intentional infliction of emotional distress, (5) private nuisance, (6) violation of Civ. Code § 1942.4, (7) violation of Bus. & Prof. Code § 17200, et seq., and (8) retaliation- Civil Code § 1942.5.   

This hearing is on Defendant Fleur De Lis’ (“Moving Defendant’s) demurrer and motion to strike.  Moving Defendant argues that (1) Plaintiffs lack standing to maintain a cause of action against it as they are not owners of the unit and cannot sue Moving Defendant to enforce the CC&R’s; (2) Plaintiffs have not shown any duty owed by Moving Defendant to them, independent of the CC&R’s; (3) Plaintiffs’ first cause of action for breach of the implied warranty of habitability fails because Moving Defendant is not the landlord; (4) Plaintiffs’ second cause of action for tortious breach of the implied warranty of habitability fails as Moving Defendant owed no duty to Plaintiffs; (5) Plaintiffs’ third cause of action fails as the Moving Defendant is not responsible for maintenance or repairs to the interior of the unit; (6) Plaintiffs’ fourth cause of action for intentional infliction of emotional distress fails because there is no fact alleged in the Complaint that would support a showing of extreme and outrageous conduct by Moving Defendant; (7) Plaintiffs’ fifth cause of action for private nuisance fails because Plaintiff has not allege any act on the part of Moving Defendant that interfered with their use or enjoyment of the Property, much less that the interference was unreasonable and substantial; (8) Plaintiffs’ sixth cause of action for violation of Civ. Code §1942.4 fails because Moving Defendant is neither the landlord nor the owner of the Property; (9) Plaintiffs’ seventh cause of action for violation of Bus. & Prof. Code §17200 fails because it is merely duplicative of their tortious breach of warranty of habitability and breach of warranty of habitability claims; (10) Plaintiffs’ eighth cause of action for retaliation fails because there are no facts which would support retaliation by Moving Defendant; and (11) Plaintiffs’ claims are uncertain.  Moving Defendant also moves to strike Plaintiffs’ claim for punitive damages as Plaintiffs have not sufficiently allege malice, oppression or fraud by Moving Defendant.   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A general 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.)  

A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

Further, the court may, upon 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, subd. (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. (Code Civ. Proc. § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

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.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendants submit the Declaration of Diana Torres-Brito which states defense counsel met and conferred with Plaintiff’s counsel, but it is unclear whether the meet and confer occurred by telephone or in person.  Notwithstanding, the Court cannot overrule a demurrer based on an inadequate meet and confer.  (Code Civ. Proc. §§ 430.41(a)(4), 435.5(a)(4).) 

 

DISCUSSION 

The Court agrees with Moving Defendant that the Complaint is fatally uncertain as to Moving Defendant.  Because Moving Defendant was added by Doe amendment, there are no specific facts pleading what actions it is alleged to have taken that would support any of the causes of action.  Accordingly, the Complaint cannot withstand a demurrer based on uncertainty.   Given this uncertainty, the Court declines to consider (for now) other arguments raised by Moving Defendant as to why each of Plaintiffs’ causes of action must fail.  The more efficient approach is to allow Plaintiffs leave to amend so that there is clarity as to why Plaintiffs contend Moving Defendant is liable for any of the causes of action.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer with 20 days’ leave to amend.  The Court DENIES as moot Defendant’s motion to strike.   

IT IS SO ORDERED. 

 

DATED:  April 25, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court