Judge: Frank M. Tavelman, Case: 21STCV33917, Date: 2023-04-14 Tentative Ruling
Case Number: 21STCV33917 Hearing Date: April 14, 2023 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
TENTATIVE
RULING
APRIL 14,
2023
DEMURRER
AND MOTION TO STRIKE
Los Angeles Superior Court
Case # 21STCV33917
|
MP: |
Remedy Investors 2, LLC and Yale
Management Services, Inc. (Defendants) |
|
RP: |
Ezekio Madamba, Jaiden Madamba,
Genevy Marquez, Jeremiah Marquez, Delawndra Rogers, Nyah Rogers, Zoe Rogers, and
Esmeralda Marquez. (Plaintiffs) |
ALLEGATIONS:
On
September 14, 2022, Ezekio Madamba,
individually and as guardian ad litem for Jaiden Madamba, Genevy Marquez,
Jeremiah Marquez, Delawndra Rogers, Nyah Rogers, Zoe Rogers; and Esmeralda
Marquez, individually (collectively “Plaintiffs”) filed suit against Remedy
Investors 2, LLC and Yale Management Services, Inc. (collectively
“Defendants”). Plaintiffs allege they experienced complications regarding a
bedbug infestation while they were tenants of Defendants.
The Complaint
contains 11 causes of action for (1) Breach of Warranty of Habitability
(Violation of Civil Code § 1941.1), (2) Breach of Warranty of Habitability
(Health & Safety Code § 17920.3), (3) Breach of Warranty of Habitability
(Violation of Civil Code § 1942.4), (4) Negligence - Premises Liability, (5)
Nuisance, (6) Battery (7) Intentional Infliction of Emotional Distress, (8)
Negligent Infliction of Emotional Distress, (9) Breach of Contract, (10) Breach
of Covenant of Quiet Enjoyment, and (11)
Unfair Business Practices (Violation of Business and Professions Code §17200,
et. seq.).
HISTORY:
On
December 12, 2022, Defendants filed their Demurrer and Motion to Strike. On April
3, 2022, Plaintiffs filed their Opposition. On April 7, 2023, Defendants filed
their Reply.
RELIEF
REQUESTED
Defendants demur to
the following causes of action:
(1) Breach of Warranty of Habitability (Violation of Civil
Code § 1941.1)
(2) Breach of Warranty of Habitability (Health & Safety
Code § 17920.3)
(3) Breach of Warranty of Habitability (Violation of Civil
Code § 1942.4)
(5) Nuisance
(6) Battery
(7) Intentional Infliction of Emotional Distress
(8) Negligent Infliction of Emotional Distress
(10) Breach of Covenant of Quiet Enjoyment
Defendants
move to strike the following sections of the Complaint requesting attorney’s
fees.:
·
Paragraph
83, p. 15, lines 3-8 (First Cause of Action)
·
Paragraph
84, p. 15, lines 13-14 (First Cause of Action)
·
Paragraph 103, p. 19, lines 9-11 (Third Cause of Action)
·
Paragraph 129, p. 23, lines 14-16 (Fifth Cause of Action)
·
Paragraph 130, p. 23, lines 17-18 (Fifth Cause of Action)
·
Paragraph 131, pp. 23-24, lines 19-3 (Fifth Cause of Action)
·
Paragraph
134, p. 24, lines 13-17 (Fifth Cause of Action)
·
Paragraph
135, p. 24, lines 18-28 (Fifth Cause of Action)
·
Paragraph
178, p. 30, lines 20-22 (Ninth Cause of Action)
· “Prayer for Relief,” Paragraph 199, p. 33:
Defendants
also move to strike the following section of the Complaint requesting punitive
damages:
·
Paragraph 1, p. 2, lines 7
·
Paragraph 85, p. 15, lines 15-17 (First Cause of Action)
·
Paragraph 86, p. 15, lines 18-22 (First Cause of Action)
·
Paragraph 88, p. 16, lines 5-9 (First Cause of Action)
·
Paragraph 128, p. 23, lines 5-13 (Fifth Cause of Action)
·
Paragraph 181, p. 31, lines 26-28 (Tenth Cause of Action)
·
Paragraph 188, p. 31, lines 26-28 (Tenth Cause of Action)
·
“Prayer for Relief,” Paragraph 200, p. 33
Finally, Defendant moves to strike Plaintiffs’ request for
injunctive relief in the “Prayer for Relief”. (Compl. ¶ 201.)
ANALYSIS:
I.
LEGAL
STANDARD
Demurrer
The grounds for a demurrer must appear on the
face of the pleading or from judicially noticeable matters. (C.C.P. §
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 C.C.P. §§ 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 without leave to amend 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.)
Motion to Strike
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 C.C.P. §§ 435, 436, and 437.) The proper procedure to
attack false allegations in a pleading is a motion to strike. (C.C.P. §
436(a).) In granting a motion to strike made under C.C.P. § 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.” (C.C.P. § 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. (C.C.P. § 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.” (C.C.P. § 436 (b).)
II.
MEET & CONFER
C.C.P. §
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.
C.C.P. §
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.
Failure
to meet and confer is not grounds to overrule or sustain a demurrer, or grant
or deny a motion to strike. (C.C.P. §§ 430.41(a)(4), 435.5(a)(4).)
Upon
review of the record the Court finds that meet and confer requirements have
been satisfied to code. (Hunter Decl., ¶¶ 3-7.)
III.
MERITS
Implied Warranty of
Habitability Generally
To
establish a breach of the implied warranty of habitability, Plaintiffs must
establish (1) “the existence of a material defective condition affecting the
premises’ habitability,” (2) “notice to the landlord of the condition within a
reasonable time after the tenant’s discovery of the condition,” (3) “the
landlord was given a reasonable time to correct the deficiency, and” (4)
“resulting damages.” (Erlach v. Sierra Asset
Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)
Defendants concede that
Plaintiffs have adequately alleged a cause of action for breach of implied
warranty of habitability, but demur to Plaintiffs’ categorization of this claim
as three separate causes of action.
First Cause of Action - Civil
Code § 1941.1- Sustained with Leave to Amend
Defendants argue Plaintiffs’
first cause of action for breach under Civil Code § 1941.1 is improper because Civil
Code § 1941.1 does not provide a private right of action. Defendants argue
Civil Code § 1941.1 merely provides a list of characteristics of habitability
and is not an independent statutory cause of action. Defendants also argue that
Plaintiffs’ allegations under Code of Civil Procedure § 1021.5 are improper
because Plaintiffs do not invoke a public interest right.
In their Opposition, Plaintiffs
argue the Complaint contains allegations the standards in Civil Code § 1941.1
were violated. However, Plaintiffs do not engage with Defendants’ argument that
Civil Code § 1941.1 does not create a private right of action. Plaintiffs
further argue the allegations of failure to abate the bedbug problem does
implicate a public right. Plaintiffs argue the bedbug problem was a public
nuisance and was injurious to the public at large.
The Court agrees Civil Code
§ 1941.1 does not create an independent cause of action. The plain language of
the statue does not provide a private right of action. Civil Code § 1941
violations may be used as evidence of a breach of the implied warranty of
habitability, but they do not create an independent cause of action.
The Court finds Plaintiffs
have not adequately pled their claim under Code of Civil Procedure § 1021.5. “It
is the duty of the trial court, exercising ‘its traditional equitable
discretion ... [to] realistically assess the litigation and determine, from a
practical perspective, whether or not the action served to vindicate an
important right so as to justify an attorney fee award under a private attorney
general theory.’ (Citation).” (Bui v. Nguyen (2014) 230 Cal.App.4th
1357, 1366.) The moving party bears the burden of establishing each
prerequisite to an award of attorney fees under Code of Civil Procedure § 1021.5.
(Id. at 1365.)
The strength or societal
importance of a particular right generally is determined by realistically
assessing the significance of that right in terms of its relationship to the
achievement of fundamental legislative goals. (Robinson v. City of
Chowchilla (2011) 202 Cal.App.4th 382, 393.)
Here, Plaintiffs allege in
the Complaint, “Plaintiffs will also seek and are entitled to recover attorney's
fees to secure an important right affecting the public interest in connection
with this cause of action under the private attorney general doctrine (C.C.P. §
1021.5) because any judgment or settlement with the Defendants confers a
significant benefit upon a large class of persons.” (Compl. ¶ 83.) Plaintiffs
do not allege what the public right is Defendants have violated. As such, the
Court cannot determine whether the right is of the type as to qualify for
relief under Code of Civil Procedure § 1021.5. Plaintiffs may be able to allege
facts supporting their allegation, but they have not done so here.
As such, the Court SUSTAINS
the Demurrer to the first cause of action with 20 days leave to amend.
Second Cause of Action -
Health and Safety Code § 17920.3- Sustained with Leave to Amend
Defendants argue
Plaintiffs’ second cause of action under Health and Safety Code § 17920.3 is
improper because Health and Safety Code § 17920.3 does not provide a private
right of action. Plaintiffs argue Defendants’ failure to provide pest control
services at the property violated Health and Safety Code § 17920.3, but do not
address the argument that Health and Safety Code § 17920.3 does not provide a
private right of action.
Health and Safety Code §
17920.3 provides a list of conditions under which a building may be declared
substandard. Plaintiffs have pled violations of Health and Safety Code §
17920.3. However, these violations serve as evidence of a breach of the implied
warranty of habitability and not an independent cause of action.
As such, Court SUSTAINS the
Demurrer to the first cause of action with 20 days leave to amend.
Third Cause of Action- Civil
Code § 1942.4- Overruled
Under Civil Code § 1942.4,
a residential landlord may not demand or collect rent, increase rent, or serve
a three-day notice to pay rent or quit if (1) the dwelling is untenantable as
defined under § 1941.1, is in violation of § 17920.10 of the Health and Safety
Code, or is deemed and declared substandard under § 17920.3 of the Health and
Safety Code; (2) a public officer inspects the premises and gives the landlord
written notice that it must abate the nuisance or repair the property; (3) the
conditions have not been remedied within 35 days of the notice; and (4) the
substandard conditions were not caused by the tenant's acts or omissions. (Erlach
v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298.)
Defendants argue Plaintiffs’
third cause of action has insufficiently pled a violation of Civil Code §
1942.4. Defendants argue Plaintiffs have not alleged Defendants were cited, Defendants
demanded rent after being cited, and/or that Defendants’ alleged delay in
remediating the bedbugs was without good cause.
The Complaint alleges:
“…the County of Los Angeles
inspected the Subject Unit for bed bugs and discovered bed bugs. The County of
Los Angeles Department of Public Health prepared an Official Inspection Report
indicating “Corrective Action: Eliminate bedbugs and all evidence of bedbugs by
safe, legal and effective methods.” The bed bug infestation was not resolved
within 35 days of this Notice. In fact, there was a re-inspection done on
8/28/2020 during which time the inspector noted that the violations from
7/31/2020 were still outstanding.”
(Compl. ¶ 101.)
The Court finds Plaintiffs
have sufficiently pled a cause of action under Civil Code § 1942.4. Plaintiffs
have alleged the dwelling was untenantable under the Health and Safety Code.
Plaintiffs have alleged a public officer inspected the dwelling and issued
notice to Defendants to abate the bedbug issue. Plaintiffs allege the failure
of Defendants to remedy the bedbug situation was due to a company policy of
maintaining apathy or denial, speaking to Defendants’ lack of good cause. Plaintiffs
have alleged facts as to all elements of a cause of action under Civil Code §
1942.4.
As such, the Court
OVERRULES the Demurrer to the third cause of action.
Fifth Cause of Action-
Nuisance - Sustained with Leave to Amend
Defendants demur to
Plaintiffs’ cause of action for nuisance on grounds that it is duplicative of
their negligence claims. Defendant cites to El Escorial Owners' Assn. v. DLC
Plastering, Inc. (2007) 154 Cal.App.4th 1337, which held “Where
negligence and nuisance causes of action rely on the same facts about lack of
due care, the nuisance claim is a negligence claim.” Defendants argue
Plaintiffs have alleged no separate set of facts to sustain a nuisance claim.
Plaintiffs argue they have
alleged a nuisance. Plaintiffs allege failure to abate the bedbugs had a deleterious
effect on the public while at the same time injuring Plaintiffs and ultimately
constitutes a nuisance. Plaintiffs do not address Defendants’ argument that the
facts which support nuisance must stand independent of facts about lack of due
care.
The Court finds the facts
which support Plaintiffs’ negligence and nuisance claims concern the same lack
of care. The Complaint contains a detailed explanation of how the conditions of
Plaintiffs’ dwelling constituted a nuisance under Civil Code §
3479 (Compl. ¶¶ 119-125.) However, the Complaint does not contain any
facts which separate the nuisance cause of action from negligence. As per El Escorial Plaintiffs’ nuisance claim is duplicative. Plaintiffs may be able
to plead separate facts as to nuisance, but they have not done so here.
As such, the Court SUSTAINS
the Demurrer to the fifth cause of action with 20 days leave to amend.
Sixth Cause of Action –
Battery – Sustained without Leave to Amend
The
elements of civil battery are: (1) defendant intentionally performed an act
that resulted in a harmful or offensive contact with the plaintiff's person;
(2) plaintiff did not consent to the contact; and (3) the harmful or offensive
contact caused injury, damage, loss or harm to plaintiff. (Piedra v. Dugan
(2004) 123 Cal.App.4th 1483, 1495.)
Defendants
argue they did not “touch” Plaintiffs. Defendants also argue they lacked the
requisite intent to commit battery. To the extent that Defendants claim they
did not “touch” Plaintiffs as a matter of law, case law indicates otherwise. “There is no requirement of direct unlawful
contact with the person of the victim in a tort context.” (In re B.L. (2015)
239 Cal.App.4th 1491, 1496.) To determine whether Defendants touched Plaintiffs
within the meaning of a civil battery requires significant attenuation, however
it is not impossible as a matter of law.
However,
the Court finds Plaintiffs cannot allege facts as to the element of intent.
Plaintiffs cite to Ashcraft v. King (1991) 228 Cal.App.3d 604, which
held “In an action for civil battery the element of intent is satisfied if the
evidence shows defendant acted with a “willful disregard” of the plaintiff's
rights.” In Ashcraft the Court of Appeals found the act of administering
blood transfusions not consented to the patient was an act committed in willful
disregard of the patient’s rights. (Ashcraft supra, 228 Cal.App.3d 604,
at 613.) Plaintiff argues under Ashcraft their allegations of
willful disregard are sufficient to plead intentional behavior.
The
Court finds this argument unpersuasive. The holding in Ashcraft still
requires Defendant to commit an act. Here, Plaintiffs have not
alleged Defendants committed an act within the meaning of a cause of action for
battery. Defendants' failure to remediate the bedbugs is an omission and not an
action intended to cause offensive contact with Plaintiffs. Plaintiffs
do not allege Defendants intentionally created a bed bug infestation to
inflict injury by the bed bugs on them. The Court is aware of a Seventh
Circuit federal case where that court speculated that bed bugs could
"probably" be the basis of a battery claim where the defendant knew of the bed bug infestation,
failed to warn the plaintiff thereof and failed to take any remedial measures. (See Mathias v. Accor Economy Lodging, Inc. (7th Cir.
2003) 347 F.3d 672.) Such foreign authority is not binding on this Court, nor is
it factually analogous.
On a demurrer, the plaintiff bears the burden of establishing that
the pleading defect is reasonably capable of being cured. (Hendy v. Losse
(1991) 54 Cal.3d 723, 742.) Plaintiffs fail to do so.
As such
the Demurrer is sustained without leave to amend.
Seventh Cause of Action -
Intentional Infliction of Emotional Distress – Overruled
The elements of a prima
facie case for the tort of intentional infliction of emotional distress
(“IIED”) 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.)
Defendants argues
Plaintiffs have not alleged extreme and outrageous conduct by Defendants. Defendants
argue their alleged failure to rectify the bedbug situation is not extreme and
outrageous conduct as a matter of law. Defendants further argue their conduct
was not outrageous because bedbugs are carried from humans and can occur in
even the cleanest buildings. While Defendants cite to case law for the
definition of extreme and outrageous conduct, they point to no law which
supports their position that failure to rectify the bedbug issue is not extreme
and outrageous.
Plaintiffs argue intentional
failure to remediate a harmful building condition constitutes extreme and
outrageous behavior. Plaintiffs cite to Burnett v. Chimney Sweep (2004)
123 Cal.App.4th 1057, where plaintiffs repeatedly complained of a mold issue
and defendant landlord refused to remediate. The trial court in Burnett granted
defendants motion for judgment on the pleadings without leave to amend. The
Court of Appeals reversed the judgment, holding that whether the landlord’s refusal to rectify the mold issue
was extreme and outrageous was a question of fact for the jury. (Id. at
1069.) The Court of Appeals held that whether the failure to act was extreme
and outrageous presented a factual question. (Id., citing Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903.)
The Court finds Plaintiffs
have adequately alleged Defendants’ conduct may have been extreme or
outrageous. Plaintiffs allege they complained repeatedly about the bedbug
problem and the county of Los Angeles inspected the dwelling and issued notice
of the condition. Whether Defendants’ refusal to remediate the bedbug was
extreme and outrageous is a question of fact. As such, Plaintiffs have
adequately alleged extreme and outrageous conduct.
Defendants further argue
Plaintiffs have not alleged sufficient emotional distress. Defendant cites to Girard
v. Ball (1981) 125 Cal.App.3d 772, where the Court of Appeals held general
allegations of lost sleep and anxiety to be insufficient to support an IIED
claim. Defendants argue Plaintiffs’ allegations of emotional distress are
similarly insufficient.
The Court finds Girard is
distinguishable on both facts and procedure. The plaintiff in Girard claimed
emotional distress after receiving several calls demanding rental payments. (Girard
supra, 125 Cal.App.3d 772, at 777.) Girard concerned a motion
for summary judgment, meaning the Court of Appeals considered substantial
evidence in determining significant emotional injury. (Id. at 780.) The
Court of Appeals found plaintiff’s deposition testimony and failure to seek
medical treatment for his emotional distress to be dispositive of his claim. (Id.)
Here, the Court is not
considering any evidence of emotional distress, as a demurrer is limited to the
four corners of the complaint. Plaintiffs allege they have experienced discomfort,
annoyance, sleeplessness, inconvenience, humiliation, anxiety, and ongoing
mental and emotional distress. (Compl. ¶ 40.) The Court finds Plaintiffs have
sufficiently alleged emotional distress.
As such, the Court
OVERRULES the Demurrer to the seventh cause of action.
Eighth
Cause of Action – Negligent Infliction of Emotional Distress – Sustained with
Leave to Amend
Defendants argue Plaintiffs’ claim is
not actionable as there is no independent tort action for negligent infliction of emotional distress
(“NEID”). Defendants are correct that the doctrine of NEID is not
a separate cause of action. NEID simply allows certain
persons to recover damages for emotional distress only on a
negligence cause of action even though they were not
otherwise injured or harmed. (Marlene F. v. Affiliated Psychiatric Medical
Clinic, Inc. (1989) 48 Cal.3d 583, 589.)
Plaintiffs argue their
action may stand because they are “direct victims” of NEID. Direct victim cases are those in which the
plaintiff's claim of emotional distress is not based upon witnessing an injury
to someone else, but rather is based upon the violation of a duty owed directly
to the plaintiff.”
(Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182,
206.)
In dealing with “direct
victim” cases, the California Supreme Court has repeatedly stated the theory
does not create an independent cause of action. (See Potter v. Firestone
Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; Burgess v. Superior
Court (1992) 2 Cal.4th 1064, 1072; Christensen v. Superior Court
(1991) 54 Cal.3d 868, 884; Marlene F. v. Affiliated Psychiatric supra,
48 Cal.3d 583, 588.) Case law makes clear Plaintiffs argument as to “direct
victim” theory of NEID does not support an independent cause of action.
Courts have routinely held a demurrer
may be sustained to a cause of action where it is duplicative of another.
(See Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494,
501.) A demurrer can be sustained to a
cause of action as duplicative where it adds nothing to the complaint by way of
fact or theory or recovery. (Palm Springs Villas II Homeowners Association,
Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) Here, Plaintiffs’ cause of
action for NEID is premised on the exact same facts and the exact same theory
of negligence as their fourth cause of action for negligence by premises
liability. Plaintiffs’ claim for NEID is therefore duplicative of its cause of
action for negligence by premises liability.
To the extent Plaintiffs
seek emotional distress damages in
the eighth cause of action that are not already pled
in the fourth cause of action, the Court will permit Plaintiffs
to amend the fourth cause of action to include
such emotional distress damages.
Accordingly, the demurrer
to the eighth cause of action is sustained with leave to
amend.
Tenth Cause of Action – Breach
of Covenant of Quiet Enjoyment – Overruled
The elements of a claim for
breach of the covenant of quiet enjoyment are: (1) a lease agreement between
plaintiff and defendant; (2) absence of language contrary to the implied
covenant that tenant shall have quiet enjoyment and possession; (3) act or omission
of the landlord, or anyone claiming under the landlord, which “substantially
interfere[s] with a tenant[’]s right to use and enjoy the premises for the
purposes contemplated by the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005)
125 Cal.App.4th 578, 588-591.)
Defendant argues Plaintiffs
insufficiently pled their cause of action because Plaintiffs were not evicted
from the premises. Defendants cite Clark
v. Spiegel (1971) 22 Cal.App.3d
74. Defendants claim Clark held that a breach of covenant of quiet
enjoyment cause of action cannot lie unless there is an actual or constructive
eviction. Defendant argues Plaintiffs have not pled sufficient facts to support
the theory of constructive eviction.
The
Court finds Defendants’ reading of Clark is incorrect. The Court in Clark
stated “Eviction is a breach of the covenant of quiet enjoyment. There can
be no eviction, actual or constructive, if the lessee continues in the
possession of the premises.” (Clark supra, 22 Cal.App.3d 74, at 80.) Clark held eviction may
be a breach of the covenant of quiet enjoyment, not that it is the only
circumstance in which the covenant is breached.
Courts have distinguished between causes
of action for breach of covenant of quiet enjoyment and constructive eviction.
In Cunningham v. Universal Underwriters (2002) 98 Cal.App.4th 1141, the
court held “While a claim for breach of the covenant of quiet enjoyment is
similar to a constructive eviction claim, the critical difference is that the
latter claim may not be brought until the tenant has vacated the property.” Similarly,
the court in Ginsberg v. Gamson (2012) 205 Cal. App. 4th 873 held
“[B]reach of the implied covenant of quiet enjoyment can be understood as a
title encompassing claims for wrongful eviction, and also claims in which the
tenant's use of the premises is disturbed, but the tenant remains in possession.”
Case law clearly indicates that eviction, either actual or constructive, is not
a prerequisite to maintain a cause of action for breach of the covenant of
quiet enjoyment.
Defendants also argue
Plaintiffs have not alleged facts as to the extent of the habitability issues
or the period the condition existed. The Court finds both are alleged.
Plaintiffs repeatedly allege the effect of Defendants’ failure to remediate the
bedbugs had on their enjoyment of the dwelling. (Compl. ¶¶ 6, 40, & 42.) Plaintiffs also state the bedbugs
were an issue from October 2019 until their moving out in 2021. (Compl. ¶ 35.) Defendants point to no law to support their argument
that Plaintiffs must provide more detail than already provided on demurrer.
As such, the Court OVERRULES the
Demurrer to the tenth cause of action.
Motion to Strike
The following requests to
strike are mooted by virtue of the Court sustaining Demurrer with leave to
amend:
· Requests for Attorney’s Fees:
o Paragraph 83, p. 15, lines 3-8 (First Cause of
Action)
o Paragraph 84, p. 15, lines 13-14 (First Cause of
Action)
o Paragraph 129,
p. 23, lines 14-16 (Fifth Cause of Action)
o Paragraph 130,
p. 23, lines 17-18 (Fifth Cause of Action)
o Paragraph 131,
pp. 23-24, lines 19-3 (Fifth Cause of Action)
o Paragraph 134, p. 24, lines 13-17 (Fifth Cause of
Action)
o Paragraph 135, p. 24, lines 18-28 (Fifth Cause of
Action)
o Prayer for Relief,” Paragraph 199, p. 33
·
Requests for Punitive Damages:
o Paragraph 1, p.
2, lines 7
o Paragraph 85,
p. 15, lines 15-17 (First
Cause of Action)
o Paragraph 86,
p. 15, lines 18-22 (First
Cause of Action)
o Paragraph 88,
p. 16, lines 5-9 (First
Cause of Action)
o Paragraph 128,
p. 23, lines 5-13 (Fifth Cause of Action)
o “Prayer for
Relief,” Paragraph 200, p. 33
The following requests to strike remain to be
addressed:
·
Requests for Attorney’s Fees
o Paragraph 103,
p. 19, lines 9-11 (Third
Cause of Action)
o Paragraph 178, p. 30, lines 20-22 (Ninth Cause
of Action)
§ Breach of Contract
·
Punitive Damages
o Paragraph 181,
p. 31, lines 26-28 (Tenth Cause of Action)
o Paragraph 188,
p. 31, lines 26-28 (Tenth Cause of Action)
· Plaintiffs
request for injunctive relief in the “Prayer for Relief”. (Compl. ¶ 201.)
Attorney’s Fees:
Code of Civil Procedure §
1021 provides “Except as attorney's fees are specifically provided for by
statute, the measure and mode of compensation of attorneys and counselors at
law is left to the agreement, express or implied, of the parties; but parties
to actions or proceedings are entitled to their costs, as hereinafter provided.”
Defendants argue Plaintiffs
have not provided a statutory basis for their claim for attorney’s fees under
Civil Code § 1942.4. Plaintiffs argue they are entitled to attorney’s fees by
virtue of Code of Civil Procedure § 1021.5. Code of Civil Procedure § 1021.5
allows for an award of attorney’s fees if a party has shown the following:
· The party moving for fees is a successful party
in the action;
· The action resulted in the enforcement of an
important right affecting the public interest;
· A significant benefit, whether pecuniary or
nonpecuniary, was conferred on the general public or a large class of persons;
· The necessity and financial burden of private
enforcement make the award appropriate; and
· The fees should not in the interest of justice
be paid out of any recovery.
(Serrano v Stefan Merli
Plastering Co., Inc. (2011) 52 Cal. App. 4th 1018, 1020.)
As previously stated, the
Court finds Plaintiffs have not adequately alleged a public right is at issue
in this case. Plaintiffs may be able to allege these facts, but they have not
done so here.
As such, the motion to
strike
is GRANTED with 20 days leave to amend as to Paragraph
103, p. 19, lines 9-11 of the Complaint.
Defendants also argue
Plaintiffs request for attorney’s fees in reference to the Breach of Contract
cause of action is improper because the contract between them contains no
provision for attorney’s fees.
Civil Code § 1717(a)
provides “In any action on a contract, where the contract specifically provides
that attorney's fees and costs, which are incurred to enforce that contract,
shall be awarded either to one of the parties or to the prevailing party, then
the party who is determined to be the party prevailing on the contract, whether
he or she is the party specified in the contract or not, shall be entitled to
reasonable attorney's fees in addition to other costs.”
Code of Civil Procedure § 1021
and Civil Code § 1717(a) make clear that attorney’s fees are recoverable in an
action for breach of contract only if the contract includes an attorney’s fees
provision. Defendants argue the contract attached to the Complaint does not
contain such a provision. (Compl. Exh A.) Plaintiffs provide no rebuttal to
this argument in their opposition.
The Court finds Plaintiffs’
requests for attorney’s fees improper as related to their breach of contract action.
Given the lack of an attorney’s fees provision in the contract, Plaintiffs have
no claim to attorney’s fees for breach of contract. Further, Plaintiffs’ cause
of action for breach of contract pertains to contractual rights as between the
parties and not the public at large.
As such, the motion to
strike is GRANTED as to Paragraph 178, p. 30, lines 20-22 of the Complaint.
Punitive Damages:
“In order to state a prima facie claim for punitive damages, a complaint
must set forth the elements as stated in the general punitive damage statute,
Civil Code section 3294.” (Turman v. Turning Point of Central California,
Inc. (2010) 191 Cal.App.4th 53, 63.) These statutory elements include
allegations that the defendant has been guilty of oppression, fraud or malice.
(Id.)
“When there is no evidence the defendant intended to harm the
plaintiff, there must be evidence of conduct that is both willful and
despicable.” (Johnson & Johnson Talcum Powder Cases (2019) 37
Cal.App.5th 292, 332.) Conscious disregard for the safety of another may be
found “where the defendant is aware of the probable dangerous consequences of
his or her conduct and he or she willfully fails to avoid such consequences
(Citation).” (Id.) Despicable conduct is conduct which is “so vile,
base, contemptible, miserable, wretched or loathsome that it would be looked
down upon and despised by ordinary decent people (Citation).” (Id. at
333.) Such conduct has been described as having the character of outrage
frequently associated with crime. (Id.)
Defendants argue Plaintiffs have not alleged facts that Defendants’
behavior rises to the level of oppression, fraud, or malice. Defendants further
argue, even if Plaintiffs have shown malice, Plaintiffs have not pled facts
showing despicable conduct.
Plaintiffs argue Defendants’ willful failure to remediate the
bedbug issue constitutes conscious disregard for safety which equates to
malice. Plaintiffs further argue Defendants’ failure to remediate is despicable
behavior evidenced by their continuing to collect rent.
The Court finds Plaintiffs
have not pled facts that Defendants’ conduct was despicable. Plaintiffs make many
allegations speaking to the negligence and disregard of Defendants, but none of
the behavior appears to rise to the level of outrage required to support
punitive damages claim. Plaintiff may be able to allege facts which would
constitute despicable behavior, but they have not done so here.
As such, the motion to
strike is GRANTED with 20 days leave to amend as to Paragraph 181, p. 31, lines
26-28 and Paragraph 188, p. 31, lines 26-28 of the Complaint.
Injunctive Relief:
Defendants argue
Plaintiffs’ request for injunctive relief must be stricken because Plaintiffs
included no claim for injunctive relief in their complaint. Defendants further
argue Plaintiffs’ injunctive relief request is improper because Plaintiffs no
longer reside at Defendants’ property. Plaintiffs provide no response to these
arguments in their opposition.
Injunctive relief is
appropriate only when there is a threat of misconduct which is ongoing and
likely to recur. (People ex rel. Herrera v. Stender (2012) 212
Cal.App.4th 614, 630.) Further, injunctive relief has no application to wrongs
which have been completed absent a showing that past violations will probably
recur. (Id. at 631.)
Here, Plaintiffs state they
no longer live at Defendants’ property. Plaintiffs have not shown Defendants’
failure to remediate the bedbug situation continues to pose them harm.
As such, the motion to
strike is GRANTED as to the request for injunctive relief in Plaintiffs’ Prayer
for Relief.
IV.
CONCLUSION
The
Court SUSTAINS the Demurrer WITH leave to amend as to first, second, fifth, and
eighth cause of action with 20 days leave to amend. Note: The Court grants leave to amend the fourth
cause (Negligence) of action to the extent necessary as a result of the Court’s
ruling concerning the eighth cause of action (NIED).
The
Court SUSTAINS the Demurrer WITHOUT leave to amend as to sixth cause of action.
The
Court OVERRULES the Demurrer to the third, seventh and tenth cause of action.
The
motion to strike as to parts of the complaint to which the Demurrer has been
sustained with leave to amend are moot. The motion to strike is GRANTED
with 20 days leave to amend as to Paragraph
103, p. 19, lines 9-11 of the Complaint. The motion to strike is GRANTED as to Paragraph 178, p. 30, lines
20-22 of the Complaint. The motion to strike is GRANTED with 20 days leave to
amend as to Paragraph 181, p. 31, lines 26-28 and Paragraph 188, p. 31, lines
26-28 of the Complaint.
---
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
Remedy Investors 2,
LLC and Yale Management Services, Inc.’s Demurer and Motion to Strike came on regularly for hearing on April 14, 2023, 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 Court SUSTAINS the Demurrer WITH leave to amend
as to first, second, fifth, and eighth cause of action with 20 days leave to
amend. Note: The Court grants leave to
amend the fourth cause (Negligence) of action to the extent necessary as a
result of the Court’s ruling concerning the eighth cause of action (NIED).
The Court SUSTAINS the Demurrer WITHOUT leave to
amend as to sixth cause of action.
The Court OVERRULES the Demurrer
to the third, seventh and tenth cause of action.
THE
COURT GRANTS LEAVE TO AMEND THE FOURTH CAUSE OF ACTION TO THE EXTENT PLAINTIFFS
SEEK EMOTIONAL DISTRESS DAMAGES IN THE
EIGHTH CAUSE OF ACTION THAT ARE NOT ALREADY PLED IN THE
FOURTH CAUSE OF ACTION.
THE
MOTION TO STRIKE AS TO PARTS OF THE COMPLAINT TO WHICH THE DEMURRER HAS BEEN
SUSTAINED WITH LEAVE TO AMEND ARE MOOT.
THE
MOTION TO STRIKE
IS GRANTED WITH 20 DAYS LEAVE TO AMEND AS TO PARAGRAPH
103, P. 19, LINES 9-11 OF THE COMPLAINT.
THE
MOTION TO STRIKE IS GRANTED AS TO PARAGRAPH 178, P. 30, LINES 20-22 OF THE
COMPLAINT.
THE
MOTION TO STRIKE IS GRANTED WITH 20 DAYS LEAVE TO AMEND AS TO PARAGRAPH 181, P.
31, LINES 26-28 AND PARAGRAPH 188, P. 31, LINES 26-28 OF THE COMPLAINT.
THE
MOTION TO STRIKE IS GRANTED AS TO THE REQUEST FOR INJUNCTIVE RELIEF IN
PLAINTIFFS’ PRAYER FOR RELIEF.
IT IS SO
ORDERED.
DATE:
April 14, 2023 _______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of
Los Angeles