Judge: Frank M. Tavelman, Case: 21BBCV01056, Date: 2022-08-12 Tentative Ruling

Case Number: 21BBCV01056    Hearing Date: August 12, 2022    Dept: A

ALLEGATIONS:

Plaintiff Ori Lahav ("Plaintiff") filed suit against Defendants Carla Kralovic (“Kralovic”) and Pattie Broom (“Broom”, and together, “Defendants”), alleging that Plaintiff is a resident and tenant in the real property located at 7543 Valaho Drive, Los Angeles, California 91042 (“Subject Property”), which is owned by Kralovic. Plaintiff alleges that Defendants had notice of, and failed to remedy, substantial habitability issues, and retaliated against Plaintiff’s complaints.

Plaintiff filed a Complaint on December 23, 2021, and a First Amended Complaint (“FAC”) on January 31, 2022, alleging six causes of action: (1) Tortious Breach of Warranty of Habitability; (2) Breach of the Covenant of Quiet Enjoyment; (3) Negligence; (4) Negligence; (5) Breach of Contract; and (6) Retaliation.

HISTORY:

The Court received the Demurrer filed by Defendants on July 6, 2022; the opposition filed by Plaintiff on July 27, 2022; and the reply filed by Defendants on August 5, 2022.

The Court received the Motion to Strike filed by Defendants on July 6, 2022. The Court has not received any opposition or reply.

RELIEF REQUESTED:

Defendants demur to the sixth cause of action in the FAC.

Defendants move to strike the following portions of the FAC:

1.  The portions of Paragraph 33 reading “intentionally,” and “intentional.”

2. The portion of Paragraph 53 reading “willfully, knowingly, and purposefully,” “intended,” and “and substantially harass.”

3. The portions of Paragraph 56 reading, “were knowing, intentional, willful, and malicious,” “and were further done in conscious disregard of the rights of Plaintiff. Plaintiff therefore is entitled to exemplary damages in a sum which will be adequate to punish and make an example of Defendants, and each of them. In addition, Plaintiff is entitled to attorney’s fees and costs pursuant to California Civil Code § 1942.5.”

4. Item 3 in the Prayer for Relief.

ANALYSIS:

Demurrer

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)

Although the Wessel Declaration cites to exhibits that have not been attached to the moving papers, the Court nonetheless finds that meet and confer requirements have been satisfied to code. (Decl. Wessel, ¶¶ 2-3.)

III.       MERITS

A.    Sixth Cause of Action (Retaliation)

Defendants argue that the retaliation cause of action includes only conclusory allegations and does not plead sufficient facts; and that the pleading cites only to Civ. Code § 1942.5, which prohibits the landlord from recovering possession of the property, causing the lessee to quit involuntarily, increase rent, or decrease services within 180 days of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

(Civ. Code, § 1942.5(a).)

On review of the FAC, the Court finds that the pleading does not include sufficient factual allegations to support a claim under Civ. Code § 1942.5. Specifically, the pleading does not include any allegations as to the dates that Defendants violated any of the five conditions of Civ. Code § 1942.5, which are necessary to calculate the 180-day retaliation period.

IV.       CONCLUSION

The Court thus sustains the demurrer as to the sixth cause of action with 20 days’ leave to amend.

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Motion to Strike

I.          LEGAL STANDARD

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See CCP §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (CCP § 436(a).) In granting a motion to strike made under CCP § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (CCP § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (CCP § 431.10.) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

II.        MEET AND CONFER

CCP § 435.5(a) provides that before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.

Although the Wessel Declaration cites to exhibits that have not been attached to the moving papers, the Court nonetheless finds that meet and confer requirements have been satisfied to code. (Decl. Wessel, ¶¶ 2-4.)

III.       MERITS

Defendants request the Court strike four portions of the FAC. Two of those requests are for paragraphs 53 and 56, which are allegations supporting the sixth cause of action. As the Court sustained the demurrer to the sixth cause of action with leave to amend, the Court will not address these two requests; the Court will, however, address the other two requests for the portions reading “intentionally” and “intentional” in paragraph 33, as well as the Item 3 in the Prayer for Relief.

Defendants argue that the FAC’s claim for punitive damages is not supported by sufficient factual allegations.

On review of the FAC, the Court finds that the pleading does not allege sufficient facts to support punitive damage claims. Plaintiff alleges that Defendants knew about numerous habitability issues prior to Plaintiff having entered the lease agreement but concealed the conditions, and later retaliated against Plaintiff’s complaints through hostile acts, confrontational communications, illegal rent increases, and threats. (FAC, ¶¶ 12-18.) These allegations may be enough to support a conscious disregard for the safety of Plaintiff, which is sufficient where a defendant is aware of the probable consequences of his conduct and willfully fails to avoid such consequences. (See Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299.) However, the allegations are bare and not supported with sufficient facts for the Court to make this determination. Plaintiff also does not allege any facts supporting the intentionality of Defendants’ conduct.

The Court will not make a ruling on Item 3 in the Prayer for Damages due to the aforementioned grant of leave to amend.

IV.       CONCLUSION

The Court thus grants the motion to strike in part, as to the words “intentionality” and “intentional” in paragraph 33. The remainder of the motion is moot.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Carla Kralovic and Pattie Broom’s Demurrer and Motion to Strike came on regularly for hearing on August 12, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS GRANTED IN PART, AS TO THE WORDS “INTENTIONALITY” AND “INTENTIONAL” IN PARAGRAPH 33. THE REMAINDER OF THE MOTION IS MOOT.

IT IS SO ORDERED.

DATE:  August 12, 2022                               _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles