Judge: Frank M. Tavelman, Case: 24BBCV00276, Date: 2025-05-02 Tentative Ruling

Case Number: 24BBCV00276    Hearing Date: May 2, 2025    Dept: A

DEMURRER & MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Kimberly Moore (Plaintiff) brings this action against FC Holdings, LLC dba 10237 Commerce Ave Apartments (FC Holdings), Felicia Collins (Collins), Alicia Brockwell (Brockwell), Cats USA Pest Control, Inc. (Cats USA). Plaintiff’s claims stem from an alleged bedbug infestation in an apartment she rents from FC Holdings.

Plaintiff states causes of action for (1) Battery, (2) Negligence, (3) Intentional Infliction of Emotional Distress (IIED), (4) Statutory Breach of the Warranty of Habitability, (5) Violation of Bus. & Prof. Code § 17200, (6) Breach of Covenant of Quiet Enjoyment, (8) Violation of Civ. Code § 1942.3 [dismissed by plaintiff], (9) Violation of Civ. Code § 1942.4 [dismissed by plaintiff], (10) Negligent Violation of Statutory Duty to Maintain Habitable Conditions, (11) Breach of Contract, (12) Private Nuisance, (13) Public Nuisance.

Before the Court is a demurrer by FC Holdings and Collins to the first, third, eighth, ninth, and thirteenth causes of action on C.C.P. § 430.10(e) grounds. Also before the Court is a motion to strike Plaintiff’ request for punitive damages, also brought by FC Holdings and Collins. Brockwell, Brockwell represented by the same counsel as FC Holdings and Collins, joins both the demurrer and motion to strike.  For clarity sake, the Court’s ruling will refer to the demurrer and motion to strike as being brought by FC Holdings.  

The Court notes that, prior to this hearing, Plaintiff voluntarily dismissed her eighth and ninth causes of action. As such, the Court’s ruling need does not consider the demurrer as to those causes of action.

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. (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 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 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.                 MERITS

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 requirements were met here. (Dingilian Decl.)

Facts Alleged

Plaintiff has rented an apartment, identified as 10237 Commerce Ave. Apt. 7, Tujunga, CA 91042 (the Apartment) (Compl. ¶ 16.) The Apartment is part of a complex owned and operated by FC Holdings under the name 10237 Commerce Ave Apartments. (Compl. ¶ 5.) Collins and Brockwell are also alleged to be the owner/operator of the building, also doing business as 10237 Commerce Ave Apartments. (Compl. ¶¶ 6-7.)

Plaintiff alleges that on December 7, 2021, she received a note from management that bedbugs had been found in the laundry room of the building. (Compl. ¶ 17.) Management stated they intended to hire exterminators to spray the laundry room. Plaintiff further alleges that, on March 13, 2022, she was informed by her next-door neighbor in Apartment 6 that her neighbor’s unit was infested with bedbugs. (Compl. ¶ 18.) The neighbor informed Collins of the infestation, who then contacted a pest control company to conduct an inspection of Apartment 6. (Id.) Plaintiff alleges that her unit was also inspected as part of this inspection and that she was informed that no bed bugs were found. (Compl. ¶¶ 19.)

In April 2022, Plaintiff alleges she woke up covered in bites. (Compl. ¶ 20.) This phenomenon is alleged to have continued throughout 2022, with Plaintiff finally discovering the Apartment contained bedbugs in September. (Compl. ¶ 22.) Plaintiff informed Collins, who in turn contracted Cats USA to come inspect the Apartment. (Compl. ¶ 24.) Cats USA allegedly inspected the Apartment on November 1 and again on November 14, each time informing Plaintiff that no bed bugs were found.  (Compl. ¶ 26.) Plaintiff alleges that management thereafter refused to treat the apartment for bed bugs. (Id.) When Plaintiff eventually inquired with CATS USA as to how the inspections were conduct, she was allegedly informed that CATS USA only inspects for bedbugs with the naked eye. (Compl. ¶ 35.)

Also on November 1, Plaintiff informed Colling that she would be withholding rent. (Compl. ¶ 27.) Plaintiff alleges the situation worsened but management refused to rectify the issue, with Brockwell claiming that trails of insect blood were mere surfactant leaching from the walls. (Compl. ¶ 32.) On December 14, 2023, Plaintiff attempted to pay a portion of her rent, but the payment was rejected by FC Holdings as incomplete. (Compl. ¶ 33.) The next day, Plaintiff allegedly observed an exterminator treating Apartment 6 for bed bugs. (Compl. ¶ 34.)

Plaintiff’s attempts at rectifying the solution herself have been unfruitful, and she alleges the infestation continues at current. (Compl. ¶¶ 36-37.)

First COA – Battery – Sustained with Leave to Amend

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff, (2) plaintiff did not consent to the touching, (3) plaintiff was harmed or offended by defendant’s conduct, and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) “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.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 [willful disregard where surgeon used general hospital blood supply on patient who conditioned surgery on surgeon’s use of family-donated blood].) “A harmful contact, intentionally done is the essence of a battery.” (Id. at 611.)

Here, Plaintiff’s battery claim is based on allegations that FC Holdings deliberately chose not to eradicate a bedbug infestation in Plaintiff’s apartment, declined to inspect the building for bed bugs, and willfully disregarded the existence of bedbugs in her Apartment. (Compl. ¶ 62.) The Court finds that these allegations are conclusory and unsupported by requisite facts. While Plaintiff has certainly alleged the failure of FC Holdings to rectify a known bedbug issue, she has pled no facts from which FC Holding’s intent to commit a battery could be found. At present, the facts indicate a disagreement between Plaintiff and FC holdings as to the presence of bedbugs in the Apartment. There are no facts pled which indicate that FC Holdings failed to rectify the bedbug issue with the intent to cause harmful or offensive contact.

Plaintiff’s citation to Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672 is unpersuasive on this point. Mathias is a Seventh Circuit Federal Court opinion which does not serve as binding authority on this Court. The Court is not aware of any California case, nor does Plaintiff present one, in which a court has held that a cause of action for battery may be premised on a failure to abate bedbugs.

Even were the Court to consider the rationale of Mathias, its holding would ultimately be unhelpful to Plaintiff. Mathias did not consider a motion to dismiss (the federal equivalent to a demurrer), rather it concerned review of an award of punitive damages by a jury pursuant to Illinois law. (Mathias, supra, 347 F.3d at 674.) The plaintiffs in Mathias did not state a cause of action for battery and the only mention of a cause of action for battery in Mathias is follows:

Although bedbug bites are not as serious as the bites of some other insects, they are painful and unsightly. Motel 6 could not have rented any rooms at the prices it charged had it informed guests that the risk of being bitten by bedbugs was appreciable. Its failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well, as in the famous case of Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091, 1093–94 (1955)…which held that the defendant would be guilty of battery if he knew with substantial certainty that when he moved a chair the plaintiff would try to sit down where the chair had been and would land on the floor instead.

(Id. at 675.)

As is clear from the above quotation, the Mathias court’s opinion as to battery is dicta. The Court declines Plaintiff’s invitation to treat this dicta as grounds for overruling the demurrer. Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days’ leave to amend. The Court grants leave to amend as it finds that amendment to properly allege an intentional touching by FC Holdings is, while unlikely, not impossible.

Third COA – IIED – Sustained with Leave to Amend

“The elements of a prima facie case 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].)

Courts have found that allegations of refusal to remediate mold and other harmful building conditions can constitute extreme and outrageous conduct. In Burnett v. Chimney Sweep, plaintiffs repeatedly complained of a mold issue and defendant landlord refused to remediate. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057.) The trial court 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 presented a factual question for the jury. (Id. at 1069, citing Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.)

To support a claim for intentional infliction of emotional distress, it is not enough that the conduct be intentional and outrageous, rather it must be directed at the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware. (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 152.) In order to avoid a demurrer, a plaintiff must allege with “great specificity” the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal.App.3d 926, 936.)

Applying the foregoing case law to this case, a tenant seeking to recover for IIED is required to plead extreme and outrageous conduct by the landlord which was directed at him. Burnett and Stoiber make clear that a tenant fulfills these requirements when they specifically plead defects in the subject premises which were pointed out to the landlord and which the landlord thereafter completely refused to remediate. Refusal to remediate dangerous dwelling conditions clearly qualifies as extreme and outrageous conduct directed at the tenant.

Here, the Court finds the FAC contains insufficient allegations to support a claim for IIED. As previously stated, Plaintiff’s allegations are insufficient as to any intentional conduct of FC Holdings in failing to rectify the bedbug issue. It is clear from Plaintiff’s allegations that FC Holdings were taking some steps to mitigate the bedbug issue in the building, as they are alleged to have had Apartment 6 and the laundry room treated. It appears from the Complaint that FC Holding’s refusal to treat Plaintiff’s apartment is the result of their belief that no bedbugs are present. Nowhere does Plaintiff allege that FC Holdings have acknowledged a bedbug issue in her Apartment and specifically refused to take any action. At current, the allegations are not sufficient to state that FC Holdings refused to fumigate the Apartment with the intent to cause Plaintiff emotional distress.

Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days’ leave to amend. The Court grants leave to amend as it finds that amendment to properly allege an intentional refusal to remediate by FC Holdings is, while unlikely, not impossible.

Thirteenth COA – Public Nuisance – Sustained with Leave to Amend

California law defines a nuisance as “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.” (Civ. Code § 3479.)

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance of damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.) “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493.)

“In determining whether something is a public nuisance, the focus must be upon whether an entire neighborhood or community or at least a considerable number of persons are affected in the manner and by the factors that make the thing a nuisance under Civil Code section 3479. [Citations.] In other words, a private nuisance does not become a public nuisance merely because the public may be said to be affected in some tangential manner rather than specifically in the manner set forth in Civil Code section 3479.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1209.)

Here, Plaintiff alleges that alleged infestation affects the community at large because these types of infestations easily spread through the walls of residential buildings. (Compl. ¶ 191.) This allegation is insufficient to allege a public nuisance. Whether the infestation can spread is an entirely separate matter from whether it has spread. In evaluating the sufficiency of Plaintiff’s allegations, the speculative spread of the infestation is irrelevant. At current, Plaintiff has only alleged that the infestation has affected herself and her next door neighbor. While Plaintiff has alleged bedbugs were found in building’s the laundry room in 2022, she alleges no facts which connect that infestation with the one currently plaguing herself and her next door neighbor. Plaintiff simply has not alleged that the infestation affects the amount of people required to state a cause of action for public nuisance.

Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days’ leave to amend. The Court grants leave to amend as it finds that amendment to properly allege public nuisance is not impossible.

Motion to Strike

FC Holdings seeks to strike Plaintiff’s request for punitive damages and all references to their conduct as “malicious” “oppressive” “despicable” or “outrageous”. The Court notes that Plaintiff’s punitive damages claims are, at least in part, derived from her first and third causes of action. Given the Court has sustained the demurrer to those cause of action with leave to amend, the motion strike punitive damages 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 

FC Holdings, LLC’s Demurrer and Motion to Strike came on regularly for hearing on May 2, 2025, 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 TO THE FIRST, THIRD, AND THIRTEENTH CAUSES OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE PUNITIVE DAMAGES IS MOOT.

DEFENDANT FC HOLDINGS TO GIVE NOTICE.   

IT IS SO ORDERED.