Judge Frank M. Tavelman, Case 21BBCV01056 2022-12-16 Tentative Ruling

TENTATIVE RULING

December 16, 2022

Los Angeles Superior Court Case # 21BBCV01056

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, a First Amended Complaint on January 31, 2022, and a Second Amended Complaint (“SAC”) on September 1, 2022. The SAC alleges six causes of action for (1) Tortious Breach of Warranty of Habitability; (2) Breach of the Covenant of Quiet Enjoyment; (3) Nuisance; (4) Negligence; (5) Breach of Contract; and (6) Retaliation.

The Court received the Demurrers filed by Defendants on October 3, 2022; the oppositions filed by Plaintiff on December 5, 2022; and the replies filed by Defendants on December 9, 2022.

The Court received the Motions to Strike filed by Defendants on October 3, 2022. The Court has not received any oppositions from Plaintiff. The Court received the replies filed by Defendants on December 9, 2022.

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, 1081.) 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.)

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 five days prior to the responsive pleading’s due date. The meet and confer should be by telephone or in person, to determine if the parties can resolve the objections to be raised. 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).)

The Court finds that meet and confer requirements have been satisfied to code. (Decl. Barnes, ¶¶¿2-3.)

to an appropriate agency as to tenantability of a dwelling, and if the lessee of a

dwelling is not in default as to the payment of rent, the lessor may not recover

involuntarily, increase the rent, or decrease any services within 180 days of any

(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.

On review of the SAC, the Court finds that the pleading does not include sufficient factual allegations to support a claim under any of the subsections set forth in Civil Code §¿1942.5(a). Plaintiff alleges in Paragraph 12 of his SAC the subject property lacked the “minimum California State requirements” during his tenancy; however, Plaintiff fails to provide dates or general timeframes as to the purported habitability issues specified therein. Plaintiff further alleges that during his tenancy, he made written and verbal complaints regarding conditions on the subject property such as noxious smells, rodent infestations, faulty plumbing, gas leaks and filth; again, though, Plaintiff fails to provide any details as to when these complaints occurred. (Id., ¶ 13.) Plaintiff alleges that there was “a substantial gas leak in August 2020.” (Id., ¶ 15.) Plaintiff then alleges that “[o]n or about February 9, 2021,” he emailed Defendants “about an on-going gas leak and major plumbing issue at the property” (SAC, ¶ 19) and that on February 10, 2021 he made a verbal complaint to Broom (Id., ¶ 20). Without more specific factual information, however, it cannot be determined whether either of the alleged complaints actually affected the tenantability of the unit. Further, Plaintiff fails to specify what his alleged “verbal complaint” to Broom entailed.

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

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.)

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.

The Court finds that meet and confer requirements have been satisfied to code. (Decl. Barnes, ¶¶¿2-3.)

Defendants request the Court strike four portions of the SAC. One of those requests is for Paragraph 60, which is contained within the sixth cause of action. Since the Court sustained the demurrer to the sixth cause of action with leave to amend, the request is moot. However, the Court will address the other three requests for the portions reading “intentionally” and “intentional” in Paragraphs 14, 18, 37 and 60, as well as the portions reading “willfully, knowingly, and purposefully,” “intended” and “and substantially harass” in Paragraphs 22, 57 and 60, and Item 3 in the Prayer for Relief.

Defendants argue that the SAC’s claim for punitive damages is not supported by sufficient factual allegations. On review of the SAC, 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. (SAC, ¶¶¿14-17.) These allegations may be enough to support a conscious disregard for the safety of Plaintiff, which is sufficient when a defendant is aware of the probable consequences of the 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 thus grants the motion to strike in part, as to the portions reading “intentionally” and “intentional” in Paragraphs 14, 18, 37 and 60, as to the portions reading “willfully, knowingly, and purposefully,” “intended” and “and substantially harass” in Paragraphs 22, 57 and 60, and as to Item 3 in the Prayer for Relief. The motion is otherwise denied as moot.

The Court acknowledges Defendants’ argument concerning leave to amend, especially given that the Demurrer and Motion to Strike are to a Second Amended Complaint; however, "California courts have 'a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.' [Citation omitted.] Indeed, 'it is a rare case in which 'a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case.' [Citation and internal quotations omitted.]" (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158 [noting the fact that the party had already amended his pleading twice before was not by itself grounds to deny leave to amend again].) As such, the Court will permit leave to amend permitting Plaintiff to file a Third Amendment Complaint should Plaintiff chose to do so. However, if Plaintiff is unable to plead sufficient facts, in the Third Amended Complaint, the reasonable inference is that Plaintiff is unable to do so. Plaintiff is forewarned that the Court will be hesitant to permit a Fourth Amended complaint absent good cause.

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.

Defendants Carla Kralovic and Pattie Broom’s Demurrer and Motion to Strike came on regularly for hearing on December 16, 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 MOTION TO STRIKE IS GRANTED IN PART, AS TO THE PORTIONS READING “INTENTIONALLY” AND “INTENTIONAL” IN PARAGRAPHS 14, 18, 37 AND 60, AS TO THE PORTIONS READING “WILLFULLY, KNOWINGLY, AND PURPOSEFULLY,” “INTENDED” AND “AND SUBSTANTIALLY HARASS” IN PARAGRAPHS 22, 57 AND 60, AND AS TO ITEM 3 IN THE PRAYER FOR RELIEF. THE MOTION IS OTHERWISE DENIED AS MOOT.

[1] Defendants’ respective demurrers are identical and are analyzed together.

[2] Defendants’ respective motions to strike are identical and are analyzed together.

Demurrers
MP:	Defendants Carla Kralovic; Pattie Broom
RP:	Plaintiff Ori Lahav

MTS
MP:	Defendants Carla Kralovic; Pattie Broom
RP:	Plaintiff Ori Lahav (no oppositions)