Judge: Elaine W. Mandel, Case: 23SMCV01316, Date: 2025-04-11 Tentative Ruling

Case Number: 23SMCV01316    Hearing Date: April 11, 2025    Dept: P

Tentative Ruling

Kiernan v. George, et al., Case no. 23SMCV01316

Hearing date April 11, 2025

Defendant Mosser Plumbing’s Demurrer to Third Amended Complaint

Defendants George & 2262 PCH’s Demurrer to Third Amended Complaint

Plaintiffs Kiernan sue members of the George family, George Family Trust, 22626 PCH Apt. 12, LLC, Mosser Plumbing & Heating Inc. and others, alleging 16 claims of negligence, breach of contract, nuisance, fraud and violations of Los Angeles County codes. Plaintiffs allege exposure to noxious odors, sewer gasses and pesticide fumes during their tenancy at a Malibu unit owned by defendants George family, the Trust and 22626 PCH (collectively “the Georges”).

The George defendants and Mosser Plumbing each demurs.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts,” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Requests for Judicial Notice

The Georges request judicial notice of: (1) lease between A. Kiernan and 22626 PCH; (2) City of Malibu Housing Element Update 2008-2014; (3) CC&Rs for Malibu Homeowners Association; (4) Malibu Homeowners Association’s response to form interrogatory no. 4.1; and (5) plaintiffs’ second amended complaint.

California courts may take judicial notice of contracts referenced in pleadings where the authenticity, completeness and legal effect of the contract is not disputed. See Scott v. JPMorgan Chase Bank N.A. (2013) 2145 Cal.App.4th 743, 753. Item (1) was referenced in the TAC at para. 27. See TAC para. 27. Judicial notice of item (1) is proper.

Cal. Evid. Code §452(h) permits the court to take judicial notice of facts and propositions not reasonably subject to dispute and capable of immediate and accurate determination via sources of reasonable accuracy. Item (2) is set forth in a document prepared by the City of Malibu and available on the City website. Judicial notice is proper. As Item (3) is on record with the county of Los Angeles, judicial notice is proper. See Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 644 fn. 12. As the court may take judicial notice of form interrogatory responses, even on demurrer (Bockrath v. Aldrich Chem Co. (1999) 21 Cal.4th 71, 83), judicial notice of item (4) is proper. Cal. Evid. Code §452(d) permits the court to take judicial notice of records of this court, so notice of the SAC is proper.

Plaintiffs argue the Georges’ requests for judicial notice are improper and present extrinsic evidence. Per Blank v. Kirwan (1985) 39 Cal.3d 311, 318 the court may determine whether a defect in the complaint exists on demurrer from the pleading itself or from judicially noticeable matters.

Plaintiffs request judicial notice of: (1)-(3) leases signed by A. Kiernan and C. George on 5/1/19, 5/6/19, 1/1/20, 1/21/20 and 5/10/21; and (4) the Los Angeles County Department of Consumer and Business Affairs – Housing and Tenant Protections’ revised guidelines.

Judicial notice of the leases (items (1)-(3)) is appropriate per Scott, supra. Judicial notice of item (4) is appropriate per Cal. Evid. Code §452(h).

Judicial notice of the Georges defendants’ (1)-(5) and plaintiffs’ (1)-(4) GRANTED.

Defendant Mosser’s Demurrer to Third Amended Complaint

Plaintiffs generally allege defendant Mosser Plumbing negligently repaired the communal septic tank, resulting in exposure to the odors. To support a claim for negligence, plaintiff must allege facts showing a legal duty to use due care, breach, causation and damages. Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.

Mosser demurs to the claim for negligence, arguing a repairer owes no duty to a third party, so plaintiffs cannot establish the element of duty. There is no duty owed by a repair person, absent some contractual duty or other special relationship, toward a third party. See Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1204. The “Seo court recognized that a duty of care can arise out of a contractual relationship [it] found no such duty in that case because the defendant had not agreed to maintain the gate or inspect it for defects. Id. at 1204. We reach a similar conclusion here.” Golick v. State of California (2022) 82 Cal.App.5th 1127, 1149 (holding no special relationship existed between a defendant and an injured third party where a contractual relationship only existed between defendants).

Plaintiffs allege “the repair and maintenance of the sewage treatment tank fixture was the responsibility of the LLC defendants, the Association, Westcom, SPS and all DOES Defendants.” TAC para. 33. Plaintiffs allege “the Association and Westcom hired Mosser to maintain and treat the septic systems treatment tanks.” TAC para. 69.

Mosser asserts it was not hired to inspect or maintain the above-ground septic piping system, where the septic odors were allegedly detected. See TAC para. 120. Mosser further argues the grouping of defendants in the TAC is impermissible and gives rise to vagueness. A general demurrer will be sustained “where the complaint makes conclusory allegations of a combination and does not allege with factual particularity that separate entities maintaining separate and independent interests” breached duties owed to Plaintiffs. Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 189.

Plaintiffs fail to allege a special relationship between Mosser and plaintiffs that gives rise to a duty. Plaintiffs also fail to allege Mosser undertook actions such as voluntary inspections or routine maintenance of the piping system such that a special relationship arose between Mosser and plaintiff third-party tenants.

Conclusory allegations that a duty existed are insufficient, since Mosser is alleged as a repairer, and plaintiffs are third parties to those repairs. See TAC paras. 53-54. Further, plaintiffs cannot lump Mosser and other defendants together without alleging what duties each defendant owed regarding the septic system and how those duties were allegedly breached. See Freeman, supra. SUSTAINED with leave to amend.

Mosser demurs to the cause of action for private nuisance, arguing plaintiffs cannot establish causation. The elements of a cause of action for private nuisance are: (1) interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) the interference is unreasonable as to the nature, duration, or amount. San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938. “Causation is an essential element… A plaintiff must establish a ‘connecting element’ or a ‘causative link’ between the defendant’s conduct and the threatened harm” Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 359.

Plaintiff alleges “Mosser had, in violation of the City of Malibu’s Onsite Wastewater Treatment Systems (“OWTS”) Policy, falsely certified that the system and its related alarm were functioning properly when in fact the system was not functioning properly.” TAC para. 69. Plaintiff alleges Mosser continued to “falsely certify… causing the septic system to fail, thereby exposing hazardous substances to Plaintiffs who resided directly above the septic tank.” TAC para. 71. These allegations are sufficient to establish a causal link between Mosser’s alleged conduct and plaintiffs’ alleged harm.

Mosser argues plaintiffs’ allegations fail to establish the harm was unreasonable. “If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular plaintiff may make it unendurable to him.” Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 802-03. Mosser argues the majority of Malibu relies on septic tanks, making septic odors normal to Malibu residents. See Georges RJN item (2). Whether an intrusion is substantial enough to disturb a resident of a given locality is a question of fact, not appropriate for demurrer. OVERRULED.

Mosser demurs to the cause of action for fraudulent concealment. “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.

Plaintiffs allege defendants, including Mosser, knew of the odors, their release into the property and potential harms thereof. See TAC paras. 53-54, 116-18. Plaintiffs allege defendants generally had a duty to protect plaintiffs and other tenants from the alleged leak. See TAC paras. 53-54. Plaintiffs allege Mosser intentionally concealed facts regarding the alleged leak at the direction of other defendants. See TAC paras. 120, 122. Plaintiffs allege they relied on their lack of knowledge and took no preventative measures, resulting in harm. See TAC paras. 123-124. However, plaintiffs fail to allege they would have acted differently had the leak not been concealed; while implied, this element must be explicitly alleged. See Boschma, supra. SUSTAINED with leave to amend.

Defendants George and 2262 PCH’s Demurrer to Third Amended Complaint

The George defendants demur to the first through eighth, twelfth and thirteenth causes of action, arguing they owed no duty to plaintiffs. Under California law, whether the Georges owed a duty is a question of law. See Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 674-75. Generally, a “landlord… must be aware of the specific dangerous condition and be able to do something about it before liability will attach.” Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 102. The Georges argue they could not have reasonably known of the dangers posed by specific septic odors plaintiffs complain of, and they had no responsibility to maintain common areas in the development.

The Georges further argue Civ. Code §5805 prevents civil liability for common area problems against individual owners. Section 5805 states: “(a) It is the intent of the Legislature to offer civil liability protection to owners of the separate interests in a common interest development that have common area owned in tenancy-in-common if the association carries a certain level of prescribed insurance that covers a cause of action in tort. (b) Any cause of action in tort against any owner of a separate interest arising solely by reason of an ownership interest as a tenant-in-common in the common area of a common interest development shall be brought only against the association and not against the individual owners of the separate interests.”

The George defendants are alleged to be owners of a separate interest in a common interest development. TAC para. 14. The common interest development is governed by defendant Malibu Owners Association. TAC para. 16. The Association maintains $2,000,000 in insurance. See George RJN item (4). Thus, section 5805 bars liability if the allegations arise solely from the Georges’ ownership interest.

Plaintiffs argue the Georges were aware of the alleged dangerous condition and caused the condition, pleading around the “solely by reason of ownership” clause of Cal. Civ. Code §5805. Plaintiffs allege the Georges improperly installed washer and dryer utilities and illegally attached those utilities to the septic system, creating holes in the property’s subfloor, which allowed septic gasses to seep into the unit. See TAC paras. 34, 47, 64, 75.

These allegations are sufficient on demurrer to satisfy the requirement that alleged harms did not arise solely due to defendants’ ownership of the unit. The demurrers to the first through eighth, twelfth and thirteenth causes of action are OVERRULED.

The Georges demur to the ninth, tenth and eleventh causes of action as invalid as a matter of law, arguing an alleged violation of a local ordinance does not give rise to a private cause of action. See Cohen v. Superior Court of Los Angeles County (2024) 102 Cal.App.5th 706 (holding Cal. Govt. Code §36900, purporting to grant right to redress municipal violations via civil action, did not authorize a private right of action).

The Georges’ reliance on Cohen is misplaced; Cohen states Cal. Govt. Code §36900 does not authorize a private right of action because it does not contain “clear, understandable, unmistakable terms… which strongly and directly indicate that the Legislature intended to create a private cause of action." Cohen, supra at 723. Further, Cohen notes “an individual may file suit based on another's violation of an ordinance when he or she: (1) ‘suffers a ‘special injury to himself in person or property of a character different in kind from that suffered by the general public’; or (2) ‘is a ‘member of the community for whose particular welfare the ordinance was enacted.’” Cohen, supra at 728, quoting Pacifica Homeowners’ Ass’n. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152-1153. Nothing in Cohen prevents plaintiffs from bringing claims for violations of Los Angeles Municipal Code ordinances.

Plaintiffs bring claims under LAMC §45.35, §12 of the LA County Covid-19 Moratorium Guidelines and §8.52.130(A) of the Los Angeles County Code. LAMC §45.35 states “an aggrieved tenant under this article… may institute civil proceedings as provided by law, against any landlord violating any of the provisions of this article.” Section 12 of the Moratorium states “Any Tenant… may enforce the provisions of Paragraphs V, VI, VII, or VIII of the Protections by means of a civil action seeking civil remedies.” §8.52.130(A) of the LACC states “A Tenant may assert retaliation affirmatively or as a defense to the Landlord's action… Retaliation claims may only be brought in court and may not be addressed administratively.” Plaintiffs can bring private causes of action under these ordinances. OVERRULED.

The George defendants also argue plaintiff J. Kiernan lacks standing, as he was not a signatory to the lease. The Georges assert the lease between A. Kiernan and C. George listed J. Kiernan as a “visitor only.” See George RJN item (1). A non-tenant lacks standing to pursue causes of action arising from a lease. See, e.g., Green v. Superior Ct. (1974) 10 Cal.3d 616, 637; Hoffman v. 162 N. Wolfe LLC (2014) 228 Cal.App.4th 1178, 1193. A non-tenant has no right to possession. See Cal. Evid. Code §1942.5; Cal. Gov. Code §12955(f).

The parties’ lease controls; as a non-signatory, J. Kiernan has no standing regarding the second through thirteenth causes of action.