Judge: Frank M. Tavelman, Case: 24NNCV04245, Date: 2025-03-07 Tentative Ruling

Case Number: 24NNCV04245    Hearing Date: March 7, 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: 

Charles White (Plaintiff) brings this action against Mark & Beate Hathaway (Hathaway Defendants) and Doorstead, Inc. (Doorstead). Plaintiff alleges that the property he rented from Hathaway Defendants and, which was managed by Doorstead, was defective in several regards. Plaintiff alleges that Doorstead refused to remediate various conditions on the premises, resulting in damages to Plaintiff. Plaintiff states causes of action for (1) Breach of the Warranty of Habitability, (2) Breach of the Covenant of Quiet Enjoyment, (3) Negligence, (4) Intentional Infliction of Emotional Distress, (5) Negligent Infliction of Emotional Distress, and (6) Punitive Damages.

Doorstead now demurs to the fourth, fifth, and sixth causes of action on grounds that they fail to allege sufficient facts. Plaintiff has filed no opposition. A plaintiff’s failure to oppose the demurrer can be treated as an implied abandonment of the challenged claims. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)

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 meet and confer requirements were met here. (Webber Decl. ¶ 2.)

Facts Alleged

On December 1, 2023, Plaintiff entered into an agreement to rent the premises located at 2000 Hanscom Dr., South Pasadena, CA 91030 (the Subject Premises) from the Hathaway Defendants. (Compl. ¶¶ 1, 2.) The Subject Premises is allegedly managed by Doorstead. (Compl. ¶ 3.)

Plaintiff alleges that, due to numerous issues with the Subject Premises, on January 7, 2024, he had a home inspection conducted. (Compl. ¶ 12.) Plaintiff alleges this home inspection revealed the several defects with the Subject Premises including “serious electrical issues”, “plumbing issues”. (Compl. ¶ 12.) The inspector also recommended that a licensed contractor evaluate the foundation posts due to their shifting creating an unsafe condition. (Id.)

Plaintiff alleges that between February 17, 2024 and the filing of this action on September 12, 2024, he gave repeated oral and written notices to Doorstead regarding “tenantability issues” with the Subject Premises. (Compl. ¶ 13.) Plaintiff alleges these complaints included, “…plumbing issues, wiring issues, HVAC issues, inadequate heat, plumbing problems resulting in raw sewage backing up into the bathtub, and electrical issues.” (Id.)

Plaintiff further alleges that in June 2024, he sent texts and emails to Doorstead requesting that they fix the Subject Premises’ air conditioning system. (Compl. ¶ 14.) Plaintiff alleges these requests went unanswered and that he subsequently paid to have the air conditioning system fixed. (Id.) Plaintiff alleges he sought reimbursement from Doorstead thereafter, but they refused. (Id.) Plaintiff alleges that Doorstead, “…knowingly and intentionally did not respond…and the denied [Plaintiff’s] request for reimbursement in bad faith.” (Id.)

On March 1, 2024, Plaintiff alleges he sent a second written demand for repairs. (Compl. ¶ 15.) This letter apparently concerned water leaks caused by rain storms, sewage backup, and an electric circuit that was malfunctioning. (Id.) Plaintiff alleges this letter went without response. (Compl. ¶ 17.)

On August 6, 2024, Plaintiff alleges he requested, “…immediate repairs for broken light switches, a detached ceiling tile, garbage disposal repair, and ceiling lights that went out.” (Compl. ¶ 17.) Plaintiff does not allege how these requests were made but alleges that none of the requested repairs were made. (Id.)

On August 7, 2024, Plaintiff alleges the air conditioning system stopped working again. (Compl. ¶ 18.) Plaintiff alleges he was quoted around $10,000 to make the needed repairs and requested that Doorstead make such repairs. (Id.) Plaintiff alleges that Doorstead did not make the repairs, and that Plaintiff had to stay in a hotel for a time because a heat wave made the Subject Premises unsuitable. (Id.)

Plaintiff lastly alleges that, “…Defendants have failed to meaningfully address any of the serious issues brought to their attention. Instead, defendants have made the most minimal of repairs and have engaged in delay tactics designed to frustrate plaintiff and make the property completely unlivable with the hopes that plaintiff will move out.” (Compl. ¶ 19.)

Fourth COA – IIED – Overruled

“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].)

Doorstead demurs to this cause of action on grounds that Plaintiff has not alleged conduct which is sufficiently extreme and outrageous. For reasons stated below, the Court finds Doorstead’s argument on this front unpersuasive.

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 supra, 101 Cal.App.3d 903.)

Here, Plaintiff alleges a variety of building defects present at the Subject Premises which could constitute infliction of emotional distress if Doorstead were found to have affirmatively refused to remediate them. Much like the plaintiff in Burnett, Plaintiff has sufficiently alleged an affirmative refusal of Doorstead to remediate the air conditioning issues at the Subject Premises. Plaintiff has alleged that Doorstead refused to respond to repair requests and thereafter refused to compensate him for the costs of repairs. (Compl. ¶ 13.) Plaintiff further alleges that when the air conditioning broke a second time, Doorstead again refused to make the repairs required. (Compl. ¶ 19.) While a single incident may not be sufficient to justify this cause of action, in this instance it is alleged that the condition reoccurred and still Doorstead refused to remediate the issue.  In Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 921, the appellate court concluded that the plaintiff tenant had stated a cause of action for intentional infliction of emotional distress by alleging that she had suffered “ ‘extreme emotional distress’ as a result of the [landlord's and property manager's] ‘knowing, intentional, and willful’ failure to correct defective conditions of the premises.” The Stoiber court observed that whether the failure to act was extreme and outrageous “under the present allegations, presents a factual question—it cannot be said as a matter of law that [plaintiff] has not stated a cause of action.” (Id., at p. 922.)  Whether Plaintiff will be able to convince a trier of fact that such conduct constitutes extreme and outrageous behavior remains to be seen, but his pleadings on this front are sufficient to state a cause of action.

The Court notes that Doorstead’s authority in support of their demurrer is procedurally inapposite. McNairy v. C.K. Realty (2007) 150 Cal.App.4th 1500 concerned whether a jury award for damages in an IIED action were supported by substantial evidence. McNairy did not deal with the issue of whether an IIED cause of action was sufficiently pleaded.

In short, the Court finds Plaintiff has sufficiently pleaded a cause of action for IIED in alleging Doorstead’s repeated refusal to remediate the air conditioning defects at the Subject Premises. As such, the demurrer to this cause of action is OVERRULED.

Fifth COA – NIED – Sustained with Leave to Amend

The Court first addresses Doorstead’s demurrer to this cause of action on grounds that it is alleged to be duplicative of Plaintiff’s Negligence cause of action. Indeed, California courts have consistently held that "Negligent infliction of emotional distress is not an independent tort," but rather, is a species of the tort of negligence. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884; accord Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 ["[T]he negligent causing of emotional distress is not an independent tort, but the tort of negligence."] Regardless, for reasons explained below, the Court does not find the duplicative nature of this cause of action is proper grounds to sustain a demurrer.

There is a variety of competing authority as to whether a demurrer brought under C.C.P.§ 430.10 can be sustained where a cause of action is found to be duplicative of another. Some courts have held that duplicative causes of action are subject to demurrer. (See Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; see also Careau & Co. V Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1392.) Other courts have found sustaining such a demurrer to be inconsistent with a plaintiff’s right to assert inconsistent causes of action at the pleading stage. (See Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890; see also Adams v. Paul (1995) 11 Cal.4th 583, 593.)

In resolving this conundrum, the Court finds the reasoning in Blickman to be the most instructive. The Blickman court first noted that the language of C.C.P. § 430.10 does not authorize a demurrer on grounds of redundancy (Blickman supra, 162 Cal.App.4th at 890.) The Blickman court observed that the practice of sustaining a demurrer to a duplicative cause of action was actually grounded in language no longer present in the statutory scheme.  (Id.) Although the statute authorizing a motion to strike, C.C.P. § 436(a), did previously authorize courts to strike out “irrelevant and redundant” matter, that language has since been removed. (Id.) The court observed that the modern statute contained no analogous language authorizing the striking of redundant material. (Id.)

The Court finds the reasoning in Blickman persuasive. These demurrers are undoubtedly brought pursuant to C.C.P. § 430.10 and that code section simply does not authorize a demurrer where a cause of action is alleged to be duplicative.

As concerns the cause of action itself, the Court finds it is subject to demurrer for failure to plead sufficient facts. A negligent infliction of emotional distress (NIED) cause of action is permitted in two types of actions: “bystander” and “direct victim” cases. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127.) “Direct victim cases involve the breach of a duty owed [to] the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two.” (Id. [citations omitted].) Direct victim cases involve instances where a plaintiff has established a special relationship between themselves and the tortfeasor, such as a fiduciary or guardian. (See Christen v. Superior Court (1991) 54 Cal.3d 868, 884; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073.)

Plaintiff’s fifth cause of action does not distinguish his claim as either a bystander or direct victim claim. To the extent that the Complaint indicates a direct victim theory of NIED, Plaintiff has pled no facts which establish a special relationship between himself and Defendants. Plaintiff’s allegation that, “Defendants abused their positions as landlords and acted in an unconscionable and outrageous manner…” is insufficient to plead a special relationship giving rise to a duty owed to him. (Compl. ¶ 37.) Outside of these instances there is no recognized cause of action for negligent infliction of emotional distress, as it is encompassed in a common law negligence claim. (See McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.)

Accordingly, the demurer to this cause of action is SUSTAINED. As it seems reasonably possible that Plaintiff could add facts speaking to a special relationship, 20 days’ leave to amend is granted.

Sixth COA – Punitive Damages – Sustained Without Leave to Amend

Doorstead demurs to this cause of action on grounds that “Punitive Damages” does not constitute a legally cognizable cause of action. The Court agrees, as the California Court of Appeal has made very clear that,

There is no cause of action for punitive damages. Punitive or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 32944 .... Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.

(Grieves v. Superior Court (1984) 157 Cal.App.3d 159 [quotation marks and citations omitted].)

Accordingly, the demurrer to this cause of action is SUSTAINED without leave to amend.

Motion to Strike

Doorstead moves to strike the following portions of the Complaint:

1.      Page 8, lines 1 through 2, “43. Defendants, jointly and severally, are guilty of oppression, fraud, and malice, as those terms are defined by Civil Code § 3294 (c).”

2.      Page 8, lines 3 through 4, “44. Plaintiff requests an award of punitive damages against Defendants, jointly and severally. Defendants’ conduct justifies such an award.”

3.      Page 8, lines 22 through page 9, line 14, Plaintiff’s “SIXTH CAUSE OF ACTION, Claim for Punitive Damages,” in its entirety.

4.      Page 9, lines 20 through 21, “3. For punitive damages in an amount necessary to punish Defendant as permitted by law;”

The Court notes that Items 1-3 of Doorstead’s motion to strike are located in Plaintiff’s sixth cause of action. The Court having sustained the demurrer to this cause of action without leave to amend, the motion to strike its contents is mooted. All that remains is Item 4, Plaintiff’s request for punitive damages in the Prayer for Relief.

Here, the Court finds that Plaintiff has insufficiently pled acts by Doorstead which constitute “malice, fraud, or oppression”. A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice as there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) While Plaintiff may have sufficiently pled Doorstead’s refusal to remedy defects with the Subject Premises, his allegations that Doorstead’s actions were done with malice, fraud, or oppression are conclusory. Read as a whole, the Complaint alleges only that Doorstead refused to remediate issues on the Subject Premises, not that it did so maliciously.

Accordingly, the motion to strike Paragraph Three of the Prayer for Relief is GRANTED with 20 days’ leave to amend. Leave to amend is granted as the Court finds it reasonably possible that Plaintiff could allege specific facts speaking to the malice requirement.

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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 

Doorstead, Inc.’s Demurrer and Motion to Strike came on regularly for hearing on March 7, 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 FOURTH CAUSE OF ACTION IS OVERRULED.

THE DEMURRER TO THE FIFTH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

THE DEMURRER TO THE SIXTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE MOTION TO STRIKE IS GRANTED WITH 20 DAYS LEAVE TO AMEND AS TO PARAGRAPH 3 OF THE PRAYER FOR RELIEF, AND MOOT AS TO ALL OTHER SECTIONS.

IT IS SO ORDERED.