Judge: Frank M. Tavelman, Case: EC068764, Date: 2022-09-22 Tentative Ruling

Case Number: EC068764    Hearing Date: September 22, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER WITH MOTION TO STRIKE SECOND AMENDED COMPLAINT

MP:     Stephen Edward Samuel

RP:      Christiana Akpuh, Georgine Akpuh, Stephanie Akpuh, Harrison Akpuh

CASE HISTORY:

Christiana Akpuh, Georgine Akpuh, Stephanie Akpuh, Harrison Akpuh (collectively “Plaintiffs”) filed a Second Amended Complaint (“SAC”) alleging five causes of action:

(1) Breach of Warranty of Habitability;

(2) Nuisance;

(3) Intentional Infliction of Emotional Distress;

(4) Statutory Breach of Warranty of Habitability and

(5) Breach of Covenant of Quiet enjoyment.  

Plaintiffs filed suit against Premier Apartments LLC (“Premier” or “LLC”) and Stephen Edward Samuel (“Samuel”) (collectively “Defendants”).  This stems from a residential lease for property located at 12325 Chandler Boulevard, Apt. 101, Valley Village, CA.  (“Subject Property”).  Premier Apartments LLC is the owner, and Stephen Edward Samuel the LLC’s sole member. (Opposition 2:6-9).

Demurrer

On August 9, 2022, Defendant Samuel filed a Demurrer and a separate Motion to Strike.  Plaintiff was granted Plaintiff’s request to file a later response, granting them until September 5, 2022; however, Plaintiff did not file an opposition until September 7, 2022 to the Moton to Strike, and on September 9^th to Demurrer.  Despite violating the Court’s extended deadline, the Court with nonetheless accept the late filing.  Defendant Samuel timely filed a reply on September 12, 2022.

Defendants argue as follows:  as to the First, Second, Third, Fifth Causes of Action, Plaintiff fail to state a cause of action in accordance with CCP §430.10(e), and the cause of action is uncertain pursuant to CCP §430.10(f).  Specifically, Samuel attacks a claim of alter ego theory of liability, and asserts Plaintiff plead conclusory allegations regarding corporate formalities, and failed to allege facts showing a unity of interest.

Motion to Strike

Defendant seeks to strike the following:

1.  PUNITIVE DAMAGES

    

   A. Paragraph 44 (p 11, ln 17- p 11 ln 19) “Based on Defendants’ willful, malicious, oppressive and unconscionable actions – as outlined above – an award of punitive damages is necessary to punish and deter Defendants for their truly bad faith actions.”

    

   B. Paragraph 45 (p. 11, ln 20 – ln 24) “Defendants have acted wantonly and with recklessness and conscious disregard of the rights of Plaintiffs through their ongoing bullying, intimidation and harassment of Plaintiffs and their significant and widespread breaches of the warranty of habitability. Defendants’ actions constitute extreme violations of well-settled California law and continue to demonstrate a blatant disregard for Plaintiffs’ health and safety, as well as his basic human dignity.”

    

   C. Paragraph 46 (p. 11, ln 25 – p. 12, ln 26) “The sheer magnitude of the wrongs committed by Defendants – including not only the horrifying breaches of the most basic habitability standards, but the breaches of the covenant of quiet enjoyment, the intentional and intentional infliction of emotional distress, the creation of a nuisance, negligence, malice, malicious– are the very paradigm of a pattern of willful, malicious, oppressive and unconscionable behavior. The enormity of the Defendants’ malignant conduct demonstrates that this could only be an orchestrated and deliberate effort to deprive Plaintiffs of his most basic rights.”

    

   D. Paragraph 45 (p. 11, ln 14 – ln 15) “The Defendants’ behavior simply shocks the conscience and falls well outside the standards of civilized decency. As such, punitive damages are warranted in this case.”

    

   E. Paragraph 47 (p. 12, ln 3 – ln 4) “The Defendants’ behavior simply shocks the conscience and falls well outside the standards of civilized decency. A such punitive damages are warranted in this case.”

    

   F. Paragraph 66 (p. 14, ln 12 – ln 15) “Defendants have, individually and in concert, acted with recklessness and conscious disregard of the rights of Plaintiffs. Defendants’ conduct has been grossly negligent, malicious and oppressive, thereby entitling Plaintiffs to punitive damages in an amount to be determined at trial.”

    

   G. Paragraph 66 (p. 14, ln 12 – ln 15) “Defendants have, individually and in concert, acted with recklessness and conscious disregard of the rights of Plaintiffs. Defendants’ conduct in breaching the covenant of quiet enjoyment has been grossly negligent, malicious and oppressive, thereby entitling Plaintiffs to punitive damages in an amount to be determined at trial.”

    

   H. Prayer, Paragraph 4, (p. 17 ln 2) “For exemplary damages and punitive damages in an amount to be determined at trial.”

    

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.)  Complaints must clearly and precisely allege essential facts upon which a determination of the controversy depends (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal. App. 3d 531, 71.  Defendant cites as authority that alter ego must be pled with specificity, a Los Angeles Superior Court ruling; however this ruling cites no legal authority for the conclusion. 

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).)

"[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond." (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty "because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612,616.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP 435(b). The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike 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.)

A motion to strike is appropriate to strike out any irrelevant, false or improper matter asserted in any pleading and the Court may strike out all or any party of any pleading not drawn or filed in conformity with the law. (See Code Civ. Pro. § 436 (a)-(c).) A motion to strike challenges portions of a cause of action that are substantively defective on the face of the complaint. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83; see also Code of Civ. Proc. § 437.) More specifically, a motion to strike should be granted to remove "any irrelevant, false, or improper matter inserted in any pleading," or where the pleadings are drawn in violation of a law, rule or court order. (Code of Civ. Proc. § 436.)

The use of a motion to strike should be cautious and sparing. (PH II, Inc. v. Superior Ct. (1995) 33 Cal. App. 4th 1680, 1683 .) A motion to strike is proper when a substantive defect is clear, but it is not be used as a procedural "line item veto." (Id.)

California courts require that specific facts be plead in support of punitive damage allegations; mere conclusions are not enough. (Hilliard v. A.M. Robbins (1983) 148 Cal.App.3d 374, 391; Perkins V. Superior Court (1981) 117 Cal.App.3d 1, 6-7; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Broad allegations that a defendant acted maliciously and willfully are not enough; specific facts must be alleged. (Austin v. Regents of University of California (1979) 89 Cal.App.3d 354 disapproved on other grounds by Ochoa v. Superior Court (1985) 39 Cal.3d 159; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)  However, when considering a motion strike, the Court considers the complaint as a whole.

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 NOT been satisfied to code, because Defendant failed to contact Plaintiff by telephone or in person as required by the code, but rather sent a letter to which Plaintiff failed to respond. (Decl. Garchie ¶2-3.).  nonetheless, the Court will consider the motion given the age of the case.

III.       MERITS

Demurrer and Alter Ego Doctrine

Defendant’s primary argument is that the SAC is deficient relative to alter ego doctrine.   The Court will address that first, as it applies to all challenged causes of action.  

In the SAC, Plaintiff alleges that Defendant is the principal and sole managing member of the LLC (SAC ¶10).  Plaintiff further alleges that Samuel was “directly and individually responsible for the inexcusable conduct (Ibid).  Samuel’s conduct was “intentional, wrongful an in violation of the implied covenant of good faith and fair dealing.”  (Id at ¶11).  Samuel also illegally entered or attempted to illegally enter Plaintiff’s apartment and blaming Plaintiff for substandard conditions. (Id at ¶12).  Finally, Samuel, “knowingly ignores and refuses to abate dangerous and unhealthy nuisance.”  (Id. ¶13).

As to corporate formalities, the LLCs business address is the same as Samuel’s.  Samuel operates over 100 apartment units creating single -asset LLC in which Samuel is the sole member and manager.  Samuel does not follow any corporate formalities.  (SAC ¶¶14-15).

In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36, the Court of Appeal held alter ego facts need not be pled with specificity.  In that case, the following was sufficient to allege alter ego liability:  “Rutherford alleged that Caswell dominated and controlled PDR; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice. These allegations mirror those held to pass muster in First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915-916, 73 Cal.Rptr. 657. As in First Western, "[a]ssuming these facts can be proved, [Caswell] … may be held liable … under the alter ego principle."

As discussed in Rutherford, Defendants argue that Rutherford failed to allege specific facts to support an alter ego theory, but Rutherford was required to allege only "ultimate rather than evidentiary facts." Moreover, the "less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff," which certainly is the case here. (Id.)

Defendant does not provide any case that supports the position that alter ego must be pled with specificity, although Defendant cites a Los Angeles Superior Court trial ruling that simply states that “uncertainty” may affect a cause of action.  Ramirez v. Salvador Reynoso, 2021 Cal. Super. LEXIS 92510, *6. (Opposition 7:1-4).  Such an argument is not persuasive given Rutherford.

As to the Demurrer for failing to state a cause of action, each and every cause of action has more than sufficient information in the complaint to sustain the lawsuit.  This includes, but is not limited to SAC ¶24 which includes:  Plaintiffs alleged exposure  to the following substandard conditions (1) Cockroach and rodent infestation. (2) Incessant water intrusion (3) Mold (4) inoperable windows. k. inoperable and/or malfunctioning household appliances. (5) deteriorated and worn walls and ceilings, (6) faulty and leaking pipes. n. lack of/faulty proper electrical wiring, (7) unsanitary and worn flooring, (8) unsanitary and unsafe common areas; and (9) cracks and holes in the walls, under cabinets, (10) Malfunctioning elevators, (11) Leaking air conditioner, (12) Torn and damaged Window screen, (13) Noise from the managers unit upstairs, (14) Peeling wall paint.

The Demurrer to the First, Second, Third and Fifth causes of action are overruled.  The Plaintiff has pled sufficient facts to support each cause of action as well as the alter ego allegation.

Motion to Strike

The motion to strike may be used to excise improper and conclusory language from a complaint; however, the Court must consider the complaint as a whole when making its ruling.   The Court finds the Defendant the following language should be struck:

1. Paragraph 45 (11:20 –24) “Defendants have acted wantonly and with recklessness and conscious disregard of the rights of Plaintiffs through their ongoing bullying, intimidation and harassment of Plaintiffs and their significant and widespread breaches of the warranty of habitability. Defendants’ actions constitute extreme violations of well-settled California law and continue to demonstrate a blatant disregard for Plaintiffs’ health and safety, as well as his basic human dignity.”

    

2. Paragraph 46 (11:25 –12: 26) “The sheer magnitude of the wrongs committed by Defendants – including not only the horrifying breaches of the most basic habitability standards, but the breaches of the covenant of quiet enjoyment, the intentional and intentional infliction of emotional distress, the creation of a nuisance, negligence, malice, malicious– are the very paradigm of a pattern of willful, malicious, oppressive and unconscionable behavior. The enormity of the Defendants’ malignant conduct demonstrates that this could only be an orchestrated and deliberate effort to deprive Plaintiffs of his most basic rights.”

1. Paragraph 47 (12:3 –4) “The Defendants’ behavior simply shocks the conscience and falls well outside the standards of civilized decency. A such punitive damages are warranted in this case.” Note:  This is the same language requested in Defendant’s motion and labeled as “D”, although the location citation is different.   The Court treated this simply as a duplicate request with incorrect initial citation.

The Court finds that the punitive damages claim has been sufficiently alleged.

IV.       CONCLUSION

The court overrules the demurrer and grants the motion to strike in part.

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RULING:

The Court having reviewed the parties’ filed papers, as well as considered the oral arguments in court makes the following order:

ORDER

Defendant Samuel’s demurrer and motion to strike came on regularly for hearing on September 22, 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 OVERRULED.

THE MOTION TO STRIKE IS GRANTED IN PART WITHOUT LEAVE TO AMEND.

IT IS SO ORDERED.

DATE:  September 22, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles