Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises out of a landlord-tenant dispute.  The Schiff 605, LLC (“Landlord”) is the owner of the multi-unit apartment building located at 605 S. Barrington Ave., Los Angeles, California 90049 (the “Property”).  (Compl. ¶8.)  Defendant Pamela Beauregard lives at the Property and acts as the on-site manager.  (Id. ¶ 10.)  Defendant Nikki Simon is an asset manager for Landlord.  (Id. ¶ 9.)  Landlord, Beauregard and Simon are collectively referred to herein as “Defendants.” 

On or about June 1, 2009, Plaintiff and Landlord, through its predecessor in interest, BQMM LLC, entered into a Lease regarding Apartment 37 at the Property (the “Premises”.)  (Id. ¶ 11.)  Section 10 of the Lease provides: “Renter understands that the Premises are not in a full security complex and that Owner does not guarantee to employ security personnel to patrol the Premises to provide for Renter’s safety.”  (Ex. 1 to Compl.)  The parties also agreed in Section 10 that the “Owner does not take responsibility to mediate disputes between or among Renters and the obligation to resolve disputes with others on the Premises is accepted by Renter as one of the obligations of the tenancy.”  (Id.)  Section 10 of the Lease also states: “Each Renter assumes the risk of residing on the premises for himself or herself, his/her or their children and/or personal property without recourse against the Owner or Manager of the Premises.”  (Id.) 

Starting in or about 2019, the downstairs tenant (“Sean”) occupied Unit 17 at the Property, located directly below Plaintiff’s Unit 37.  (Id. ¶ 13.)  Sean had an extensive criminal record dating back to 2012, including convictions for assault, drug use, evading police arrest, DUI and reckless driving, and had been incarcerated in state prison.  (Id.)  Plaintiff alleges Sean’s criminal history would have been known to Defendants given they would have performed a background check on each prospective tenant.  (Id. ¶14.)   

Plaintiff allegedly made several complaints to management about Sean making loud noises, but requested that his complaints be kept anonymous.  (Id. ¶¶ 15-17.)  Defendants failed to stop the noise, and worse still, Defendants purportedly identified to Sean that Plaintiff was the complaining party.  (Id. ¶18.)   Plaintiff claims Defendants did so to force Plaintiff out of the building and allow them to raise the rent on his “below-market apartment”.  (Id.)   

The Complaint alleges that Sean retaliated against Plaintiff by forcibly pounding on Plaintiff’s front door and windows, yelling obscenities and making violent threats against Plaintiff.  (Id.¶¶ 19-23.)  Plaintiff reported these abuses to Defendants and requested Defendants take action to protect Plaintiff, but Defendants purportedly refused.  (Id. ¶25.) 

Based on judicially noticeable facts, Defendants contend they actually took steps to evict Sean.  Landlord posted a 3-Day Notice to Pay Rent or Quit on March 5, 2023.  (Ex. A to Request for Judicial Notice (“RJN”).)  Sean was not present so the 3-Day Notice was posted at the Property on March 17, 2023.  Then, with no response to the 3-Day Notice, Landlord filed an unlawful detainer complaint against Sean.  (Id.)  The Court entered a default judgment for possession against Sean on June 23, 2023 and issued a writ of possession the same day.  (Ex. C to RJN.)  Sean was eventually evicted from the Property on August 3, 2023.  (Ex. D to RJN.)   

In addition to Sean, Plaintiff claims he complained to Defendants about loud banging in his apartment caused by pipes when the heater was running.  (Id. ¶31.)  After sending several repairmen to inspect the issue, Plaintiff alleges Defendants decided not to make “easy” repairs.  (Id. ¶ 32.)  Plaintiff also complains that Defendants changed the gate code to the Property.  (Id. ¶34.)  Plaintiff claims he was locked out for an undisclosed amount of time because he was not timely provided the new gate code.  (Id.)  Plaintiff alleges these acts and/or omissions were part of Defendants’ scheme to force him out of his apartment.  (Id. ¶¶ 33, 36.)   

The Complaint alleges six claims for: (1) breach of lease, (2) breach of implied covenant of quiet enjoyment, (3) constructive eviction, (4) violation of Tenant Anti-Harassment Ordinance, (5) negligence and (6) intentional infliction of emotional distress.  The first three claims are alleged only against Landlord, while the last three claims are alleged against all Defendants.   

This hearing is on Defendants’ demurrer to the Complaint.  Defendants argue that (1) Plaintiff’s first cause of action against Landlord for breach of the Lease is uncertain because it fails to identify any lease terms that Plaintiff asserts were breached; none of the alleged breaches is tied to any resulting damages; and in any event, the Lease provides that Landlord is not required to mediate any disputes between tenants; (2) Plaintiff’s second cause of action for breach of the implied covenant of quiet enjoyment against Landlord fails because Plaintiff’s complaints are trivial and do not affect his enjoyment of the premises; (3) Plaintiff’s third cause of action for constructive eviction against Landlord fails because an integral part of any such claim is that the tenant has already vacated the premises, and here, Plaintiff remains in possession of the Premises; (4) Plaintiff’s fourth cause of action against all Defendants for violating the Tenant Anti-Harassing Ordinance fails because Plaintiff has not identified which subsection, if any, Defendants have purportedly violated, and Plaintiff’s claim that Defendants allowed Sean to unreasonably remain on the Premises is demonstrably false; (5) Plaintiff’s fifth cause of action for negligence against all Defendants fails because one cannot assert a negligence claim where Defendants’ acts were expressly authorized by the parties’ contract, and in any event, Landlord did take action to evict Sean; and (6) Plaintiff’s sixth cause of action for intentional infliction of emotional distress fails because there is indisputable evidence Defendants initiated eviction proceedings against Sean, and the parties agreed in the Lease that Landlord is not obligated to mediate tenant disputes.     

MEET AND CONFER   

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41(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).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Defendants submit the Declaration of Jeffrey Goodfried which shows the parties met and conferred by telephone, thereby satisfying the requirements of § 430.41.  (Goodfried Decl. ¶ 3.)   

REQUEST FOR JUDICIAL NOTICE  

Defendants request judicial notice of (1) the unlawful detainer complaint filed against “Sean”, Case No. 23SMUD00755, (2) the declaration of non-service verified by registered process server on or about May 3, 2023, (3) the writ of possession ordering the Sheriff’s Department to enforce the judgment of eviction at Apartment 17, issued in Case No. 23SMUD00755 on June 23, 2023, and (4) notice to vacate issued by the Sheriff’s Department noticing the eviction at Apartment 17 on August 3, 2023.  The Court grants the request pursuant to Evid. Code §§ 452(c), 452(d), 452(h), and 453. 

LEGAL STANDARD 

“[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.) 

DISCUSSION 

Breach of Lease 

Landlord argues that Plaintiff’s breach of lease claim fails because it is uncertain and also because the alleged breaches are expressly allowed under the Lease.  The Court concludes the breach of lease claim is uncertain and does not reach the second ground.   

The Complaint alleges a series of alleged breaches – i.e., revealing Plaintiff’s identity to Sean, failing to provide sufficient security, failing to address Sean’s violent behavior, failing to evict Sean, changing the security codes without notifying Plaintiff, and refusing to repair the noisy pipes in the walls of Plaintiff’s unit.  (Compl. ¶ 42.)  However, Plaintiff has not explained how any of these alleged acts and/or omissions breached any provisions of the Lease.  This is particularly troublesome because, as Defendants point out, the Lease expressly provides that, as to Plaintiff’s complaints about Sean, Landlord is not responsible for mediating disputes between Tenants.  (Ex. 1 to Compl., Section 10.)  Accordingly, the Court sustains the demurrer to the breach of lease claim with 20 days’ leave to amend. 

Breach of Quiet Enjoyment 

Landlord argues that Plaintiff’s complaints are trivial and do not support a claim for breach of the implied covenant of quiet enjoyment.  The Court disagrees with Landlord but nonetheless concludes the claim fails because Plaintiff’s complaints are contrary to the terms of the Lease, and a breach of quiet enjoyment cannot be based on alleged acts and/or omissions authorized under the Lease. 

The necessary elements for breach of the covenant of¿quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2) the absence of language¿contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) an act or omission of the landlord, or anyone claiming under the landlord, which substantially interferes with a tenant’s right to use and enjoy the premises for purposes contemplated; and (4) an applicable remedy.¿ (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.) 

Here, Plaintiff claims a breach of quiet enjoyment based on Defendant’s failure to prevent Sean’s harassment.  (Compl. ¶ 49.)  The alleged failure substantially interfered with Plaintiff’s enjoyment of his unit, i.e., Plaintiff was in constant fear for his safety as a result of Sean’s violent threats.  But the Lease contains language contrary to the implied covenant Plaintiff seeks to impose.  The Lease expressly provides the Landlord was not required to mediate disputes between tenants; that Plaintiff assumes the risk of residing on the premises for himself or herself without recourse against the Owner or Manager of the Premises, and Landlord does not guarantee to provide security personnel.  (Ex. 1 to Compl., Section 10.)  

Accordingly, the Court sustains the demurrer to the second cause of action without leave to amend.    

Constructive Eviction 

Landlord argues that Plaintiff’s constructive eviction claim fails because Plaintiff is still in possession of the premises.  The Court agrees. 

An integral part of any constructive eviction case is that the tenant has already vacated the premises.  (Ginsberg v. Gunson (2012) 205 Cal.App.4th 873, 897-898 (“An essential element of a wrongful eviction claim is that the tenant has vacated the premises.”); Cunningham v. Universal Underwriters (2002) 98 Cal.App.4th 1141, 1152 (“There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment.”).)   

Here, Plaintiff fails to allege that he has vacated the Premises.  (Compl. ¶¶ 54-58.)  Since Plaintiff has not vacated the Premises, there is no cause of action for an “eviction.”  Accordingly, the Court sustains the demurrer to Plaintiff’s constructive eviction claim without leave to amend.      

Anti-Harassment Ordinance 

Defendants argue that Plaintiff’s violation of Tenant Anti-Harassment Ordinance is uncertain and also fails because Plaintiff has not alleged he provided notice to Defendants.  The Court agrees.   

Plaintiff alleges Defendants’ actions in failing to protect him against Sean constitute a violation of Sections 45.33 and 151.33 of the Los Angeles Municipal Code (“LAMC”).   Section¿45.33 is a tenant harassment statute that prohibits landlords from knowingly and willfully committing certain conduct against tenants that serves no lawful purpose.  LAMC section 45.35, subdivision (F), states that “A civil proceeding or small claims case initiated under this article alleging any violation of Section¿45.33¿may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.”  Plaintiff fails to allege compliance with the written notice requirement of LAMC Section 45.35, subdivision (F).  Further, under Section 45.33 of the Municipal Code, there are sixteen (16) items that constitute harassment.  Plaintiff’s claim is uncertain because he fails to identify which subsection, if any, Defendants have purportedly violated.   

Section 151.33 provides that in addition to the sixteen items that constitute harassment in Section 45.33, tenant harassment also includes offering payments to a tenant to vacate their unit without providing written notice to the tenant of their rights under Section 151.31 of the Code (Tenant Buyout Notification Program).  There is no allegation in the Complaint that Defendants offered payments to Plaintiff to vacate his unit, much less that they did so without the required notice set forth in Section 151.31.   

Accordingly, the Court sustains the demurrer to Plaintiff’s violation of the Tenant Anti-Harassment Ordinance with 20 days’ leave to amend. 

Negligence 

Defendants argue that Plaintiff’s negligence claim fails because Plaintiff cannot claim negligence based on conduct allowed in the Lease; allegations that Landlord failed to prevent Sean from engaging in retaliatory and harassing conduct toward Plaintiff are demonstrably false as Landlord evicted Sean, and insofar as Plaintiff asserts a theory of negligence per se, he fails to identify any of the “several statutes and laws” upon which his claim is purportedly based.  The Court disagrees.     

Plaintiff’s negligence claim is not limited to Defendants’ failure to protect Plaintiff from Sean.  It also includes Plaintiff’s claim that “Defendants negligently managed the building, allowing the heating and pipes to deteriorate and to shake with banging and knocking noises, which they refused to fix despite demand and despite ample proof of the problem and the easy fix identified by their own handyman.”  (Compl. ¶ 66.)  Defendants fail to address this allegation.   

As a demurrer cannot be made to only part of a claim, the Court overrules the demurrer to Plaintiff’s negligence claim.  (Kong¿v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047¿(“a¿demurrer cannot rightfully be sustained to part of a cause of action .. .”); accord¿Greese v. Sup. Ct. (1984) 157 Cal.App.3d 159, 163.)¿     

Intentional Infliction of Emotional Distress 

Defendants argue that Plaintiff’s claim for intentional infliction of emotional distress fails because the alleged wrongdoing in failing to protect Plaintiff from Sean is expressly allowed under the Lease and in any event, there is undisputable evidence that Defendants evicted Sean. The Court agrees. 

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.)  “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Id.)  Here, the Court cannot conclude that Defendants’ actions or omissions constitute extreme and outrageous conduct when the Lease expressly allows Landlord to do nothing to mediate disputes between tenants.   

Further, to the extent Plaintiff’s intentional infliction claim rests on Defendants’ alleged failure to repair noisy pipes (Compl. ¶ 78), that omission cannot conceivably constitute extreme and outrageous conduct.  A failure to repair noisy pipes is not so extreme as to exceed all bounds of that usually tolerated in a civilized society.   

Accordingly, the Court sustains the demurrer to Plaintiff’s intentional infliction of emotional distress claim with 20 days’ leave to amend.     

Claims Against Individual Defendants 

Plaintiff states he will dismiss both Simon and Beauregard if The Schiff 605 does not dispute these individual defendants were acting in the course and scope of their employment.  (Motion at 4:15-18.)  Defendants admit these individual defendants were acting in the course and scope of their employment.  (Reply at 7:12-16.)  Accordingly, the Court dismisses the claims against the individual defendants without leave to amend.   

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants’ demurrers to the Complaint with 20 days’ leave to amend as to the first, fourth and sixth causes of action, and without leave to amend as to the second and third causes of action.  The Court also dismisses the claims against Defendants Nikki Simon and Pamela Beauregard without leave to amend.      

IT IS SO ORDERED. 

 

DATED: May 8, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court