Judge: Elaine W. Mandel, Case: 21STCV01974, Date: 2023-09-19 Tentative Ruling

Case Number: 21STCV01974    Hearing Date: December 14, 2023    Dept: P

Tentative Ruling

Johnson v. Essex Property Trust, Inc., Case No. 21STCV01974

Hearing Date 12/14/2023

Essex Defendants’ Demurrer to and Motion to Strike Portions of First Amended Complaint

Plaintiff rented an apartment in a building owned and operated by the Essex defendants. Plaintiff alleges Essex failed to maintain the building, allowing dangerous and uninhabitable conditions to exist, including a poisonous methane leak. Plaintiff alleges she reported these conditions but Essex did not remedy them. The Essex defendants demur to plaintiff’s cause of action for fraud and move to strike the request for punitive damages.

Fraud

The elements of fraudulent concealment are (1) defendant concealed or suppressed a material fact, (2) duty to disclose, (3) defendant intentionally concealed the fact with intent to defraud, (4) plaintiff was unaware of the fact and would not have acted as she did had she known of the fact, and (5) resulting damage. Mosier v. S. Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4th 1022, 1045. The rule of heightened specificity regarding fraud applies to affirmative misrepresentation, not claims based on concealment or lack of disclosure. Alfaro v. Community Housing Improvement System & Planning Assoc., Inc. (2009) 171 Cal.App.4th 1356, 1384. Landlords aware of hidden defects in their property have an affirmative duty to inform tenants. Shotwell v. Bloom (1943) 60 Cal.App.2d 303, 310(superseded on other grounds Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 983).

Essex argues the fraud claim is not alleged with sufficient particularity. The fraud claim is not based on an affirmative misrepresentation but on alleged failure to disclose a material fact, the presence of methane. FAC ¶¶140-144. Under Alfaro, the heightened pleading standard does not apply to claims based on nondisclosure. Plaintiff alleges defendants were aware of methane but did not tell her. It would be illogical to require her to allege “when” or “how” defendants did not tell her. She alleges they never told her, and she discovered the issue independently in summer 2022. FAC ¶19. That is sufficient.

Likewise Johnson is not required to name a specific employee who allegedly committed fraud since this is a claim based on nondisclosure, not affirmative misrepresentation. Johnson alleges no one working for Essex disclosed the presence of methane. She is not required to name an employee who hypothetically could have disclosed the condition. Essex also argues plaintiff has not adequately alleged a duty to disclose the presence of methane. Johnson alleges Essex owned/controlled the building and knew about the presence of methane. FAC ¶¶140-141. Under Shotwell, this created a duty of disclosure to Essex’s tenants. Plaintiff adequately alleges fraudulent concealment. OVERRULED. Defendants to answer within 20 days.

Motion to Strike Punitive Damages

Fraud is one of the bases for a punitive damages award. Cal. Code of Civ. Proc. §3294. Johnson adequately alleged fraud by concealment. The request for punitive damages is proper. DENIED.