Judge: Elaine Lu, Case: 21STCV07487, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV07487    Hearing Date: July 27, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On February 25, 2021, Plaintiffs Maria Lopez, Oscar Lopez, Jazmin Lopez, Oscar Lopez Jr. and C. Lopez by and through his guardian at litem Maria Lopez (collectively “Plaintiffs”) filed the instant wrongful eviction action against Defendants Shahriar Moradian and 4-1 Street Properties, LLC (jointly “Defendants”). 

On September 17, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants.  The FAC asserts seven causes of action for (1) Breach of the Implied Warranty of Habitability, (2) Tortious Breach of the Warranty of Habitability, (3) Negligence, (4) Breach of Quiet Enjoyment, (5) Violation of Civil Code section 1942.5, (6) Nuisance, and (7) Violation of Business & Professions Code section 17200.  

On February 14, 2022, Defendants filed the instant demurrer to and motion to strike portions of the complaint.  On July 14, 2022, Plaintiffs filed an opposition to the demurrer and motion to strike.  On July 20, 2022, Defendants filed replies to both oppositions.

Allegations of the Operative Complaint

The FAC alleges the following:

Plaintiffs Maria Lopez and Oscar Lopez entered into a month-to-month rental agreement with Defendants beginning on February 1, 2010 to rent out Unit #103 of 1138 Magnolia Avenue, Los Angeles, CA, 90006 (“Rental Unit”) for $1,250 per month.  (FAC ¶¶ 1, 13.)  Plaintiffs Maria Lopez and Oscar Lopez’s children Jazmin Lopez, Oscar Lopez Jr., and C. Lopez moved into the building with Plaintiffs Maria Lopez and Oscar Lopez as ratified by Defendants.  (FAC ¶ 14.)  Upon moving into the Rental Unit, Plaintiffs “discovered cockroaches in their unit and continuously lived with an ongoing cockroach infestation throughout the entire term of their tenancy that was not remediated by Defendants in spite of repeated notice from Plaintiffs.”  (FAC ¶ 15.) 

“In late 2018, a severe rodent infestation developed in the Rental Unit and continued through the remainder of Plaintiffs’ tenancy. The rodents could be heard inside the walls of the Rental Unit and could be seen in the Rental Unit. Plaintiffs frequently found feces and bitten food packages the rodents left behind.”  (FAC ¶ 16.)  This rodent infestation also caused a severe flea infestation in the Rental Unit.  (FAC ¶ 17.)  Plaintiffs notified Defendants of the rodent and flea infestations but the request for repairs was ignored.  (FAC ¶¶ 18-19.)

“As a result, in 2018 and 2019, Plaintiffs complained to the Los Angeles City Housing and Community Investment Department and County Health Department and an inspector inspected the Rental Unit. Defendants then made a superficial effort to patch up holes in the Rental Unit; however, by then, the rodent and flea infestation was so severe that Defendants’ superficial efforts were ineffective and the rodent and flea infestation continued.”  (FAC ¶ 19.) 

“Plaintiffs also experienced other problems in the Rental Unit, including, but not limited to leaks and plumbing issues as well as trash in the building common areas.”  (FAC ¶ 20.) 

“Defendants responded to Plaintiffs’ complaints and exercise of their rights as tenants by retaliating against them. Defendants and Defendants’ agents threatened Plaintiffs with eviction and fabricated allegations about Plaintiffs in order to try to evict them.”  (FAC ¶ 21.)  In September 2019, Defendants filed an eviction action against Plaintiffs which was ultimately dismissed when Plaintiffs refused to move and contested the eviction action.  (FAC ¶ 21.) 

However, “[d]ue to the severe rodent and flea infestation that continued through the remainder [of] their tenancy, as well as the continued harassment and retaliation Plaintiffs experienced from Defendants and Defendants’ agents, Plaintiffs were forced to vacate the Rental Unit on or around March 15, 2020.”  (FAC ¶ 22.)

Requests for Judicial Notice

            In their moving papers, Defendants request that the Court take judicial notice of the following:

A.    Amended Declaration of Barry E. Cohen Re: Meet and Confer filed in this case on December 17, 2021

B.     Elmer Acevedo’s Criminal Case Summary as found on the Los Angeles Superior Court’s website

C.     Letter by the Los Angeles City Attorney’s Office dated June 27, 2019 and addressed to Defendant, and an email from the City Attorney dated September 26, 2019

D.    Los Angeles Police Department Arrest Reports for Elmer Acevedo and Henri Mendez

E.     Excerpts of a Los Angeles Housing and Community Investment Department Notice and Order to Comply dated September 16, 2019

F.      Los Angeles Housing Department Code Enforcement Division Property Activity Report for Case Number 737471

G.    Los Angeles Housing Department document relating to complaint case no. 737471

As the Court may take judicial notice of Court records, (See Evid. Code, § 452(c)(d)), Defendants’ requests for judicial notice (“RJN”) A and B are GRANTED.  However, the Court does not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Documents E, F, and G constitute “‘[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,’ of which judicial notice may be taken.”  (LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783.)  Accordingly, Defendants’ RJNs E, F, and G are GRANTED.  Again, the Court does not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

As to Request C, the request includes an official letter from the City Attorney’s Office and an email exchange with a Deputy City Attorney.  While the Court may take judicial notice of the official letter to Defendants, the email exchange between government officials and counsel for a party does not constitute an “‘[o]fficial act[] of the legislative, executive, and judicial departments of the United States and of any state of the United States,’ of which judicial notice may be taken.”  (LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783.)  Accordingly, the request for judicial notice of the email attached to RJN C is DENIED, and the request for judicial notice of the June 27, 2019 letter attached to RJN C is GRANTED.  However, the Court does not take judicial notice of the truth of assertions within. (See Herrera, supra, 196 Cal.App.4th at p.1375.)

As to Request D, neither police reports nor statements contained in such reports are subject to judicial notice. (See People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17 [“we decline to take judicial notice of the truth or accuracy of an entry in a police report, because such a report is reasonably subject to dispute”] disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1345, fn. 1 [“it would have been improper for the court to take judicial notice of the police report and, a fortiori, its attachments”].)  Accordingly, Defendants’ request for judicial notice of RJN Exh. D is DENIED.

Legal Standard

Demurrer Standard 

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. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  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 pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Motion to Strike Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.).  (See CCP §§ 435-437.)  A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended.  (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice.  (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)  There is a similar meet and confer requirement for motions to strike.  (CCP § 435.5.)

Defendant has fulfilled the meet and confer requirement.  (Ganchrow Decl. ¶ 2, Exh. A.)

Discussion – Demurrer  

Fifth Cause of Action: Violation of Civil Code section 1942.5

            “Civil Code section 1942.5 makes it unlawful for a landlord to engage in specified conduct against a tenant who is not in default on rent, including ‘bring[ing] an action to recover possession,’ because of a tenant's lawful and peaceable exercise of any rights under the law (id., subd. (d) ) or because of a tenant's complaints regarding habitability (id., subd. (a) ).”  (Coyne v. De Leo (2018) 26 Cal.App.5th 801, 805.) 

            Defendants contend that the fifth cause of action for retaliation in violation of Civil Code section 1942.5 fails because (1) Plaintiffs fail to allege that the retaliation took place within 180 days after Plaintiffs’ complaints and (2) under the judicially noticed documents, Defendants did not retaliate against Plaintiffs.

Failure to Allege Retaliation within 180 Days of Making a Complaint

Civil Code section 1942.5(a) provides that “[i]f the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following: [¶] (1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability. [¶] (2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability. [¶] (3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.”  (Id.) 

However, “[n]otwithstanding subdivision (a), it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor's conduct was, in fact, retaliatory.”  (Civ. Code, § 1942.5(d).)

Here, Defendants contend that the fifth cause of action fails because there is no allegation that Defendants retaliated against Plaintiffs within 180 days of making a complaint to the Los Angeles City Housing and Community Investment Department and County Health Department.  This contention is without merit.  Section 1942.5(a), upon which Defendants rely restricts actions that a landlord/lessor may take against a tenant within 180 days of the tenant/lessee taking certain protected activity.  Section 1942.5(a) does not govern or restrict the tenant’s ability to bring an action against her landlord/lessor.  Section 1942.5(d) sets forth the unlawful activities for which a tenant/lessee may bring an action to recover damages against her landlord/lessor.  Notably, section 1942.5(d) does not carry any 180-day or other time restriction.  Instead, the only requirement set forth in section 1942.5(d) is that it is the lessee’s burden  to produce evidence demonstrating that the lessor’s conduct was in fact retaliatory.  A tenant/lessee may bring a claim under section 1942.5(d) where the tenant/lessee has “peaceably exercised any rights under the law.”  Making a complaint regarding a flea and rodent infestation would fall under section 1942.5.  Accordingly, Plaintiffs state a claim under section 1942.5(d).

Defendants’ demurrer to the fifth cause of action for Plaintiffs failure to allege retaliation within 180 days of making complaints is overruled.

The Judicially Noticed Record Does Not Show that Retaliation Did Not Occur

            The Court’s rulings on Defendants’ requests for judicial notice reflect that the Court will take judicial notice of some, but not all, of the documents requested.  Of the judicially noticed documents, the June 27, 2019 letter indicates only that there was criminal nuisance at 1138 S. Magnolia Avenue, where the subject property is located and that the City Attorney’s Office wished to meet with Defendants to discuss and address the nuisance activity.  (RJN Exh. C.)  Nothing in any of the judicially noticed documents indicates that the nuisance necessarily occurred at Plaintiffs unit or that Defendants moved to evict Plaintiffs in September of 2019 due to this nuisance. 

            Accordingly, Defendants’ demurrer to the fifth cause of action is OVERRULED.

Discussion – Motion to Strike

Defendants move to strike the prayer for punitive damages and allegations referencing punitive damages. 

Punitive Damages

California Civil Code section 3294, subdivision (a), provides: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”  “‘Malice’ means conduct which is intended by the defendant 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.” (Id. at (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. at (c)(2).) “‘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.” (Id. at (c)(3).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

Moreover, a demand for punitive damages for the commission of any tort requires more than the mere conclusory allegations of “oppression, fraud, and malice.”  (Civ. Code § 3294; see Perkins v. Superior Court (1981) 117 Cal. App.3d 1, 6-7.)

Here, the FAC alleges a claim for nuisance, which may serve as the basis for punitive damages.  (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 [“A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable”.].)  Further, the FAC alleges that Plaintiffs repeatedly informed Defendants of the condition of the Rental Unit (including the flea and rodent infestations) and that Defendants ignored the complaints and did nothing to remediate the situation.  (FAC ¶¶ 18-19.)  The FAC further alleges that the infestations have caused Plaintiffs bodily injury, property damage, and emotional distress.  (FAC ¶¶ 26, 28, 44.)  Moreover, the FAC alleges that the failure to remediate the infestations was intentional.  (FAC ¶¶ 44-45, 50, 66.)  These allegations are more than mere conclusory allegations of “oppression, fraud, and malice.”  (Perkins, supra, 117 Cal. App.3d at pp.6-7.) 

Accordingly, Defendants’ motion to strike the prayer and allegations for punitive damages is DENIED.

CONCLUSION AND ORDER

Based on the forgoing, Defendants Shahriar Moradian and 4-1 Street Properties, LLC’s demurrer is OVERRULED.

Defendants’ motion to strike is DENIED.

Defendants are to file an answer within fifteen (15) days’ notice of this order.

The case management conference is continued to August 25, 2022 at 8:30 am.

Moving Parties are to provide notice of this order to all parties and file proof of service of such.

DATED: July 27, 2022                                                           ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court