Judge: Elaine Lu, Case: 22STCV29232, Date: 2023-04-10 Tentative Ruling

Case Number: 22STCV29232    Hearing Date: April 10, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 8, 2022, Plaintiffs German Murillo, et al.[1] (collectively “Plaintiffs”) filed the instant breach of habitability action against Defendants Sunset Junior, LLC (“Defendant”) and Robert Eric Stabeck, as Trustee of the Rudolph Staback and Grace Staback inter vivos Trust (jointly “Defendants”).  On January 23, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) against Defendants.  The FAC asserts nine causes of action for (1) Breach of the Implied Warranty of Habitability, (2) Negligence, (3) Breach of the Covenant of Quiet Enjoyment, (4) Nuisance, (5) Intentional Infliction of Emotional Distress, (6) Violation of Business & Professions Code section 17200 et  seq., (7) Violation of Civil Code § 1942.4, (8) Violation of LAMC section 45.30 et seq, and (9) Violation of LAMC § 152.00 et seq.

On February 22, 2023, Defendant filed the instant demurrer and motion to strike portions of the FAC.  On March 23, 2023, Plaintiffs filed an opposition to the demurrer and motion to strike.  On April 3, 2023, Defendants filed their replies.

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.  Therefor’e, 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, Defendant has fulfilled the meet and confer requirements.  (Aghakhani Decl. ¶¶ 3-4, Exh. 1.)

Discussion – Demurrer

            Defendant demurrers to the fifth through ninth causes of action.

Fifth Cause of Action: Intentional Infliction of Emotional Distress

            Defendants contend that Plaintiff fails to sufficient allege a claim for intentional infliction of emotional distress.

            “A cause of action for intentional infliction of emotional distress [IIED] 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, IIED “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, overturned on other ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 [internal citation omitted].)  Moreover, “[l]iability for intentional infliction of emotional distress “‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

            Here, the FAC alleges that in late 2020 early 2021, that Defendants failed to address the existing unhabitable conditions such as mold and cockroach infestation and began major renovations without a proper Tenant Habitability Program. Defendants did so to benefit from collecting rent from Plaintiffs all the while advancing the major renovations in the building. (FAC ¶¶ 28-29.)  Defendant created additional disturbances and unhabitable and dangerous conditions for Plaintiffs, including but not limited to cutting off the water many days, some occasions without proper notice, excess dust and debris in the units, common areas, and outside the building, and at one point, covering the building entirely from the outside cutting all sunlight from entering through the windows. (FAC ¶ 29.)  The hallways have holes in the walls, and other common areas are under construction exposing Plaintiffs to hazardous and dangerous condition. (FAC ¶ 30.)  Furthermore, on March of 2022, rain caused severe water damage resulting in damages to common hallways, stairways, ceilings, walls, and flooring. Plaintiffs informed Defendant in writing and verbally at no avail. (FAC ¶ 31.)  Defendant failed to promptly address said issues leaving Plaintiffs to fend for themselves. (FAC ¶ 31.) “Additionally, Defendants began harassing Plaintiffs by knowingly cutting the internet cable, prolonging the time the water was shut-off, and charging utilities to some tenants after making requests for repairs or accommodations.” (FAC ¶ 32.)  Defendants have had notice from government officials and repeated notice of these issued from Plaintiffs.  (FAC ¶¶ 33-34.) 

The alleged conduct constitutes more than mere trivial insults.  Moreover, the FAC allegations show that Defendant either intentionally disregarded Plaintiffs harm caused by their conduct.  Further, Plaintiffs allege that this conduct caused severe emotional distress.  (FAC ¶ 62.)  Moreover, Defendants fail to show that as a matter of law this alleged conduct is insufficient.  “[T]he 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, Defendant’s demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action: Business and Professions Code section 17200

            Defendant contends that Plaintiffs fail to allege any conduct that falls under California’s Unfair Competition Law (“UCL”).   

            The purpose of the UCL “is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. [Citation.]” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)  Thus, the UCL prohibits unlawful, unfair or fraudulent business acts or practices.  (Bus. & Prof. Code, § 17200.)  “The Legislature intended this ‘sweeping language’ to include ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’” (Bank of the West v. Sup. Ct. (1992) 2 Cal.4th 1254, 1266.)  “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

“Because the statute is framed in the disjunctive, a business practice need only meet one of the three criteria to be considered unfair competition.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359.)  Section 17200’s “unlawful” prong “borrows violations of other laws ... and makes those unlawful practices actionable under the UCL.”  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)  “[V]irtually any law or regulation—federal or state, statutory or common law—can serve as [a] predicate for a ... [section] 17200 ‘unlawful’ violation.’ ”  (Ibid.)  “A business practice is “fraudulent” within the meaning of section 17200 if it is “likely to deceive the public.”  (Id. at p.1380.) “‘A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.’ [Citation.]”  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1407–1408.)  The determination of whether a business practice is unfair involves an examination of that practice’s impact on its alleged victim, balanced against the reasons, justifications, and motives of the alleged wrongdoer.  (Ibid.)  In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim.  (Nolte, Supra, 236 Cal.App.4th at pp. 1407–1408; Cf. Durell v. Sharp Healthcare, supra, 183 Cal.App.4th at 1365 [“[u]nfair” business practices are those which offend an “established public policy” that is tethered to “specific constitutional, statutory, or regulatory provisions”]; Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1254–1255.)

Here, the FAC alleges numerous instances of unlawful conduct such as the failure to obtain a Tennant Habitability Plan.  Accordingly, the FAC sufficiently states a claim under the UCL.  Therefore, Defendant’s demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action: Civil Code section 1942.4

            Defendant contends that complaint does not plead that a public officer or employee inspected the property and notified the landlord in writing to abate the nuisance or repair the condition.  The Court disagrees.

            Under Civil Code section 1942.4, “A landlord of a dwelling may not demand rent, collect rent, …, if all of the following conditions exist prior to the landlord's demand or notice: [¶] (1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling. [¶] (2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord's agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions. [¶] (3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail. [¶] (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.” 

            Here, the FAC directly alleges that “Plaintiffs complained of the substandard conditions to a government agency, which caused the government agency to send written notice to the Defendant and to give Defendant written orders to abate affirmative standard characteristics listed in Civil Code section 1941.1 and/or violated section 17920 of the Health and Safety Code. Defendant failed to abate the substandard conditions within thirty-five days after the written government order was issued and mailed to Defendant who nonetheless continued to accept and demand rent from Plaintiffs.”  (FAC ¶ 174.)  This is a clear allegation that a government agency gave written notice to Defendant. 

            Accordingly, Defendant’s demurrer to the seventh cause of action is OVERRULED.

Eighth Cause of Action:  LAMC section 45.30

            Defendant contends that the FAC fails to identify an enumerated statutory cognizable threat.  The Court disagrees.

            Under LAMC § 45.33, tenant harassment can consist of “[f]ailing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; or failure to follow applicable industry standards to minimize exposure to noise, dust, lead paint, asbestos, or other building materials with potentially harmful health impacts.”  (LAMC § 45.33(2).) 

            Here, the FAC alleges that Defendant failed to timely perform repairs as required by law.  (FAC ¶ 179.)  For example, on March of 2022, rain caused severe water damage resulting in damages to common hallways, stairways, ceilings, walls, and flooring. Plaintiffs informed Defendant in writing and verbally at no avail. (FAC ¶ 31.)  Defendant failed to promptly address said issues leaving Plaintiffs to fend for themselves. (FAC ¶ 31.)

Ninth Cause of Action: LAMC 152.00 et seq.

            Defendant contends that Plaintiffs fail to plead the basic requirements for relocation assistance.

            LAMC § 152.00 et seq requires a landlord to submit a Tenant Habitability Plan that must be approved before conducting major renovations. 

            Here, the FAC alleges that “[i]n late 2020 and early 2021, Defendant Sunset LLC began engaging in primary renovation work of the Property, at which relocation of the tenants was required, but Defendant Sunset LLC failed to submit a Tenant Habitability Program (‘THP’). Defendant Sunset LLC not only failed to address the existing unhabitable conditions ignoring Plaintiffs requests for required repairs but began renovations without a proper THP, creating additional disturbances and unhabitable and dangerous conditions for Plaintiffs, including but not limited to cutting off the water many days, some without proper notice, excess dust and debris in the units, common areas, and outside the building, and at one point, covering the building entirely from the outside cutting all sunlight from entering through the windows.”  (FAC ¶ 27.)  “The Tenant Habitability Program is an administrative program established by the City to balance the need to facilitate and encourage property owners’ reinvestment in their properties through the performance of Primary Renovation Work, which work typically involves replacement or substantial modification of major building systems and/or the abatement of hazardous materials, while simultaneously ensuring that tenants at the properties are not subjected to either untenantable conditions during the renovation work or forced permanent displacement. Accordingly, the program requires landlords to either safeguard tenants so that they can safely remain at the property while renovations occur, or that temporary relocation be made available to tenants whose tenantability at the property will be affected. LAMC §152.01.”  (FAC ¶ 28.)  This is sufficient to state a claim under this section.  Accordingly, Defendant’s demurrer to the ninth cause of action is OVERRULED.

Discussion – Motion to Strike

            Defendants seek to strike the prayer for punitive damages from the FAC. 

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.)

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.)  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 FAC alleges that Defendant made the units unlivable and refused to make any repairs despite being informed by Plaintiffs and government officials for the need to repair.  Moreover, the FAC alleges that “Defendants began harassing Plaintiffs by knowingly cutting the internet cable, prolonging the time the water was shut-off, and charging utilities to some tenants after making requests for repairs or accommodations.”  (FAC ¶ 32.)

These allegations are sufficient to state a prayer for punitive damages.  While “mere negligence, which—even if gross, or reckless—cannot justify punitive damages[,]” (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 679), these allegations amount to more than just mere negligence.  These added allegations – if proven true – would show that Defendant was intentionally harassing Plaintiffs to punish them for asking for repairs Defendant was legally required to make.  Further, these allegations are more than mere conclusory allegations of “oppression, fraud, and malice[,]” (Perkins, supra, 117 Cal. App.3d at pp.6-7), as clear specific facts to support the prayer have been alleged.
            Accordingly, Defendant’s motion to strike the prayer for punitive damages is DENIED.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Sunset Junior, LLC’s demurrer to the first amended complaint is OVERRULED.

Defendant’s motion to strike is DENIED.

Defendant is to file an answer within thirty (30) days of the date of this order.

The case management conference is continued to May 18, 2023

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

DATED:  April 10, 2023                                                        ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court