Judge Elaine W. Mandel, Case Number: 24SMCV00356, Date: 2024-07-30 Tentative Ruling

Judge: Elaine W. Mandel, Case: 24SMCV00356, Date: 2024-07-30 Tentative Ruling

Case Number: 24SMCV00356 Hearing Date: July 30, 2024 Dept: P

Tentative Ruling

Nitoiu, et al. v. West Properties, Case No. 24SMCV00356

Hearing Date: July 30, 2024

Defendant West Property’s Demurrer to Complaint and Motion to Strike Punitive Damages

Plaintiff Gabriela Nitoiu and minor plaintiff Cameron Nitoiu bring a habitability action alleging defendant West Properties failed to maintain their unit, causing them to fall ill from exposure to toxic substances from mold and animal waste in their unit. Defendant West Properties demurs the third, fourth, and sixth causes of action, citing res judicata, duplicative pleadings and failure to state a cause of action, and moves to strike punitive damages allegations.

Evidentiary Rulings

West Properties’ request for judicial notice of (1) the unlawful detainer complaint filed by CS Holdings against Gabriela Nitoiu on August 25, 2023, Case No. 23STUD11240.; (2) Answer, filed September 8, 2023; (3) Minute Order of February 22, 2024; and (4) judgment entered February 22, 2024, exhs. A-D, GRANTED per Evid. Code § 452(d) as court records.

Demurrer

Breach of Implied Warranty of Habitability

West Properties argues the cause of action for breach of implied warranty of habitability is barred by issue preclusion because Nitoiu asserted a habitability defense in the unlawful detainer action, so she is precluded from raising it here. Exhs. A-D.

Plaintiffs argue the issue was not fully heard on its merits. “The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797, internal quotations and citations omitted. There are two aspects of res judicata, claim preclusion and issue preclusion. Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326.

Issue preclusion bars relitigating issues argued and decided in the previous action. DKN Holdings, LLC v. Faerber (2015) 61 Cal.4th 813, 824. The elements of issue preclusion are “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” Id. at p. 825.

The court takes judicial notice of the judgment and minute order in the unlawful detainer action. Exh. C & D. “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556. Based on these documents, it is not clear there was an adjudication on the merits of the habitability affirmative defense. Neither document mentions this issue. There are no factual findings in the minute order or judgment. West Properties failed to provide evidence demonstrating the defense was fully and fairly heard on its merits, so the claim is not barred by issue preclusion. OVERRULED.

Private Nuisance

West Properties argues that the fourth cause of action for private nuisance is redundant as it duplicates the first cause of action for negligence.

A demurrer may be sustained on the basis the causes of action are duplicative by way of alleged facts and theories of recovery. See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.

The complaint alleges the apartment manager kept her dog in the unit for eight months, during which time the dog urinated and defecated in the unit, and the waste was not properly cleaned. Id. ¶¶ 16-18. As a result, the waste containing bacteria, ammonia and parasites seeped into the carpets and beneath the wood flooring. Id. ¶ 19. Plaintiffs alleged defendants’ conduct was reckless and harmful to plaintiffs’ health, indecent, offensive to the senses, and interfered with property use and enjoyment. Id. ¶¶ 100-104.

This cause of action is distinguishable from the negligence cause of action because plaintiffs alternatively allege the “action or failure to take action which created these conditions was intentional and unreasonable.” Id. ¶ 101. OVERRULED.

Intentional Infliction of Emotional Distress (IIED)

Finally, West Properties argues the sixth cause of action for IIED fails because it does not plead sufficient facts. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.

Plaintiffs allege exposure to dog waste, moisture, water intrusion and toxic mold. FAC ¶¶ 17-19, 21. Plaintiffs allege West Properties intentionally failed to inform them of the waste and did not make the unit safe for human occupation prior to leasing it. Id. ¶ 20. Plaintiffs became ill due to the exposure. Id. ¶ 28. Despite presenting doctor's notes and a mold report to West Properties, and substandard remediation efforts performed in October 2022, West Properties refused to take further action. Id. ¶¶ 29-47.

This would be sufficient to support the claim on demurrer because it demonstrates outrageous conduct. The complaint further pleads West Properties intentionally withheld information about the apartment and did not adequately address the issue, despite being provided with evidence of intolerable living conditions. Thus, at the pleadings stage, this is sufficient. OVERRULED.

Motion to Stike Punitive Damages

Per Code Civ. Proc., §436(a)-(b), defendant seeks to strike paragraphs 56, 114-116, 148-150, and p. 22 ln. 27, regarding punitive damages. Defendant argues plaintiffs allege only legal conclusions, not facts.

A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” Civ. Code §3294(a). “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.

The Nitoius allege defendant knew of the dog waste but failed to inform them prior to their tenancy. Plaintiffs allege West Properties intentionally failed to inform them of the waste and did not make the unit safe for occupation prior to leasing it to plaintiffs. Id. ¶ 20. Plaintiffs provided West Properties with several medical notes regarding minor Cameron Nitoiu’s illness from exposure to mold and animal waste. However, no remedial action was taken. FAC ¶¶ 29-31; Ex. 2, 3. The Nitoius further allege they provided the mold report to West Properties and asked them to remediate the problem. Id. ¶ 33. West Properties refused to do so. Id. ¶ 34. Furthermore, the Nitoius allege West Properties' prior attempts to remediate the apartment in October 2022 were inadequate to address the toxic mold and dog waste. Id. ¶ 47. These facts, if proven, might support a finding of malice. DENIED.

West Properties is to answer within 15 days.