Judge: Frank M. Tavelman, Case: 23BBCV00574, Date: 2023-09-15 Tentative Ruling

Case Number: 23BBCV00574    Hearing Date: September 15, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS:

Jeanette Jogiel (“Plaintiff”) brings this action against Levon Filian (“Defendant”) in connection with an alleged mold issue in Plaintiff’s apartment. Plaintiff alleges she began experiencing adverse health conditions after moving in to 10941 Bloomfield St., N. Hollywood, CA, a properly currently owned by Defendant. The First Amended Complaint (“FAC”) contains causes of action for (1) General Negligence, (2) Premises Liability, (3) Breach of Contract, and (4) Intentional Infliction of Emotional Distress.

Defendant now demurs to each cause of action on the grounds that they fail to state sufficient facts, are uncertain/vague, and are each barred by the applicable statute of limitations. Plaintiff opposes and Defendant replies.

ANALYSIS:

I.            LEGAL STANDARD

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. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at 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 318.)

Pursuant to Code of Civil Procedure (“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.)

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 AND CONFER

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Latman Decl. ¶¶ 1-2.)

III.            MERITS

Statute of Limitations (1^st, 2^nd, 4^th COA) - Overruled

A demurrer on the ground of the bar of the statute of limitations must appear clearly and affirmatively upon the face of the complaint.  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)  Accordingly, “[a] general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations…. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.)

Defendant argues Plaintiff’s claims are barred by the applicable statute of limitations (“SOL”). The SOL for the negligence and premises liability causes of action are two years from the date of the injury. (C.C.P § 335.1) The SOL for breach of a written contract is four years from the date the contract was broken. (C.C.P. § 337).  

The FAC alleges Plaintiff moved into the premises in September of 2014 and began experiencing health issues soon after. (FAC p. 4.) Defendant argues the statute of limitations began to run at this time and had elapsed before the Defendant even came into possession of the property in 2021. (FAC p. 4.)  Defendant also argues against application of the delayed discovery rule in this instance because Defendant should have been aware of her cause of action in 2014.

Plaintiff argues Defendant’s demurrer impermissibly seeks adjudication of the facts in this case in claiming that Plaintiff’s claims are time barred. Plaintiff also argues the demurrer ignores her claim that she first suspected the apartment was the cause of her health issues in 2022. (FAC p. 4.) Although Plaintiff does not specifically invoke the delayed discovery rule, her opposition still puts forth its basic tenants.

Under the delayed discovery rule, the SOL on a claim begins to run when plaintiff suspects or should suspect that her injury was caused by wrongdoing. (Metabyte, Inc. v. Technicolor S.A. (2023) 94 Cal.App.5th 265.) A plaintiff has reason to discover a cause of action when she has reason at least to suspect a factual basis for its elements. (Id.) Generally, resolution of the delayed discovery rule is a question of fact. (Id.)

The Court does not find that the FAC on its face “clearly and affirmatively” establishes the running of these statutes. (See Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) The FAC contains no factual allegations which affirmatively establish that she was aware of the cause of her injuries in 2014. The FAC explicitly avers that Plaintiff did not begin to suspect the cause of her injury until 2022, leaving her filing well within the SOL. Whether Plaintiff suspected the property to be the cause of her injuries earlier than this date is a factual determination inappropriate upon demurrer.

As to these causes of action, the demurrer is overruled as applicable to the statute of limitations. 

General Negligence & Premises Liability (1^st & 2^nd COA) - Overruled

In order to state a claim for negligence, Plaintiff must allege the elements of (1) the existence of a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in an injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Defendant argues the FAC contains insufficient facts to state either of these causes of action, Specifically, Defendant argues Plaintiff fails to allege how the incidents were foreseeable to sustain a claim under Civil Code § 1714. Defendant cites to no authority that Plaintiff must include such allegations to survive a demurer.

As it stands, the FAC alleges Defendant owed a duty of care in his ownership of the property, that Defendant breached that duty by his negligence in maintaining the premises, and that Defendant’s breach proximately caused Plaintiff’s injuries. These facts are sufficient to state a claim for negligence and premises lability. As such, the demurrer is OVERRULED as to the first and second causes of action

Breach of Contract (3^rd COA) - Overruled

To state a cause of action for breach of contract, Plaintiff must be able to establish: (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendant argues the FAC makes no factual allegations as to Defendant’s breach of the lease agreement. A review of the FAC shows that Plaintiff alleges Defendant failed “…to timely/properly maintain, remediate & repair the Property and respond to complaints of water intrusion, moisture and/or mold. As a result, the Property became contaminated w/ allergenic and/or asthma inducing dust mites, bacteria and allergenic and/or toxic mold, and/or allergenic fungal organisms which caused the Property to become uninhabitable and unsafe to live in, in violation of H&S Code Sec. 17920.3 and C.C. Sec. 1941, et. seq.” The Court finds this factual allegation is sufficient to allege a breach of the lease agreement. As such, the demurrer is OVERRULED as to the third cause of action.

Intentional Infliction of Emotional Distress (4^th COA) – Overruled

The elements for the tort of intentional infliction of emotional distress 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].)

Defendant argues the FAC does not sufficiently allege extreme and outrageous conduct required for a cause of action for intentional infliction of emotional distress (“IIED”). The Court disagrees, as courts have found allegations of failure to remediate mold related issues to constitute extreme and outrageous conduct. In Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, plaintiffs repeatedly complained of a mold issue and defendant landlord refused to remediate. The trial court in Burnett granted defendant’s 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, citing Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.)

Here, Plaintiff has alleged Defendant’s refusal to mitigate mold related issues despite complaints about them. On demurrer these factual allegations are sufficient to sustain Plaintiff’s cause of action. Whether Plaintiff can ultimately evidence such failure to remediate is a question for the trier of fact. As such, the demurrer is OVERRULED as to the fourth cause of action.

Motion to Strike

Defendant moves to strike page three paragraph 14 of the FAC which requests punitive damages according to proof.

“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.)

Here, Plaintiff alleges Defendant intentionally refused to complete a mold remediation project at the premises to prevent Plaintiff from moving back in. (FAC p. 7.)  Plaintiff also alleges Defendant refused to provide heat and gas to the apartment. (Id.) Lastly, Plaintiff alleges Defendant intentionally misrepresented the scope of the mold issue to Plaintiff’s insurance agent. (Id.) The Court finds these allegations sufficient to support a request for punitive damages. Plaintiff clearly alleges willful behavior of the Defendant to prevent her from occupying the premises. Plaintiff also clearly alleges that this behavior was conducted for the purpose of retaliating against her for reporting the mold. The Court finds the allegations of willful retaliation speaks to the potential of despicable behavior. Whether Plaintiff can make such a showing at trial remains to be seen, but her claims for punitive damages are not subject to a motion to strike.

As such, the Motion to Strike punitive damages is DENIED.

RULING:

In the event the parties request 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

Levon Filian’s Demurrer and Motion to Strike came on regularly for hearing on September 15, 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 DEMURRER IS OVERRULED AS TO EACH CAUSE OF ACTION.

THE MOTION TO STRIKE IS DENIED.

PLAINTIFF TO GIVE NOTICE, UNLESS ALL PARTIES WAIVE NOTICE.

IT IS SO ORDERED.

DATE:  September 15, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles