Judge: Frank M. Tavelman, Case: 22BBCV00494, Date: 2022-12-30 Tentative Ruling

Case Number: 22BBCV00494    Hearing Date: December 30, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER WITH MOTION TO STRIKE

ALLEGATIONS:

Plaintiffs Mehrdad Kaveh and Maryam Kaveh ("Plaintiffs") filed suit against Defendants Lujuan Lietzke, Lujuan Lietzke as Trustee of the Lietzke Family Trust (“The Trust”), and PRC Management Services, Inc. (collectively “Defendants”), alleging that Plaintiffs are tenants of 370 W. Alameda Avenue, #205, Burbank. California 91506 (“Subject Property”).  The Subject Property is alleged to be owned, managed, and controlled by Defendants. Plaintiffs allege that Defendants had notice of, and failed to remedy, substantial habitability issues, and retaliated and harassed Plaintiffs due to their complaints.

Plaintiff filed a Complaint on July 8, 2022, alleging five causes of action: (1) Breach of Contract for Breach of Warranty of Habitability; (2) Breach of the Implied Warranty of Habitability – Civil Code § 1942.4; (3) Negligence; (4) Retaliation – Civil Code § 1942.5; and (5) Harassment – Civil Code § 1942.5.

HISTORY:

On November 14, 2022, the Court received the Demurrer filed by Lujuan Lietzke as an individual and as Trustee of The Trust (“Lietzke Defendants”); Plaintiffs filed opposition on December 15, 2022; and Defendants’ filed a reply on December 22, 2022.

The Court received the Lietzke Defendants’ Motion to Strike on November 14, 2022; Plaintiffs filed opposition on December 15, 2022; and Defendants filed the reply on December 22, 2022.

RELIEF REQUESTED:

Defendants demur to the fourth and fifth causes of action in the complaint.

Defendants move to strike the following portions of the FAC:

1.      Paragraph 70, page 11, lines 14-15, "Plaintiffs are entitled to punitive damages pursuant to Civil Code, § 1942.5 (h)(2)";

2.      Paragraph 78, page 12, lines 20-21, "Plaintiffs are entitled to punitive damages pursuant to Civil Code, § 1942.5 (h)(2)”;

3. Prayer of Complaint, page 12, line 26, "For punitive damages under Civil Code section 1942.5 and as otherwise permitted by law.”

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.) However, this presumption 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).)

Defense counsel declares that the parties attempted to meet and confer, but did not come to an agreement; thus, this requirement is satisfied. (Decl. Coulston, ¶¶ 6-7.)

III.       MERITS

A.    Fourth Cause of Action (Retaliation under § 1942.5) - OVERRULED

The Lietzke Defendants argue that the retaliation cause of action is uncertain pursuant to Code of Civil Procedure §430.10(f) because it refers to the conduct of “defendants” without specifically identifying who did what action. Additionally, Lietzke Defendants argue that the complaint does not have facts that show retaliation.

Civil Code §1942.5(d) states that “it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee has lawfully organized or…has lawfully and peaceably exercised any rights under the law (emphasis added).”

Plaintiffs allege that Defendants “decreased services by refusing to properly repair and disinfect the area, so that Plaintiffs may use their air conditioning system. Defendants decreased services within 180 days of Plaintiffs’ written notices [to LADPH] regarding the substandard conditions.” (Complaint ¶ 66.) The complaint alleges that Defendants failed to clean out the crawl space that had been overrun with rodents, forcing Plaintiffs to seal their air conditioning vents, making the system unable to be used. (Complaint ¶ 23, 66.) Plaintiffs allege that Defendants decreased the services in retaliation because of Plaintiffs’ “complaints to both Defendants and LADPH regarding the substandard conditions of the Premises.” (Complaint ¶ 67.)

As a preliminary matter, the Court finds that the cause of action is sufficiently certain. A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) The Court does not find that this is the case here.

On review of the complaint, the Court finds that this pleading is sufficient to allege that, due to Plaintiffs exercising their rights as tenants by filing complaints with the LADPH, Defendants retaliated by decreasing the services to Plaintiffs, specifically by failing to repair and disinfect the crawl space. Plaintiffs argue that these facts only show that the rat infestation was difficult to eradicate and that more facts are necessary to plead a claim for retaliation. However, Defendants do not cite to any authority showing that a higher pleading standard is needed for this cause of action, and, taking these allegations as true, these allegations are sufficient.

Thus, the demurrer as to the fourth cause of action is overruled.

B.     Fifth Cause of Action (Harassment under § 1942.5) - SUSTAINED

The Lietzke Defendants argue that the fifth cause of action is uncertain pursuant to Code of Civil Procedure section 430.10(f) and that the complaint does not have facts that show harassment.

Plaintiffs allege: “To harass Plaintiffs for their continuous complaints to Defendants and government agencies regarding the uninhabitable conditions on the Premises, Defendants decreased services by refusing to properly repair and disinfect the area, so that Plaintiffs may use their air conditioning system. Defendants decreased services within 180 days of Plaintiffs’ written notices [to LADPH] regarding the substandard conditions.” (Complaint ¶ 74.) Plaintiffs allege that Defendants true motive for decreasing the services was to harass Plaintiffs out of the Premises. (Complaint ¶ 75.)

Civil Code section 1942.5 prohibits retaliation against a tenant who engages in protected activity. This statute does not explicitly set forth harassment, except for the activities outlined in the previous section, namely the statute prohibits “increas[ing] rent, decreas[ing] services, caus[ing] a lessee to quit involuntarily, bring[ing] an action to recover possession, or threaten[ing] to do any of those acts” or threatening to report the lessee to the immigration authorities. (Civ. Code § 1942.5(c), (d).)  

Essentially this cause of action in the complaint is duplicative of the retaliation cause of action. Plaintiffs do not allege distinguishable facts, nor do they cite to a different statute.

Thus, Defendants’ demurrer to the fifth cause of action is sustained with leave to amend.

IV.       CONCLUSION

The Court overrules the demurrer as to the fourth cause of action. The Court sustains the demurrer as to the fifth 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.

Defense counsel declares that the parties attempted to meet and confer, but did not come to an agreement; thus, this requirement is satisfied. (Decl. Coulston, ¶¶ 5-6.)

III.       MERITS

Defendants request the Court strike three portions of the complaint related to punitive actions. One of those requests is for paragraph 78, which is an allegation supporting the fifth cause of action. As the Court sustained the demurrer to the fifth cause of action with leave to amend, the Court will not address this request; the Court will, however, address the other two requests for striking of punitive damages.

Defendants argue that the complaint’s claim for punitive damages is not supported by sufficient factual allegations of fraud, oppression, or malice.  

Civil Code §1942.5 (h)(2) states “[a]ny lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following…(2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.”

On review of the complaint, the Court finds that the pleading does allege sufficient facts to support punitive damage claims. Plaintiff alleges that Defendants knew about the habitability issues but failed to act and ignored Plaintiffs pleas for help. (Complaint ¶¶ 12-24.) They also allege that Defendants intentionally decreased their services in retaliation for the filing complaints with the LADPH. (Complaint ¶ 67.).  Presuming the allegations are true, the acts describing a decrease in services in retaliation for the complaints is sufficient to justify the punitive damages provision of Civil Code §1942.5(h)(2). 

The Court finds this is a sufficient allegation of malice or oppression necessary to support the prayer for punitive damages.   The motion to strike this language relative to punitive damages is denied.

IV.       CONCLUSION

The Court thus denies the motion to strike in part, as to the claims of punitive damages in Paragraph 70 and the prayer of the complaint. 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 Lujuan Lietzke and Lujuan Lietzke as Trustee of the Lietzke Family Trust Demurrer and Motion to Strike came on regularly for hearing on December 30, 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 AS TO THE FOURTH CAUSE OF ACTION IS OVERRULED. THE DEMURRER AS TO THE FIFTH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS DENIED IN PART, AS TO THE CLAIMS FOR PUNITIVE DAMAGES IN PARAGRAPH 70 AND THE PRAYER.  THE MOTION TO STRIKE PUNITIVE DAMAGES IN PARAGRAPH 78 IS MOOT.

DEFENDANT, THE MOVING PARTY TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  December 30, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles