Judge: Elaine W. Mandel, Case: 23SMCV01316, Date: 2023-12-13 Tentative Ruling
Case Number: 23SMCV01316 Hearing Date: December 13, 2023 Dept: P
Tentative Ruling
Kiernan, et al. v.
George et al., Case No. 23SMCV01316
Hearing Date
December 13, 2023
Defendants Malibu
Owners Assoc. & Westcom Property Services Demurrers and Motions to Strike
First Amended Complaint
The Kiernans plaintiffs
allege exposure to toxic fumes emanating from underneath their condominium. Plaintiffs
allege they complained to defendants Malibu Owners Association (MOA) and
Westcom Property Services, the management company, but defendants did not remedy
the issues. Defendants demur to the first amended complaint.
Negligence
A person who hired
an independent contractor is generally not liable to third parties for injuries
caused by the contractor’s negligence in performing the work. Privette v.
Superior Ct. (1993) 5 Cal.4th 689, 693. Homeowners associations have a
“duty to exercise due care for the residents’ safety in those areas under their
control.” Ritter v. Ritter, Inc. Pension & Profit Plan v. The Churchill
Condominium Ass’n. (2008) 166 Cal.App.4th 103, 119-120.
Westcom and MOA argue
the FAC admits third-party contractors were responsible for creating or failing
to prevent the toxic fumes, and Privette limits responsibility for acts
or omissions of contractors. They argue the FAC does not allege conduct by the
MOA or Westcom that contributed to the injuries other than hiring contractors.
The FAC alleges
Westcom and the MOA were aware of the dangerous conditions but failed to warn residents
and take adequate steps to remedy the problem. FAC ¶¶ 57, 65. It also alleges
Westcom and MOA were aware the contractor defendants performed dangerous,
inadequate work but negligently continued to hire them. E.g., FAC ¶54, 67. The
FAC adequately alleges negligent acts committed by Westcom and the MOA, not
just vicarious liability for the contractors’ work. OVERRULED.
Strict Liability –
Ultrahazardous
Strict liability
is imposed for damage proximately caused by one who carries on an
“ultrahazardous” activity. Edwards v. Post Transportation Co. (1991) 228
Cal.App.3d 980, 983. Whether an activity is ultrahazardous is a question of
law, but the nature of the decision is related to weighing facts. Sometimes, an
activity can be deemed ultrahazardous “based upon common knowledge,” but other
activities “involve danger which can be appraised only upon the advice and
education of experts.” Edwards v. Post Transportation Co. (1991) 228
Cal.App.3d 980, fn. 2. Although a question of law, the fact-intensive analysis
required to determine whether an activity is ultrahazardous led some courts to conclude
“the issue of whether an activity is ultrahazardous cannot be decided on
demurrer.” SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 906. Others
disagreed and resolved the issue on demurrer. E.g., Camsi IV v. Hunter Tech.
Corp. (1991) 230 Cal.App.3d 1525, 1532.
A six-part test is
used to determine whether an activity is ultrahazardous: (a) existence of a
high degree of risk of some harm; (b) likelihood the harm will be great; (c)
inability to eliminate the risk by exercise of reasonable care; (d) extent to
which the activity is not a matter of common usage; (e) inappropriateness of
the activity to the place. SKF, supra, 153 Cal.App.3d at 906.
Westcom and the
MOA argue, as a matter of law, that the activities alleged in the FAC are not
ultrahazardous. They compare the allegations to Edwards, where the court
held the use of sulfuric acid was not an “ultrahazardous” activity. Moving
parties argue that using sulfuric acid is riskier and more unusual than maintaining
a septic tank or using a commercial chemical to treat wood. Defendants argue
under Edwards, the bar for ultrahazardous activity is high, and the
allegations do not clear it.
The court cannot assume
based on lay knowledge and “common-sense” that the chemicals and fumes used are
less hazardous than sulfuric acid, as in Edwards. The court will have to
rely upon experts to determine whether defendants’ activities qualify as ultrahazardous.
The court cannot make a determination of ultrahazardousness on demurrer without
an evidentiary record.
However, the allegations
are conclusory. The FAC alleges “[t]he foregoing defendants were engaged in
ultrahazardous activities by maintaining and/or repairing the foregoing
fixtures and/or utilizing products that contain hazardous chemicals including
hydrogen sulfide, toxic chemicals, and fumes.” FAC ¶89. These allegations do
not establish ultrahazardousness. The allegations do not show the risk of the
alleged activity cannot be eliminated through reasonable care, the activity is
not a matter of common usage or is inappropriate to the place. SUSTAINED with
ten days leave to amend.
Private Nuisance
Defendants cite City
of Modesto Redevelopment Agency v. Superior Court (2004) 199 Cal.App.4th
28, 37 which states “liability for nuisance does not hinge on whether the
defendant owns, possesses, or controls the property, nor on whether he is in a
position to abate the nuisance; the critical question is whether the defendant
created or assisted in the creation of the nuisance.” Relying on this, they
argue the FAC does not adequately allege defendants “created or assisted in the
creation” of the condition that caused the alleged injuries.
Modesto does not support
defendants’ contentions; it interpreted nuisance liability more broadly than
defendants imply. The quoted language supported a conclusion that a defendant
who does not own or control land can nonetheless be liable for creating a
nuisance. It did not exculpate a landowner from a nuisance on their property.
Plaintiffs allege harmful and/or offensive fumes entered their property due to
shoddy work by contractors. They allege moving defendants hired the contractors
despite knowing they were unqualified and repeatedly failed to fix the issue
despite complaints. FAC ¶54, 67, 122. These facts, if proven, would show defendants
“created or assisted in the creation” of a nuisance. OVERRULED.
Fraudulent
Concealment
The elements of
fraudulent concealment are (1) defendant concealed or suppressed a material
fact, (2) duty to disclose the fact, (3) defendant intentionally concealed the
material fact with intent to defraud, (4) plaintiff was unaware of the fact and
would not have acted as they did if aware of the concealed fact, and (5)
damage. Mosier v. S. Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4th
1022, 1045. The rule of heightened specificity when pleading fraud applies to
affirmative misrepresentation, not to claims based on concealment or lack of
disclosure. Alfaro v. Community Housing Improvement System & Planning
Assoc., Inc. (2009) 171 Cal.App.4th 1356, 1384.
Defendants argue
plaintiffs have not alleged adequate facts. Defendants state they are not “the
type of defendants [who] would inherently be expected to have more information
that Plaintiffs whether fumes Plaintiffs allegedly smelled were toxic or
causing any symptoms. There are no facts that reasonably could be accepted that
a management company would have any knowledge about the toxicity of any
products that their contractors use[.]” Westcom demurrer pgs. 11-12. These
assertions cannot serve as a basis for demurrer. Without evidence or authority,
the court cannot accept assertions about what “type” of defendants MOA and
Westcom are or whether it would be reasonable to charge them with knowledge
their contractors’ conduct or the fumes.
The FAC alleges
defendants knew there were toxic chemicals but suppressed that information. Plaintiffs
allege their ignorance of the chemicals caused them to rely on an incorrect
belief that their unit was safe, suffering injury. FAC ¶¶126-133. The
allegations must be treated as true on demurrer and are sufficient to set forth
a cause of action for fraudulent concealment. OVERRULED.
Unfair Competition
California’s Unfair Competition statute
provides a private cause of action for “unlawful, unfair or fraudulent”
business acts or practices. Cal. Bus. & Prof. Code §17200 et. seq. As a
matter of law, a homeowners association is not subject to liability under the
UCL because “[a]n association does not participate as a business in the
commercial market, much less compete in it.” That v. Alders Maintenance Ass’n.
(2012) 206 CalApp.4th 1419, 1427.
MOA demurs to the UCL claim under That.
MOA is a homeowner association and cannot be liable under the UCL. SUSTAINED
without leave to amend.
Westcom argues “it is not a business
but simply a management company.” Westcom demurrer pg. 12. A management company
is a business. It cites no authority that a property management company enjoys protection
from UCL liability. Westcom argues the UCL claim is uncertain. The FAC is
unclear as to whether it is based on an unfair, unlawful or deceptive business
practice, and it does not identify the specific business practice giving rise
to the claim. SUSTAINED with ten days leave to amend.
Motion to Strike
Chain Letter
Allegations
Westcom and MOA
move to strike the allegations, which incorporate every prior allegation into
each cause of action. While “chain letter” pleading is disfavored, none of the
cases cited stand for the proposition that it exposes a complaint to a motion
to strike. DENIED.
Punitive Damages
Westcom and MOA
move to strike the request for punitive damages. Fraud is a valid basis for a
punitive damages request. Cal. Code of Civ. Proc. §3294. The court determined
the complaint adequately pleaded fraud, so the request for punitive damages is
proper. DENIED.
Injunctive Relief
The request for
injunctive relief arises out of the UCL claim. The court sustained defendants’
demurrer to that claim, so the request for injunctive relief has no surviving
basis. GRANTED with ten days leave to amend.
Attorney’s Fees
The opposition
concedes there is no basis for the attorney’s fees request against MOA and
Westcom. GRANTED.