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 Gavin and Elizabeth Behrman entered into a lease agreement with Defendants Marion and Cindy Vohland (the “Vohlands”) to rent residential property owned by the Vohlands (the “Property”), for a term of one year (the “Lease”).  (First Amended Complaint (“FAC”) ¶ 17.)  Plaintiffs and their two young children moved into the Property, without an opportunity to inspect the Property.  (Id. ¶ 19.)   

Thereafter, Plaintiffs contacted the Vohlands to express concern about possible mold at the Property.  (Id. ¶ 20.)  Plaintiffs paid for mold testing out of pocket, which confirmed there were dangerous levels of mold contamination.  (Id. ¶ 21.)  Plaintiffs relayed the results of the mold tests to the Vohlands, who were uncaring and defensive.  (Id. ¶ 22.)  Eventually, however, the Vohlands agreed to remediate the Property.  (Id. ¶ 23.) 

However, Plaintiffs claim the Vohlands lied to them about the extent of their remediation efforts.  (Id.)  The mold infestation also caused the Property to become a construction site as the entire kitchen was torn out and completely unusable.  By mid-December 2023, when the Vohlands could not provide an end-date for when the remediation would be completed, Plaintiffs had no choice but to leave the Property and seek alternative housing.  (Id. ¶ 24.)   

After some remediation work had been completed at the Property, the Vohlands claimed they had obtained a mold report that showed that the Property was no longer contaminated. Plaintiffs allege this was false.  Plaintiffs requested a copy of the report, but the Vohlands refused to provide it.  Plaintiffs then paid out of pocket again for another mold test, which showed the Property remained unsafe and uninhabitable.  As a result, Plaintiffs vacated the Property for good.  (Id. ¶ 25.) 

Upon vacating the Property, Plaintiffs were left with no choice but to dispose of many of their personal belongings to avoid risk of subsequent contamination. This included irreplaceable sentimental items, as well as costly items such as furniture that would need to be replaced.  (Id. ¶ 26.)   

Throughout this period, the Vohlands did not return Plaintiffs’ rent (despite repeated requests) or provide any suitable alternative accommodations.  As a result, the family was forced to pay double rent and spend the holidays without a stable home.  (Id. ¶ 27.)  The Vohlands also failed to timely return Plaintiffs’ $26,000 security deposit within the statutory 21-day deadline. When the Vohlands did eventually return the security deposit—well after the statutory deadline and following repeated demands from Plaintiffs’ counsel—they improperly withheld $3,900 for “unpaid rent” during the period the Property was uninhabitable because of mold contamination and the remediation efforts.  (Id. ¶¶ 28, 29.)   

As a result of exposure to mold contamination, all family members except Gavin Behrman contracted mold poisoning. The only reason Mr. Behrman did not contract mold poisoning was because he was working in Atlanta at the time and was not living at the Property.  (Id. ¶ 31.)  Unfortunately, the effects of the mold exposure are ongoing. The family’s blood tests have revealed elevated levels of mycotoxins and their treating physicians have expressed concerns that the mold poisoning could cause longstanding health issues, including lasting damage to their respiratory systems. (Id. ¶ 33.)  In addition to the thousands of dollars in medical expenses that the family has incurred as a result, Plaintiffs are also suffering from ongoing anxiety and stress as a result of this ordeal.  (Id. ¶ 34.)   

On December 20, 2023, Defendants executed two deeds, first transferring ownership of the Property, to Ace Crow Real Estate LLC (“Ace”), a Wyoming limited liability company, and thereafter to Acre CA, LLC (“Acre”), a California limited liability company.  Plaintiff alleges these deeds were recorded with the specific intention of shielding the Vohlands’ assets from liability.  (Id. ¶ 41.)   

As a result of these events, Plaintiffs filed the instant lawsuit.  The operative (first amended) complaint alleges claims for (1) Negligence; (2) Breach of Implied Warranty of Habitability; (3) Nuisance; (4) Breach of Implied Covenant of Peaceful and Quiet Enjoyment; (5) Constructive Eviction; (6) Violation of Cal. Civ. Code § 1950.5; and (7) Intentional Infliction of Emotional Distress (“IIED”).   

This hearing is on Defendants Ace, Acre and Mrs. Vohland’s demurrer and/or motion to strike.  Ace argues that the only basis for the Complaint against it is that the Vohlands purportedly executed a deed transferring ownership of the Property to Ace, as a means of shielding themselves from a possible lawsuit by Plaintiffs.  However, based on judicially noticeable facts, the transfer actually took place before Plaintiffs even entered into the Lease with the Vohlands.  Defendants Ace, Acre and Mrs. Vohland demurrer to the IIED claim, arguing that the allegations constitute an “ordinary landlord-tenant dispute,” not extreme and outrageous conduct beyond the bounds of human decency.  All Defendants move to strike the prayers for punitive damages and attorneys fees because they claim these remedies are not supported by sufficiently detailed factual allegations.  They also move to strike allegations of culpability based on transfer of ownership of the Property among Defendants because they are contradicted by judicially noticeable facts.   

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.)  

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 Nathaniel P. Cade which attests the parties met and conferred by telephone on December 27, 2024, more than five days before Defendants filed their demurrer and motion to strike on January 2, 2025.  This satisfies the meet and confer requirements of Code Civ. Proc. §§430.41 and 435.5. 

REQUEST FOR JUDICIAL NOTICE 

Defendants request judicial notice of (1) Grant Deed dated March 8, 2023, transferring title of the property located at 3517 Shoreheights Drive, Malibu, CA 90265, from Marion Gary Vohland and Cindy Vohland, Trustees of the 2010 Marion Gary Vohland and Cindy Vohland Revocable Trust dated September 5, 2010, to Ace Crow Real Estate, LLC a Wyoming Limited Liability Company, recorded in the Official Records of Los Angeles County as Document No. 20230895465 (Attachment 1 to Request for Judicial Notice (“RJN”)); (2) Grant Deed dated March 8, 2023, transferring title of the property located at 3517 Shoreheights Drive, Malibu, CA 90265, from Ace Crow Real Estate, LLC a Wyoming Limited Liability Company to Acre CA, LLC, a California Limited Liability Company, recorded in the Official Records of Los Angeles County as Document No. 20230895466 (Attachment 2 to RJN); (3) the decision of the Orange County Superior Court issued September 7, 2022, in Case No. 37 2021-00031280-CU-TT-NC in Mason v. Lund, retrieved via LexisNexis at 2022 Cal. Super. LEXIS 58761 (Attachment 3 to RJN); (4) the decision of the Los Angeles County Superior Court issued March 9, 2022, in Case No. 21STCV40235 in Rivera v. Johnson, retrieved via LexisNexis at 2022 Cal. Super. LEXIS 7718 (Attachment 4 to RJN); (5) the decision of the Sacramento County Superior Court issued September 28, 2021, in Case No. 34-2020-00290472-CU-OR-GDS in Gruver v. Ih2 Prop. W, retrieved via LexisNexis at 2021 Cal. Super. LEXIS 105245 (Attachment 5 to RJN.)  

The Court grants the request as to the deeds (Attachments 1 and 2 to RJN).  ¿It is well established that a court may take¿judicial notice¿of recorded¿deeds, which evidence official acts of an executive agency. (Evans v. California Trailer Court, Inc.¿(1994) 28 Cal.App.4th 540, 549, 33 Cal. Rptr. 2d 646.)  The deeds also constitute records not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy and are therefore the proper subjects for judicial notice under Evid. Code § 452(h).   

The court denies the request as to the unpublished superior court decisions in Attachment Nos. 3, 4, and 5 to RJN.  Rules of Court, rule 8.115(b) prohibits citing and relying on unpublished decisions. Also, “[a] written trial court ruling in another case has no precedential value.” (Budrow v. Dave & Buster's of California¿(2009) 171 Cal.App.4th 875, 885.)  Further, parties need not request judicial notice of court opinions; if relevant and appropriate, they may simply be cited in the memorandum of points and authorities. 

DISCUSSION 

Claims Against Ace 

Ace demurrers to the Complaint because the only allegation against it involves a transfer of the Property from the Vohlands to Ace, which Plaintiffs claim was intended to shield the Vohlands’ assets from collection in the case of judgment against the Vohlands in this lawsuit, but the transfer, based on judicially noticeable records, took place more than six months before Plaintiffs entered into the Lease with the Vohlands.  The Court agrees.     

The sole specific allegation against Ace is found in paragraph 41 of the FAC which alleges: “Defendants have also shown clear knowledge of their culpability and wrongfulness. On December 20, 2023, Defendants executed two deeds, first transferring ownership of the Property, to Ace Crow, a Wyoming limited liability company, and thereafter to Acre CA, a California limited liability company. On information and belief, these deeds were recorded with the specific intention of shielding the Vohlands’ assets from the Behrmans.”  However, contrary to the allegations in paragraph 41 and based on a judicially noticeable grant deed (Attachment 1 to RJN), the transfer actually took place in March 2023, more than six months before Plaintiffs allegedly entered the Lease with the Vohlands, in September 2023.  (FAC ¶ 17.)   

Plaintiffs argue that the deeds may have been signed six months ago, but were not recorded until after the Vohlands’ escalating conflict with Plaintiffs.  Indeed, the lease was entered into between Plaintiffs and the Vohlands, and not Ace.  Plaintiffs further argue that assuming the transfer took place six months before the lease was entered into, Ace was the recorded owner of the Property at the time of the subject incident.  Without considering whether these allegations would sustain a claim against Ace, neither is alleged in the complaint and, accordingly, they cannot overcome a demurrer.  As a result, the Court sustains Ace’s demurrer with 20 days’ leave to amend. 

IIED Claim 

           Defendants demurrer to the IIED claim because they argue Plaintiffs have not alleged extreme and outrageous conduct but instead concede the Vohlands attempted to remedy the mold exposure, and any claims about the inadequacy of their remediation efforts constitute negligence at best, not intentional wrongdoing.  The Court disagrees in part.     

“To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.)   

A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) The seminal case on IIED and uninhabitability is Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, in which the court held that plaintiff's allegations were sufficient to plead a cause of action for IIED in addition to a breach of the warranty of habitability.  

The plaintiff in Stoiber alleged there were numerous defective and dangerous conditions in their unit, including, but not limited to “leaking of sewage from the bathroom plumbing; defective and dangerous electrical wiring; structural weaknesses in the walls; deteriorated flooring; falling ceiling; leaking roof; dilapidated doors; broken windows; and other unsafe and dangerous conditions. These defective conditions were unknown to plaintiff at the time she moved into the premises, but as she continued to live on the premises, she became increasingly aware of them."  (Id. at 912).  The plaintiff also alleged that “the defendants’ failure to correct the defective conditions was knowing, intentional and willful, and that she suffered extreme emotional distress resulting from the condition of the premises.” (Id. at 913).  The Stoiber court found that these allegations present a “factual question”, and it cannot be said as a matter of law that the plaintiff has not stated a cause of action for IIED.  (Id. at 922).   

More recently, the court in Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069, concluded that landlord’s refusal to remediate mold exposure could constitute extreme and outrageous conduct.  There, the plaintiffs “immediately and repeatedly notified” the defendants of this “dangerous condition” and requested that it “be repaired.”  The defendants refused to repair it.  The plaintiffs, consequently, “inhale[d] the toxic airborne spores and fumes emitted from the mold,” sustaining “severe physical injury and discomfort, and severe emotional and mental distress.” Furthermore, their “business inventory and belongings” became “contaminated by toxic mold and airborne mold spores,” requiring “immediate and extensive cleaning and/or disposal … .”  (Id. at 1062.) 

Defendants argue Burnett is inapposite because the FAC alleges the Volhands attempted to remediate the mold issues, although Plaintiffs claim their efforts were negligent and inadequate.  Defendants read the Complaint too narrowly.  First, Plaintiffs allege that Defendants actually knew of the mold issues before even renting the Property to Plaintiffs.  When Plaintiffs complained of the mold, the Volhands said the Property “will always have mold.”  (FAC ¶ 22.)  Second, instead of paying for a mold test after being notified of possible mold issues, the Volhands’ property manager directed Plaintiff to a mold testing company, and Plaintiffs had to pay for the test out of pocket.  (Id. ¶ 21.)  Third, while the Volhands eventually began remediating the Property, they allegedly lied about the extent of their remediation efforts.  They told Plaintiffs that a test showed the Property was now safe, when in fact (at least according to Plaintiffs) that was not true.  Plaintiffs requested a copy of the report, and the Volhands refused to provide it.  (Id. ¶ 25.)  Plaintiffs then paid out of pocket for another mold test, which showed the Property continued to be uninhabitable and unsafe, contrary to the Volhands’ claim.  (Id.)  Fourth, even though the Property was uninhabitable because of the mold issue and the construction to remediate the problem, the Volhands insisted on collecting rent and did not provide Plaintiffs with alternative housing.  (Id. ¶¶ 28-29.)  On these facts, the Court cannot conclude as a matter of law that the Volhands’ conduct was not extreme or outrageous, and accordingly the Court overrules the demurrer to the IIED claim against the Volhands.   

However, as to Ace and Acre, the only allegation against them is that they engaged in a fraudulent transfer.  But based on judicially noticeable facts, the transfer to Ace and Acre took place in March 2023 (Attachments 1-2 to RJN), well before Plaintiffs entered into the Lease in September 2023.  Accordingly, there can be no extreme and outrageous conduct on the part of Ace and Acre, and the Court therefore sustains the demurrer to the IIED claim against them, with 20 days’ leave to amend.      

Punitive Damages 

Defendants argue that Plaintiffs have failed to allege malice, oppression or fraud.  According to Defendants, Plaintiffs “merely allege that the Defendants were aware of the defective condition and that such condition could cause damage and that Defendants failed to remediate.”  (Motion at 6:26-28.)  The Court disagrees in part.  

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).)   

Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)     

Cal. Civ. Code section 3294 provides the basis upon which punitive damages can be recovered.  Punitive damages may only be sought where there is clear and convincing evidence that the defendant has been guilty of malice, oppression or fraud: 

(c)(1) “Malice” means conduct which is intended to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 

(c)(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(c)(3) “Fraud” means an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise 

causing injury.  

(Civ. Code §3294.) 

Section 3294 was amended in 1987 to increase the burden of proof required in order to allege a punitive damages claim as well as to raise the level of misconduct necessary for an award of punitive damages.  The California Supreme Court has ruled that the insertion of the word “despicable” in section 3294 created a “new substantive limitation on punitive damage awards.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “Despicable” means conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)  “Such conduct has been described as having the character of outrage frequently associated with [a] crime.”  (Id.) 

Punitive damages are disfavored by public policy and are allowed only under the most extreme circumstances and in the “clearest of cases.”  (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9.)  “To contain the generosity and emotionality of juries, appellate courts have set the threshold high in defining situations in which punitive damages can be given.  Conduct which may be characterized as unreasonable, negligent, grossly negligent or reckless does not satisfy the highly culpable state of mind warranting punitive damages.  Conduct which warrants punitive damages must be of such severity or shocking character [as] warrants the same treatment as accorded willful misconduct – conduct in which defendant intends to cause harm.”  (Id. at 10 (internal quotations and citations omitted).) 

Here, Plaintiffs have alleged sufficient facts to show malice, oppression or fraud on the part of the Volhands.  Based on the FAC, the Volhands rented the Property, knowing it had mold.  And when confronted with the mold issues, they did not test the Property, but shifted the responsibility to Plaintiffs to test.  When the results came back showing the Property was unsafe, they begrudgingly began remediation efforts, but then lied about the extent of their repairs and claimed a report showed the mold issues were resolved, when in fact there was no such report.  On these facts, a reasonable fact finder could conclude there was malice, oppression or fraud.  Accordingly, the Court denies the motion to strike the punitive damages claim against the Volhands.   

However, as to Ace and Acre, the only allegation against them is that they engaged in a fraudulent transfer.  But that allegation is contradicted by judicially noticeable facts.  Based on grant deeds which the Court has judicially noticed (Attachments 1-2 to RJN), the transfer to Ace and Acre took place in March 2023, well before Plaintiffs entered into the Lease in September 2023.  Accordingly, there can be no malice, oppression or fraud on the part of Ace and Acre, and the Court therefore grants the motion to strike the punitive damages claim against them.   

Attorneys’ Fees 

Defendants argue that Plaintiffs’ prayer for attorneys’ fees should be stricken because Plaintiffs have not identified any contract or statute that entitles them to such fees.  The Court agrees. 

 “Attorney fees are not recoverable as costs unless a statute or contract expressly authorizes them.”  (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 604.) Generally speaking, each party to a lawsuit must pay his or her own attorney's fees unless a statute or contract provides otherwise. (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966 [134 Cal. Rptr. 3d 39].) “Where a contract specifically provides for an award of attorney fees, Civil Code section 1717 allows recovery of attorney fees by whichever contracting party prevails, regardless of whether the contract specifies that party.” (Id.) 

In pertinent part, subdivision (a) of Civil Code section 1717 provides, “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” 

Here, Plaintiffs have not attached a copy of the Lease, and accordingly, the Court cannot conclude whether Plaintiffs would be entitled to attorneys’ fees as a matter of contract.  Moreover, while certain statutes may conceivably allow for recovery of attorneys’ fees under the facts of this case, the FAC does not cite to any statute authorizing the award of attorneys’ fees.  Accordingly, the Court grants the motion to strike the prayer for attorneys’ fees, with 20 days’ leave to amend.   

Allegation re Fraudulent Transfer 

Defendants also move to strike paragraph 41 of the FAC.  Paragraph 41 of the FAC alleges that “on December 20, 2023, Defendants executed two deeds, first transferring ownership of the Property, to Ace Crow, a Wyoming limited liability company, and thereafter to Acre CA, a California limited liability company. On information and belief, these deeds were recorded with the specific intention of shielding the Vohlands’ assets from the Behrmans.”  As discussed extensively throughout this Order, this allegation is contradicted by judicially noticeable grant deeds.  Accordingly, the Court grants the motion to strike the allegation without leave to amend. 

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART the demurrer with 20 days’ leave to amend and DENIES IN PART and GRANTS IN PART the motion to strike, also with 20 days’ leave to amend except as to the allegation in Paragraph 41 which is stricken without leave to amend.   

 

IT IS SO ORDERED. 

 

DATED:  January 29, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court