Judge: Elaine W. Mandel, Case: 24SMCV05827, Date: 2025-05-20 Tentative Ruling

Case Number: 24SMCV05827    Hearing Date: May 20, 2025    Dept: P

Tentative Ruling

Vernon v. 4255 ½ S Centinela, Case no. 24SMCV05827

Hearing date May 20, 2025

Defendants’ Demurrer with Motion to Strike

Plaintiff tenant Vernon sues defendant landlords 4255 ½ S. Centinela Ave Property, 4253-4257 12 Centinela Ave LLC, Oyanagi Family Trust and Mah for causes of actions arising from toxic mold exposure in plaintiff’s unit. Defendants demur to the first, third, eighth, ninth and thirteenth causes of action. Plaintiff subsequently dismissed the eighth and ninth causes of action but opposes the demurrers to the first, third and thirteenth causes of action.

Defendants move to strike the prayer for punitive damages and paragraphs: 59, 76, 83, 105, 106, 121, 122, 130, 141, 147, and 161. Defendants also move to strike plaintiff’s prayer for attorney’s fees. Plaintiff opposes.

Defendants’ Demurrer

“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.

The first cause of action for battery requires a factual showing: “(1) Defendant touched Plaintiff, or caused Plaintiff to be touched, with the intent to harm or offend Plaintiff; (2) Plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” So v. Shin (2013) 212 Cal.App.4th 652, 669.

Plaintiff alleges defendants intentionally caused him to be touched by mold. Compl. para. 53. Plaintiff alleges defendants failed to properly inspect the property, failed to retain mold and pest control services in a timely manner and failed to move him or terminate the lease. Compl. para. 54. Plaintiff argues these allegations constitute an intent to cause him to be touched by mold.

Plaintiff has not established intent. He offers only conclusory allegations as to defendants’ actions. Further, plaintiff alleges defendants attempted to remediate the mold and conducted repairs, undercutting the allegations of intentional contact. See Compl. paras. 15, 18, 23, 26 29.

Plaintiff relies on Mathias v. Accor Econ. Lodging, Inc. (7th Cir. Ill. 2003) 347 F.3d 672, arguing defendants’ failure to remedy a mold and bed bud infestation constituted battery. Mathias held a “failure to warn guests or take effective measures to eliminate the mold amounted to fraud and probably to battery as well.” Id. Mathias did not rule on whether defendants’ actions constituted battery; the focus of the analysis was alleged fraud. SUSTAINED with 15 days leave to amend.

The third cause of action for intentional infliction of emotional distress requires a factual showing of: “(1) extreme and outrageous conduct by defendant with 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.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.

Conduct, to be “outrageous,” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44. While the outrageousness of a defendant's conduct normally presents an issue of fact to be determined by the trier of fact (see Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 51) the court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Fowler, supra at 44.

Defendants argue plaintiff cannot establish the first or second prongs of an IIED claim. Plaintiff argues defendants’ failure to successfully remediate the mold constitutes reckless, conscious disregard. This is contradicted by plaintiff’s admissions that defendants attempted to remediate the mold multiple times and conducted repairs on the unit at least twice. See Compl. paras. 15, 18, 23, 26 29. Attempts to remediate demonstrate defendants’ actions were not conducted with extreme disregard. That the remediation attempts were allegedly unsuccessful does not render them outrageous.

Plaintiff argues defendants were recklessly dilatory in remediation measures. Mold was noted 12/23/21; the first remediation occurred “early 2022.” Compl. paras. 13, 15. Plaintiff must allege with specificity to substantiate his argument of delay. SUSTAINED with 15 days leave to amend.

The thirteenth cause of action for public nuisance requires a factual showing: “(1) That Defendants, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to health; or was indecent or offensive to the senses; or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) That the condition affected a substantial number of people at the same time; (3) That an ordinary person would be reasonably annoyed or disturbed by the condition; (4) That the seriousness of the harm outweighs the social utility of Defendants’ conduct; (5) That Plaintiff did not consent to Defendants’ conduct; (6) That Plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) That Defendants’ conduct was a substantial factor in causing Plaintiff’s harm.” CACI No. 2020

Plaintiff cites the Second Restatement of Torts, asserting "the threat of communication of smallpox to a single person may be enough to constitute a public nuisance because of the possibility of an epidemic; and a fire hazard to one adjoining landowner may be a public nuisance because of the danger of a conflagration." Rest. §821B, com. g., pp. 92-93. Plaintiff argues the threat of mold exposure constitutes a public nuisance. The First District Court of Appeals of California held “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.” City of Modesto Redevelopment Agency v. Superior Ct. (2004) 119 Cal.App.4th 28, 38.

Plaintiff alleged no facts that defendants created or assisted in creating the mold. Plaintiff failed to present facts that defendants intentionally concealed or persisted in allowing mold. There is no indication defendants created or engaged in an activity that is harmful or annoying. Further, plaintiff alleged defendants attempted to remediate multiple times. SUSTAINED with 15 days leave to amend.

Defendants’ Motion to Strike Punitive Damages

Per Cal. Code Civ. Proc. §3294, punitive damages are only awardable when defendant's actions demonstrate “oppression, fraud, or malice,” and such allegations must be pleaded with specificity. Punitive damages are not supported by negligence or gross negligence. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.

Plaintiff argues defendants’ conduct was reckless and egregious. Opp. 4:19. Plaintiff argues defendants consciously disregarded his rights, causing harm. Plaintiff points to defendants’ failure to remediate as the method by which defendants disregarded his rights. While this may constitute negligent or reckless conduct, such conduct does not warrant punitive damages. See Flyer’s Profit Sharing Company v. Tycor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155 (holding “[t]o establish malice it is not sufficient to show only that the Defendants’ conduct was negligent, grossly negligent or even reckless. There must be evidence that the Defendants acted with knowledge of probable dangerous consequences of plaintiffs’ interests and deliberately failed to avoid these consequences.”)

Plaintiff alleges defendants attempted to remediate and repair multiple times. See Compl. para. 15, 18, 23, 26 29. These allegations defeat arguments that defendants deliberately failed to avoid harmful consequences. Whether defendants succeeded is irrelevant; plaintiff is bound his own allegations that defendants attempted to remediate and repair the unit. Plaintiff cannot establish that defendants acted with conscious disregard for the alleged consequences under the facts pled.

Plaintiff does not offer any arguments as to defendants’ motion to strike the prayer for attorney’s fees. Plaintiff offers no legal or factual basis for seeking attorney’s fees. GRANTED.