Judge: Elaine Lu, Case: 22STCV30027, Date: 2022-12-14 Tentative Ruling

Case Number: 22STCV30027    Hearing Date: December 14, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On September 14, 2022, Plaintiffs Aaron Francisco, Rudy Payes, Alida Payes, Tony Azaisa, Nicole Azaisa, Rosa Martinez, Gilberto Mendoza, Jesus Mendoza, Briseida Mendoza, Gilberto Mendoza Jr., Mia Mendoza, Lilan Alas, Jacqueline Alas, and Oswaldo Cortez (collectively “Plaintiffs”) filed the instant breach of habitability action against Defendants Poppa 1, LLC, Power Property Management, LLC, Fredric Rosenberg, and Barbara Rosenberg (collectively “Defendants”).  The complaint asserts five causes of action for (1) Breach of Contract, (2) Breach of the Implied Warranty of Habitability, (3) Nuisance, (4) Negligence, and (5) Intentional Infliction of Emotional Distress.

            On October 21, 2022, Defendants Fredric Rosenberg and Barbara Rosenberg (jointly “Rosenbergs”) filed the instant demurrer and motion to strike portions of the complaint.  On December 1, 2022, Plaintiffs filed an opposition to the demurrer and motion to strike.  On December 7, 2022, the Rosenbergs filed replies to both oppositions. 

Allegations of the Operative Complaint

            The complaint alleges that:

            Defendants are the owners/managers of 14724 Chadron Ave., Gardena, CA 90249 (“Subject Property”).  (Complaint ¶ 22.)  Plaintiffs were/are tenants of Defendants at the Subject Property.  (Id. ¶¶ 23-24.)  “During the PLAINTIFFS’ tenancy the SUBJECT PROPERTY substantially lacked the following (hereinafter referred to as ‘CONDITIONS’): [¶] a. Effective waterproofing and weather protection of roof and exterior walls [Cal. Civ. Code § 1941.1(a)(1); Cal. Health & Safety Code § 17920.3(g)(2)]; [¶] b. Unbroken windows [Cal. Civ. Code § 1941.1(a)(1); Cal. Health & Safety Code § 17920.3(g)(2)]; [¶] c. Plumbing maintained in good working order [Cal. Civ. Code § 1941.1(a)(2); Cal. Health & Safety Code § 17920.3(e)]; [¶] d. Heating facilities maintained in good working order [Cal. Civ. Code § 1941.1(a)(4), Cal. Health & Safety Code § 17920.3(6)]; [¶] e. Electrical lighting, with wiring and electrical equipment maintained in good working order [Cal. Civ. Code § 1941.1(a)(5); Cal. Health & Safety Code § 17920.3(a)(10); Cal. Health & Safety Code § 17920.3(d)]; [¶] f. Building, grounds, and appurtenances kept clean, sanitary, and free from all accumulations of debris, filth, rubbish and garbage [Cal. Civ. Code § 1941.1(a)(6)]; [¶] g. Building, grounds, and appurtenances kept clean, sanitary, and free from all accumulations of rodents [Cal. Civ. Code § 1941.1(a)(6)]; [¶] h. Building, grounds, and appurtenances kept clean, sanitary, and free from all accumulations of vermin [Cal. Civ. Code § 1941.1(a)(6)]; [¶] i. An adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair [Cal. Civ. Code § 1941.1(a)(7)]; [¶] j. Floors maintained in good repair [Cal. Civ. Code § 1941.1(a)(8), Cal. Health & Safety Code § 17920.3(b)(2)][.]”  (Complaint ¶ 26.)

            “The following CONDITIONS existed at the SUBJECT PROPERTY to an extent that endangered life, limb, health, property, safety or welfare of the PLAINTIFFS: [¶] k. Lack of operating ventilating equipment [Cal. Health & Safety Code § 17920.3(a)(7)]; [¶] l. Dampness of habitable rooms [Cal. Health & Safety Code § 17920.3(a)(11)]; [¶] m. General dilapidation or improper maintenance [Cal. Health & Safety Code § 17920.3(a)(14)]; [¶] n. Visible mold growth constituting a nuisance [Cal. Health & Safety Code § 17920.3(c)]; [¶] o. Infestation of insects constituting a nuisance [Cal. Health & Safety Code § 17920.3(c)]; [¶] p. All materials of construction not maintained in good and safe condition [Cal. Health & Safety Code § 17920.3(i)][.]”  (Complaint ¶ 26.)

            “The PLAINTIFFS have complained to the DEFENDANTS on many occasions in person and via an online portal and for several years and DEFENDANTS have done little to nothing to address or remediated the substandard CONDITIONS.”  (Id. ¶ 27.)  These conditions have caused Plaintiffs “to be constantly sick with respiratory issues and has caused them to live with substantial stress due to the deplorable living conditions.”  (Id. ¶ 31.) 

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, the Rosenbergs have fulfilled the meet and confer requirements.  (Nashalian Decl. ¶¶ 4-5, Exhs. B-C.)[1]

Discussion – Demurrer

            The Rosenbergs demurrer to the fifth cause of action for intentional infliction of emotional distress.

Fifth Cause of Action: Intentional Infliction of Emotional Distress

The Rosenbergs 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 due to the cockroach infestations, water leaks, rat infestations, lack of heating, defective plumbing, and mold on the Subject Property.  (Complaint ¶¶ 28-30, 64.)  On the pleadings, Plaintiffs 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.)  The complaint alleges that Plaintiffs repeatedly informed Defendants that the condition of the Subject Property was causing Plaintiffs extreme emotional distress and discomfort for several years.  (Complaint ¶ 27.)  However, despite knowing that the condition of the Subject Property was causing Plaintiff extreme emotional distress and discomfort, Defendant failed to properly remedy the conditions of the Subject Property.  (Id. ¶¶ 62-63.)  In fact, the complaint alleges that the way Defendant had Plaintiffs living was “done for the purpose of causing PLAINTIFFS to suffer humiliation, mental anguish, and emotional distress.”  (Id. ¶ 63.)  Moreover, the Complaint alleges that Defendants were in a position of power over Plaintiffs – i.e., Plaintiffs’ landlord.  (Id. at ¶¶ 22-25; 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, the Rosenbergs’ demurrer to the fifth cause of action is OVERRULED.

Discussion – Motion to Strike

            The Rosenbergs seek to strike the prayer for punitive damages from the complaint. 

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].)

The complaint alleges in relevant part that due to the numerous complaints from Plaintiffs over the years, Defendant has been aware of various harm and substandard living conditions such as the rat and cockroach infestations. (Complaint ¶ 27.)  Instead of taking corrective actions, Defendant ignored these complaints despite knowing the harm it was causing Plaintiffs for years.  (Id. ¶¶ 61-62.) Further, the complaint alleges that the way Defendant had Plaintiffs living was “done for the purpose of causing PLAINTIFFS to suffer humiliation, mental anguish, and emotional distress.”  (Id. ¶ 63.)

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 Defendants had been aware of the various hazardous infestations plaguing Plaintiffs for years but failed to take any action.  Coupled with the allegations that the Defendants were the managers and owners of the Subject Property, (Complaint ¶ 22), this is sufficient to allege that Defendants not only knew about the hazardous harm to Plaintiffs for years but willfully failed to take any action to remedy such harm.  This sufficiently alleges a conscious disregard of Plaintiffs harm for up to multiple years that if true would support a prayer for punitive damages.  (Penner v. Falk (1984) 153 Cal.App.3d 858, 867 [“The pleadings also set out that respondents knew of [harmful] conditions for up to two years, had power to make changes, but failed to take corrective and curative measures. If proven, these allegations would support an award of punitive damages.”].)  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, the Rosenbergs’ motion to strike the prayer for punitive damages is DENIED.

Conclusion and ORDER

            Based on the foregoing, Defendants Fredric Rosenberg and Barbara Rosenberg’s demurrer is OVERRULED.  Defendant Fredric Rosenberg and Barbara Rosenberg’s motion to strike the prayer for punitive damages in the complaint is DENIED.

            Defendants are to file an answer within thirty (30) days of notice of this order.

            On December 1, 2022, Defendant Power Property Management LLC filed two demurrers, one set for hearing on April 11, 2023 and the other set for April 13, 2023.  Within three days, Counsel for Defendant Power Property Management LLC is to file and serve a new notice of demurrer if one of these demurrers was intended to be filed on behalf of co-defendant POPPA 1, LLC, and if so, a complete set of moving papers for both demurrers if any moving papers are missing on behalf of either defendant.  Both CRS reservations for the demurrers (April 11, 2023 and April 13, 2023) are advanced to January 31, 2023 at 8:30 am.  Accordingly, Defendant Power Property Management LLC’s (and POPPA 1, LLC’s) demurrer are advanced to January 31, 2023 at 8:30 am for hearing. Plaintiffs are to timely file and serve one consolidated opposition to both demurrers per CCP section 1005(b) based on the new hearing date.  Defendants Power Property Management LLC and POPPA 1, LLC are to timely file and serve one consolidated reply for both demurrers per CCP section 1005(b) based on the new hearing date. 

            The
case management conference is continued to January 31, 2023 at 8:30 am.

            Moving Party is to provide notice of this order and file proof of service of such.

DATED: December 14, 2022                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court