Judge: Frank M. Tavelman, Case: 22BBCV00416, Date: 2022-09-02 Tentative Ruling

Case Number: 22BBCV00416    Hearing Date: September 2, 2022    Dept: A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS:

Rogelia Barrera (“Barrera”) and Carmen Jaime (“Jaime”, and together, “Plaintiffs”) filed suit against Silvia Torres (“Silvia”) and Miguel Torres (“Miguel”, and together, “Defendants”), alleging that Plaintiffs are tenants of the property located at 11319 Valerio Street, Sun Valley, California 91352 (“Subject Property”), which is owed by Defendants. Plaintiffs allege that they were exposed to numerous habitability issues during their tenancy and notified Defendants of these issues; but that despite this notice, Defendants collected illegal rent from Plaintiffs.

Plaintiff filed a Complaint on June 6, 2022, alleging seven causes of action: (1) Violation of Civ. Code § 1942.4; (2) Tortious Breach of the Warranty of Habitability; (3) Breach of the Covenant of Quiet Enjoyment; (4) Nuisance; (5) Negligence; (6) Intentional Interference with Estate (Civ. Code § 789.3); and (7) Violations of LAMC 445.33, Tenant Harassment.

HISTORY:

The Court received the Demurrer filed by Defendants on July 29, 2022; and the Motion to Strike filed by Defendants on July 27, 2022; the opposition to both matters, filed by Plaintiffs, on August 22, 2022; and the reply to both matters, filed by Defendants, on August 25, 2022.

RELIEF REQUESTED:

Defendants demur to the first, fourth, sixth, and seventh causes of action in the Complaint.

Defendants move to strike the following portions of the Complaint:

1. Plaintiff’s demand for attorney’s fees

2. Plaintiff’s demand for punitive and exemplary damages

3. Prayer for relief for exemplary and punitive damages

4. Prayer for relief for attorney’s fees.

ANALYSIS:

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. (CCP § 430.41.) 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) & 435.5(a)(4).)

The Court finds that meet and confer requirements have been satisfied to code. (Decl. Prado, ¶¶ 3-6.)

III.       MERITS

A.    First Cause of Action (Violation of Civ. Code § 1942.4)

Defendants argue that the Complaint does not state a cause of action for violation of Civ. Code § 1942.4 because the statute requires every element listed in the statute.

Civ. Code § 1942.4 provides, in relevant part:

(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

Defendants are correct in their argument that Complaint does not allege elements three or four of the statute. As all four conditions are required to allege a violation of Section 1942.4, the Court thus sustains the demurrer as to the first cause of action, with 20 days’ leave to amend.

B.     Fourth Cause of Action (Nuisance)

Although the Complaint does not specify whether it is alleging a cause of action for public or private nuisance, based on the substantive allegations presented, the Court will assume Plaintiff alleges a private nuisance claim.

To allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. (See Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.) 

The three elements of private nuisance claims are that the alleged nuisance activities cause (1) an interference with the plaintiff’s use and enjoyment of their property, (2) that the invasion must be substantial such that actual damages occur, and (3) that the interference must be unreasonable. (See, e.g., Wilson v. Southern California Edison Co. (2018) 21 Cal. App. 5th 786, 802-03 (As to the unreasonable prong, the interference “must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’”).) The standard is objective and fundamentally a question of fact. (Ibid.) As to the "substantial actual damages" prong, "[t]he [Restatement of the Law, Seconds, Torts, § 821F] recognizes the same requirement as the need for proof of "significant harm" [citation omitted], which it variously defines as "harm of importance" and a "real and appreciable invasion of the plaintiff's interest [citation omitted] and an invasion that is "definitely offensive, seriously annoying or intolerable" [citation omitted].

Defendants argue that the facts underlying the nuisance claim are identical to the facts underlying the negligence claim, and so the fourth cause of action is a duplicate claim.

On review of the Complaint, the Court finds that the nuisance cause of action is not duplicative of the negligence cause of action, as a nuisance requires a different element, specifically, that Defendants “intentionally cause to exist” a nuisance. (Complaint, ¶ 38.) Despite the nuisance cause of action and the negligence cause of action relying on the same facts, the separate requirement of intentional conduct is sufficient to allege nuisance as a separate claim. However, the Complaint does not allege any factual allegations supporting the conclusory allegation that Defendants engaged in intentional conduct.  It seems to have been plead in the alternative, without supporting facts.

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

C.     Sixth Cause of Action (Intentional Interference with Estate)

Civ. Code § 789.3 provides, in part:

(a) A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.

(b) In addition, a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully:

(1) Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device;

(2) Remove outside doors or windows; or

(3) Remove from the premises the tenant’s personal property, the furnishings, or any other items without the prior written consent of the tenant, except when done pursuant to the procedure set forth in Chapter 5 (commencing with Section 1980) of Title 5 of Part 4 of Division 3.

Defendants argue that the sixth cause of action lacks sufficient facts to support the cause of action, and further, that the claim is ambiguous and unintelligible.

Although the Complaint alleges relatively bare allegations, the pleading does allege that Defendants violated Civ. Code § 789.3 by causing the interruption or termination of various utilities, and by preventing Plaintiffs from reasonably accessing the property, as laid out in the statute. (Complaint, ¶¶ 53-54.) This is sufficient to survive a demurrer.

The Court thus overrules the demurrer as to the sixth cause of action.

D.    Seventh Cause of Action (Violation of LAMC 445.33, Tenant Harassment)

LAMC 45.33 is a tenant harassment statute that prohibits landlords from knowingly and willfully committing certain conduct against tenants that serves no lawful purpose.

On review of the Complaint, the Court finds that the pleading alleges violations of some of the 16 stated actions listed under LAMC 45.33 in a general and conclusory manner; it makes no attempt to specify what specific conduct violated what specific provision of the law. Further, the pleading does not allege that Defendants performed these actions without lawful excuse, or that they willfully committed this conduct.

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

IV.       CONCLUSION

The Court thus sustains the demurrer as to the first, fourth, and seventh causes of action, with 20 days’ leave to amend; and overrules the demurrer as to the sixth cause of action.

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Motion to Strike

First, the Court notes that the notice provision of the motion to strike does not comply with CRC Rule 3.1322(a), which requires that a motion to strike “quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.”

The motion to strike requests the Court strike Plaintiff’s demand for attorney fees and punitive and exemplary damages. These matters envelope the fourth and seventh causes of action, to which the Court has sustained a demurrer and granted leave to amend. The Court thus takes the motion to strike off-calendar as 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 Silvia Torres and Miguel Torres’ Demurrer and Motion to Strike came on regularly for hearing on September 2, 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 AS TO THE FIRST, FOURTH, AND SEVENTH CAUSES OF ACTION WITH LEAVE TO AMOEND; AND OVERRULED AS TO THE SIXTH CAUSE OF ACTION.

THE MOTION TO STRIKE IS TAKEN OFF-CALENDAR AS MOOT.

IT IS SO ORDERED.

DATE:  September 2, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles