Judge: Elaine Lu, Case: 22STCV12743, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV12743    Hearing Date: January 26, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On April 15, 2022, Plaintiff Mahin Mollarabi (“Plaintiff”) filed the instant wrongful eviction action against Defendants Abjad Inc., LLC, Ira Afari, and Sid Afari (collectively “Defendants”).  The complaint asserts causes of action for (1) Breach of Written Agreement, (2) Breach of the Covenant of Quiet Enjoyment, (3) Violation of Civ. Code §§ 1941, 1941.1, and 1942.4, (4) Willful Interruption of Services - Violation of Civ. Code § 789.3, (5) Intentional Infliction of Emotional Distress, (6) Negligent Infliction of Emotional Distress, (7) Private Nuisance, (8) Intentional Misrepresentation, (9) Negligent Misrepresentation, (10) Unlawful Actions by Landlord to Influence Tenant to Vacate, (11) Negligence, (12) Violation of Unfair Competition Law (Bus. & Prof. Code § 17200, et seq.), and (13) Constructive and Retaliatory Eviction.

            On October 13, 2022, Defendants filed the instant demurrer and motion to strike portions of the complaint.  On January 23, 2023, Plaintiff filed an opposition.  On January 25, 2023, Defendants filed a reply objecting to the untimely opposition.

Allegations of the Operative Complaint

            The complaint alleges that:

            Defendants owned, managed, operated, and controlled an apartment complex at 5130 Yarmouth Avenue, Apartment 35, Encino, CA 91316 (“Building”).  (Complaint ¶¶ 1, 5-7.)

            On February 1, 1996. Plaintiff entered into a lease agreement to rent an apartment in the Building with Defendants.  (Complaint ¶ 23.)  When the parties entered into the lease agreement rent was $600, which is now currently at $1,161.  (Id. ¶ 25.)  Plaintiff was an excellent tenant who paid her rent on time and was not subject to any complaints by Defendants.  (Id. ¶ 28.)

            On March 1, 2022, a fire started in one of the other units at the Building affecting the whole building and resulting in Plaintiff going to the hospital to be treated for smoke inhalation.  (Id. ¶¶ 32-34.) The fire was either started by an illegal drug lab in one of the other units or due to the Building’s defective and hazardous electrical system.  (Id. ¶¶ 35, 37.)

            Defendants were aware of the illegal drug lab in the Building due to multiple complaints, but Defendants failed to take any actions to abate the illegal drug lab.  (Id. ¶ 36.)  Defendants were also aware of the defective electrical system and were the cause of the defective electrical system.  (Id. ¶¶ 29, 38.)  Moreover, there was no fire extinguisher for the building.  (Id. ¶ 41.)

            Following the fire, Plaintiff was ejected from the Premises.  (Id. ¶ 42.)  “Defendants failed to submit or obtain a Tenant Habitability Plan as mandated by the City of Los Angeles prior to remediating the Premises for the smoke damage.”  (Id. ¶ 43.)  The Tenant Habitability Plan “requires that Defendant locate[] and obtain a comparable unit for a tenant to occupy until the uninhabitable unit is remedied. Defendants failed to do so. Instead, in or about late March 2022, Defendants demanded that Plaintiff relocate to another, smaller unit[.]”  (Id. ¶ 47.)  “From in or about March 1, 2022, to March 29, 2022, Defendants failed to take an action to correct the issues at the Building, restore possession of the Premises to Plaintiff, or otherwise mitigate damages.”  (Id. ¶ 50.)  “On April 13, 2022, Defendants served an illegal and unlawful three-day eviction notice.”  (Id. ¶ 55.)  This eviction notice was served in retaliation for Plaintiff retaining counsel and demanding that Defendants comply with the Rent Stabilization Ordinance.  (Id. ¶ 56.) 

Untimely Opposition and Reply Papers

            “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  (Code Civ. Proc., § 1005(b).)  This is calculated by counting backwards from the hearing date and excluding holidays and weekends.  (Code Civ. Proc. §§ 12-12(c).)  The court may refuse to consider a late-filed paper.  (Cal. Rules of Court, Rule 3.1300(d).) 

            Here, the opposition was filed on January 23, 2023 – a mere two court days before the instant hearing.  Accordingly, the opposition is untimely.  Similarly, the reply was filed on January 25, 2025 – a single court day before the instant hearing.  Accordingly, the Court will not consider either the untimely opposition or the untimely reply. 

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 “give the complaint a reasonable interpretation, and read it in context.”  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)  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.)

Here, Defendants have fulfilled the meet and confer requirements.  (Bowen Decl. ¶¶ 3-6, Exh. A.)[1]

Discussion – Demurrer

            By way of the instant motion, Defendants demurrer to the fifth and eighth causes of action for Intentional Infliction of Emotional Distress and Intentional Misrepresentation respectively.

Fifth Cause of Action: Intentional Infliction of Emotional Distress

Defendants contend that the fifth cause of action for intentional infliction of emotional distress fails because the complaint fails to allege sufficiently outrageous conduct.

            “A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.)   With regard to the first element, intentional infliction of emotional distress “calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.) 

For “[c]onduct to be outrageous[, it] must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)  “[W]hether conduct is outrageous is ‘usually a question of fact’ … [however] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, [internal citations omitted].)  “‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1122, superseded by statute on other grounds as noted in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, Fn. 19 [internal citation omitted].)  “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.”  (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) 

Here, the complaint alleges – in relevant part – that Plaintiffs suffered severe mental and emotional distress because Defendants “acted in an unconscionable and outrageous manner by intentionally ignoring and failing to keep the Premises clean, sanitary, and free from accumulations of debris, filth, rubbish, and garbage, and by violating health and safety codes, ordinances, regulations, and other laws.”  (Complaint ¶¶ 128, 132.)  The complaint further alleges that the Premises was covered in black smoke due to the fire to the Building.  (Id. ¶ 52.)  Further, Defendants “fail[ed] to keep the units free and clear of mold and mildew growth, failing to provide effective waterproofing and weather protection, failure to maintain floors, stairways, and railings in good repair, failure to maintain electrical lighting and wiring that conformed to applicable law, failure to provide adequate heat, failing to comply with City notices and orders to comply[.]”  (Id. ¶ 82, 127.)   

On the pleadings, Plaintiff have alleged the requisite emotional distress required for a claim for intentional infliction of emotional distress.  (Fletcher, supra, 10 Cal.App.3d at p.397.)  Moreover, the complaint alleges that “Defendants knew of the Premises’ untenantable state, yet refused to abate the Premises issues further described above.”  (Id. ¶ 129.)  In addition, “Defendants knew that their conduct would result in Plaintiff suffering from severe emotional distress.”  (Id. ¶ 130.)  Thus, as alleged, Defendants were aware of the unhabitable condition and that their conduct would result in Plaintiff suffering severe emotional distress.  Moreover, the Complaint alleges that Defendants were in a position of power over Plaintiffs – i.e., Plaintiffs’ landlord – and abused this position.  (Id. ¶ 128; Molko, supra, 46 Cal.3d at p.1122.)

The conduct alleged is more than mere insulting language.  (See e.g., Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 disapproved of on other grounds by White v. Ultramar, Inc. (1999) 21 Cal.4th 563.)  Defendants fail to cite any authority indicating that as a matter of law the alleged conduct is insufficient to constitute outrageous conduct.  Moreover, “the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress. Whether this is so under the present allegations, presents a factual question—it cannot be said as a matter of law that appellant has not stated a cause of action.”  (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922.)

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

Eighth Cause of Action: Intentional Misrepresentation

            Defendants assert that the eighth cause of action is not sufficiently pled with the required specificity.

            “The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity.  [Citation.]  General and conclusory allegations are insufficient.  [Citation.]  The particularity requirement demands that a plaintiff plead facts which ‘‘‘show how, when, where, to whom, and by what means the representations were tendered.’’’  [Citation.]”  (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  Moreover, “each element must be pleaded with specificity.  [Citations.]”  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166 disapproved of on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905.)

            Here, the Complaint alleges that “Owner made the numerous false and misleading statements identified throughout the Complaint.”  (Complaint ¶ 149.)  Further, “Defendants intentionally and deceitfully concealed said issues to Plaintiff and made other misrepresentations as outlined above.”  (Id. ¶ 154.)  However, the complaint is devoid of any allegation as to any misrepresentation at all.  Nor does the complaint allege what exactly Defendants concealed.  There is no allegation of which agent of Defendants made misrepresentations to Plaintiffs, when or where such misrepresentations took place, how the misrepresentations were made, or by what means such misrepresentations were made.  Moreover, without such specific facts, it is unclear how Plaintiff could have reasonably relied on such statements. 

Accordingly, Defendants’ demurrer to the eight cause of action is sustained on this ground.

Discussion – Motion to Strike

            Defendants move to strike the prayer for punitive damages.

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code, § 3294(a).) “‘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, 894-895.)

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.)  Rather, “[t]here must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of Defendant, or such a conscious and deliberate disregard of the interest of others that its conduct may be called willful or wanton.” (Taylor, supra, 24 Cal.3d at pp.894-895, [italics added].)

Here, the complaint sufficiently states a basis for oppression and/or malice. For example, the complaint alleges that Defendant were aware of electrical hazards in the building and an illegal drug lab in one of the units.  (Complaint ¶¶ 29, 36-38.) Instead of taking corrective actions, Defendants refused to take any action, which resulted in a fire to the Building.  (Id. ¶¶ 36-38.)  After the fire, Defendants then served an eviction notice on Plaintiff for retaining counsel and demanding that Defendants comply with the Rent Stabilization Ordinance.  (Id. ¶ 56.)  In addition, “Defendants knew of the Premises’ untenantable state, yet refused to abate the Premises issues further described above.”  (Id. ¶ 129.)  Further, “Defendants knew that their conduct would result in Plaintiff suffering from severe emotional distress.”  (Id. ¶ 130.) 

These allegations are sufficient to support a prayer for punitive damages.  These allegations are more than mere conclusory allegations of “oppression, fraud, and malice.” (Perkins, supra, 117 Cal. App.3d at pp.6-7.)  The complaint sufficiently alleges clear, specific facts to support the prayer for punitive damages.
            Accordingly, Defendants’ motion to strike the prayer for punitive damages is DENIED.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

In light of the complete absence of factual allegations as to the claim for fraud, it is unclear whether Plaintiff can successfully amend the complaint.  However, this is the first time that a complaint has been sustained against Plaintiff’s complaint. Therefore, the court finds it is proper to allow Plaintiff an opportunity to cure the defects discussed in this order. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)   

CONCLUSION AND ORDER

Based on the foregoing, Defendants Abjad Inc., LLC, Ira Afaria, and Sid Afari’s demurrer is SUSTAINED IN PART as to the eighth cause of action WITH LEAVE TO AMEND.  Defendants’ demurrer is otherwise OVERRULED.

Defendants’ motion to strike is DENIED.

Plaintiff is to file an amended complaint within twenty (20) days of notice of this order.

The case management conference is continued to April 4, 2023 at 8:30 am.

Moving Parties are ordered to give notice and file proof of service of such.

DATED:  January 26, 2023                                                    ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court