Judge: Gail Killefer, Case: 21STCV38450, Date: 2022-08-31 Tentative Ruling
Case Number: 21STCV38450 Hearing Date: August 31, 2022 Dept: 37
HEARING DATE: August 31, 2022
CASE NUMBER: 21STCV38450
CASE NAME: Joseph Hitzman v. Burbank BL. Properties, LLC., et al.
TRIAL DATE: April 18, 2023
PROOF OF SERVICE: OK
MOTION: Defendants’ Demurrer to Plaintiff’s Second
Amended Complaint, Defendants’ Motion to Strike Portions
of the Second Amended Complaint
MOVING PARTY: Defendants, Burbank BL.
Properties, LLC., Steve Freedland, and Susan Freedland
OPPOSING PARTIES: Plaintiff, Joseph Hitzman
OPPOSITION: August 18, 2022
REPLY: August 24, 2022
TENTATIVE: Defendants’ demurrer is
sustained, without leave to amend. Defendants’ motion to strike is granted in
part. (Notice
of Motion, items 1-4, 7-8.) Defendants are to provide notice.
Background
This action arises
out of Joseph Hitzman’s (“Hitzman”) lease of 13806 Burbank Blvd. Van Nuys, CA
91401 (“Property”) from Burbank BL. Properties LLC (“BL”), Steve Freedland, and
Susan Freedland (collectively “Defendants”) from December 2012 to December 2019.
Plaintiff alleges
that during his residence in the Property, the Property was uninhabitable due
to several conditions, which Plaintiff alleges caused him harm. Plaintiff
alleges Defendants did not repair the alleged defects, even after several
complaints, and falsely affirmed to Plaintiff that the Property had been
repaired., which led to Plaintiff being diagnosed with mold sickness in October
2018. After Defendants’ alleged failure to repeatedly cure the reported
defects, Plaintiff was allegedly denied access to the building trash bin and
provided an incorrect access code, leading to his constructive eviction on December
25, 2019, in response “to exposure to unsanitary housing conditions, exposure to
chemicals that exacerbated his CIRS, and lack of proper repairs.”
Plaintiff filed his
First Amended Complaint (“FAC”) on February 18, 2022 and served his FAC on
Defendants on March 18, 2022. The FAC alleges eleven causes of action: (1)
Breach of Contract; (2) Breach of Covenant of Quiet Enjoyment; (3) Breach of
Warranty of Habitability; (4) Negligence; (5) Private Nuisance; (6) Violation of
Civil Code Section 1942.4; (7) Fraud; (8) Violation of Unfair Business
Practices; (9) Intentional Infliction of Emotional Distress; (10) Battery; and
(11) Constructive Eviction.
On May 11, 2022, the
court sustained Defendants’ demur as to the fifth, sixth, seventh, ninth, and
tenth causes of action of the Amended Complaint (“May 11 Order”).
On June 10, 2022,
Plaintiff filed his Second Amended Complaint (“SAC”) alleging causes of action
for: (1) Breach of Contract; (2) Breach of Covenant of Quiet Enjoyment; (3)
Breach of Warranty of Habitability; (4) Negligence; (5) Private Nuisance; (6) Violation
of Unfair Business Practices; (7) Intentional Infliction of Emotional Distress;
and (8) Constructive Eviction.
Defendants now demur
to the fifth and seventh causes of action of the SAC, and move to strike
portions of the SAC. Plaintiff opposes both motions.
Discussion
I.
Meet
and Confer Efforts
Defendants again
submit the declaration of their counsel, Lauren G. Kane (“Kane”) to demonstrate
that counsel has fulfilled their statutory meet and confer obligations prior to
filing this demurrer and motion to strike. Kane attests that on June 27, 2022, Kane
sent an email correspondence to Plaintiff’s counsel requesting availability to
meet and confer telephonically regarding the demurrer and motion to strike. (Kane
Decl. ¶ 3.) Thereafter, Kane attests on “July 1, 2022, I placed a phone call to
the office of Plaintiff's counsel and left a message that my call be returned.
On July 1, 2022, I sent a second email message requesting a meet and confer
conference. On July 1, 2022, Ms. Delesk replied to my message and indicated
that my email had been forwarded to another attorney, David McGaffey. On July
5, 2022, I sent an email to Mr. Gaffney in an attempt to arrange a phone call
for the meet and confer. As of the date of this Declaration, I have received no
reply from Plaintiff's counsel.” (Id.) The parties have thus not reached
an agreement as to the issues identified in Defendants’ June 27, 2022 letter.
The
court finds that Defendants’ meet and confer efforts prior to filing the
instant demurrer and motion to strike are insufficient. The declarations of
Defendants’ counsels clearly states that counsel did not meet and confer “in
person or by telephone” as required by CCP § 430.41. Defendants were expected
meet and confer telephonically, and the Kane Declaration demonstrates that the
parties failed to do so.
However,
an insufficient meet and confer process is not grounds to overrule or sustain a
demurrer. (CCP § 430.41(a)(4).) Nevertheless,
because failure to meet and confer is not grounds to overrule a demurrer, the
court will proceed to analyze the parties’ substantive arguments.
II.
Legal Standard
A demurrer is an objection to a pleading, the grounds for
which are apparent from either the face of the complaint or a matter of which
the court may take judicial notice. (CCP
§ 430.30(a); see also Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose
of a demurrer is to challenge the sufficiency of a pleading “by raising
questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th
518, 525.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the
parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75
Cal.App.4th 594, 601.) “When a court
evaluates a complaint, the plaintiff is entitled to reasonable inferences from
the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)
The general rule is that the plaintiff need only allege
ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42
Cal.4th 531, 550.) “All that is required
of a plaintiff, as a matter of pleading, even as against a special demurrer, is
that his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard
v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[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.)
Demurrers do not lie as to only parts
of causes of action where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally it is an abuse
of discretion to sustain a demurrer without leave to amend if there is any
reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)
III.
Analysis
A.
Fifth
cause of Action: Private Nuisance
Civil Code § 3480
defines a public nuisance as one which “affects at the same time an entire
community or neighborhood, or any considerable number of persons.” To qualify
as a public nuisance and be enjoinable, the interference caused by the nuisance
must be “both substantial and unreasonable.” (People ex rel. Gallo v. Acuna (1997)
14 Cal.4th 1090, 1105.)
Conversely, “
“¿A private nuisance cause of action requires the plaintiff to prove an injury
specifically referable to the use and enjoyment of his or her land.”” (Mendez
v. Rancho Valencia Resort Partners, LLC¿(2016) 3 Cal.App.5th 248, 262
[quoting¿Adams v. MHC Colony Park, L.P.¿(2014) 224 Cal.App.4th 601,
610.])¿Plaintiff is required to prove both of the following¿in order to¿recover
for an allegation of private nuisance: (1) “the invasion of plaintiff’s
interest in the use and enjoyment of land was¿substantial, and (2) “the
interference with the protected interest must …be¿unreasonable.”¿(emphasis
original)¿(San Diego Gas & Electric Co. v. Superior Court¿(1996) 13
Cal.4th 893,¿938.) Both elements of a private nuisance claim are to be judged
by an objective standard, based on the effect that any alleged nuisance would
have on the ordinary person. (Id.¿at 938-939.)¿
Defendants
are again correct that a nuisance claim cannot stand as a separate cause of
action from negligence if both causes of action rely on the same set of facts
about a lack of due care. (See Melton v. Boustred
(2010) 183 Cal.App.4th 521, 542.) “Where negligence and nuisance causes of
action rely on the same facts about lack of due care, the nuisance claim is a
negligence claim.” (Id. [citing El Escorial Owners' Assn. v. DLC
Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349].) In Melton, the
court noted “plaintiffs' amended complaint alleges no additional facts in
support of the nuisance claim” and thus “relies entirely on the facts asserted
in plaintiffs' causes of action for negligence and premises liability,” in
finding the trial court was correct in sustaining the demurrer against the
nuisance cause of action. (Id.)
As part of the May
11 Order, this court sustained Defendants’ demurrer to the private nuisance
cause of action, finding:
“The court agrees
that the fifth cause of action is insufficiently pled. Based on the guidance
from Melton and El Escorial, Plaintiff’s allegations about
Defendants’ alleged failure to cure the defects in the Property do not show
additional facts to support a nuisance claim and are thus not sufficient to
state a separate cause of action for nuisance against Defendants.” (May 11
Order, 4.)
Here, Defendants again
contend that Plaintiff’s fifth cause of action is insufficiently pled because
the nuisance and negligence causes of action “both arise out of a purported breach
of due care to maintain the premises in a habitable condition.” (Demurrer, 5-6.)
Defendants further point out that Plaintiff again supports his nuisance cause
action of action by alleging and reincorporating that he was harmed by Defendants’
“negligent maintenance of the Subject Property.” (Id.; SAC ¶¶
77, 79.) As such, Defendants again contend both “the nuisance and negligence
claims arise out of Defendants' alleged duty and alleged failure to remedy the
claimed defects in the Subject Property.” (Id.)
The SAC here again alleges
that the “actions taken by Defendants constituted a private nuisance” and
“Defendants’ actions and/or inactions created conditions that were harmful to
Plaintiff’s health; indecent and
offensive; and an obstruction to the free use of the property, so as to deprive
Plaintiff of a healthy and comfortable use of the Subject Property.” (SAC ¶¶
80-81.) The SAC further alleges “Defendants had been repeatedly put on notice,
and knew that dangerous conditions existed at the Subject Property, had the
financial ability to fix the conditions, but did nothing to repair and
remediate the dangerous conditions, despite their legal obligation to do so.” (SAC ¶ 86.) The
allegations supporting Plaintiff’s nuisance cause of action therefore include
conclusory language regarding the actions of Defendants, and fail to allege
further facts to satisfy a claim for nuisance against Defendants.
In opposition, Plaintiff contends that
the nuisance and negligence theories of liability here overlap and “become
merely alternative legal theories for redressing what is really the invasion of
a single primary right: the right to the undisturbed enjoyment of one’s
property and land. (Opp., 4-5; citing Van Zyl v. Spiegelberg, (1969) 2 Cal.App.3d 367, 372 [Plaintiff uses an incomplete citation].)
Plaintiff further states that aside from the negligent actions alleged,
Defendants “engaged in many intentional acts that are separate and apart from
their negligent actions.” (Id.) Plaintiff points to Defendants’ failure
to repair the roof as an example. (Id.) However, Plaintiff does not
explain how pointing to the failure to do an intentional act, repair, can
constitute an intentional act here. Plaintiff further points to paragraphs
36-37 and 49 of the SAC as proving injuries which were a “direct result of his
exposure to mold while living in the Subject Property.” (Opp., 5.)
Paragraphs
36 and 37 of the SAC discuss Plaintiff’s attempts to get medical care for his
“health concerns” and correspondences with Defendants regarding such. (SAC
¶¶36-37.) Paragraph 49 likewise makes no mention of any intentional conduct
which was a direct cause of Plaintiff’s injuries. (SAC ¶49.)
In reply, Defendants state “[t]hese are
the identical allegations that were first included in Plaintiff's First Amended
Complaint. Plaintiff has not even attempted to differentiate the two causes of
action or allege any additional facts to support a nuisance claim.” (Reply, 3.)
The court agrees.
Thus, the court, in
keeping with its earlier ruling, agrees that the fifth cause of action is
insufficiently pled. Plaintiff’s allegations about Defendants’ alleged failure
to cure the defects in the Property still do not show additional facts to
support a nuisance claim and are thus not sufficient to state a separate cause
of action for nuisance against Defendants.
For these reasons, Defendants’
demurrer to the fifth cause of action is sustained.
B.
Seventh
Cause of Action: Intentional Infliction of Emotional Distress
“To state a cause of action for intentional infliction of
emotional distress a plaintiff must show: (1) outrageous conduct by the
defendant; (2) the defendant's intention of causing or reckless disregard of
the probability of causing emotional distress; (3) the plaintiff's suffering
severe or extreme emotional distress; and (4) actual and proximate causation of
the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa
Margarita Ford, Inc. (2014) 229 Cal.App.4th 144.) To satisfy the
“outrageous conduct” element, the plaintiff must allege conduct “so extreme as
to exceed all bounds of that usually tolerated in a civilized community . . . “ (Cochran
v. Cochran (1998) 65 Cal.App.4th 488, 494.)
As
part of the May 11 Order, this court found:
“[t]he FAC thus points
to this sequence of Defendants’ conduct and concludes that such conduct,
whether separately or collectively, is so outrageous as to satisfy the
“extreme” conduct element necessary to support a claim for intentional
infliction of emotional distress. (Cochran,
supra, 65 Cal.App.4th at 494.) However, the FAC fails to allege sufficient
facts to show that this conduct was extreme or outrageous either separately or
collectively.
The court therefore agrees that the ninth cause of action is
insufficiently pled. In his FAC, Plaintiff
merely points to the sequence of events as alleged in previous causes of action
and concludes that such actions are therefore outrageous because “[a] reasonable
person in the same circumstances would have been similarly distressed by
Defendants’ conduct.” (May 11 Order, 6.)
Defendants again contend that the seventh cause of action
for intentional infliction of emotional distress is insufficiently pled because
the FAC fails to allege all of the following: (1) that Defendants directed conduct at
Plaintiffs intending to cause severe emotional distress, or (2) that
Defendants’ conduct was outrageous. (Demurrer, 6-7.) Defendants
again contend that Plaintiff’s claim for intentional infliction of emotional
distress is “based on the same habitability allegations concerning the
condition and repair of the property and Defendants’ alleged use of cleaning
products in the Subject Property,” namely bleach. (Id.) Defendants
lastly contend that Plaintiff’s allegations include contentions that Defendants
sent workers into the Subject Property when Plaintiff was not there and without
his prior approval, as well as alleged photographs of in the Property. (Id.)
Defendants contend “[s]uch allegations do not rise to the level of extreme or
outrageous conduct required to state a claim for IIED.” (Id.)
In opposition, Plaintiff makes the
conclusory contention: “Plaintiff has alleged that the
Defendants knew of the various habitability defects and failed to address them
is, at the very least, sufficient to constitute a reckless disregard of the
probability of causing emotional distress to plaintiffs.” (Opp., 5-6.)
Here,
the SAC again describes the outrageous conduct in question by stating:
“The Defendants’
conduct toward Plaintiff includes, but is not limited to, the Defendants’
refusal or failure to repair all of the habitability and safety issues despite
Plaintiff’s numerous pleas and the great affect these conditions had on his health,
the Defendants’ use of bleach when Plaintiff directly informed the Defendants
about the effect that chemical had on him, the Defendants’ intrusion into
Plaintiff’s home when Plaintiff directly informed the Defendants that they
could not do that without proper notice, the taking of photographs of
Plaintiff’s personal belongings without his knowledge or consent, the
allegations that Plaintiff caused the Subject Property’s issues, and the
Defendants’ actions after Plaintiff informed them that he needed to vacate,
which included putting a lock on the trash bin and not giving notice to
Plaintiff regarding a water shut off.
...
the Defendants
acted with reckless disregard to the probability that Plaintiff would suffer
emotional distress, knowing that Plaintiff lived in the Subject Property with
the dangerous and uninhabitable conditions and that these conditions had a
great effect on his health. Plaintiff had informed the Defendants about the
effect that the Subject Property’s mold had on him, the problems he had with
the Defendants’ use of bleach and other unknown chemicals, and that Plaintiff
needed to have proper notice prior to the Defendants entering his unit.”
(SAC ¶¶ 97-98.)
Plaintiff contends “[t]hese
actions are extreme and outrageous warranting punitive damages. Plaintiff’s
emotional distress was severe and very real in that he feared that Defendants
would enter his home at any time, take photos of his personal belongings and
use chemicals that would have no effect on the larger mold issue but that
exacerbated his injuries.” (Opp., 6.)
The SAC thus again points to this sequence of Defendants’ conduct
and concludes that such conduct, whether separately or collectively, is so
outrageous as to satisfy the “extreme” conduct element necessary to support a
claim for intentional infliction of emotional distress. (Cochran, supra, 65 Cal.App.4th at 494.) However, the
SAC fails to allege sufficient facts to show that this conduct was extreme or
outrageous either separately or collectively. In reply, Defendants contend
“Plaintiff failed to add any additional facts/allegations to sufficiently plead
a claim” for IIED. (Reply, 3-4.) The court agrees.
The court therefore again agrees that the seventh
cause of action is insufficiently pled.
For these reasons,
Defendants’ demurrer to the seventh cause of action is sustained.
MOTION TO
STRIKE
Defendants move to
strike the following portions of the SAC:
1. Page 2, line 1: “punitive.”
2. Page 11, line 7-9: “Based upon information and belief,
Defendants' conduct has been oppressive, willful, malicious, negligent and was
carried out with a deliberate and conscious disregard for Plaintiff's legal
rights and safety."
3. Page 13, lines 4-7: “[B]ased upon information and belief,
Defendants' conduct was willful and intentional, done with oppression and
malice against the Plaintiff, and undertaken with a conscious disregard to
Plaintiff's rights.”
4. Page 13, lines 14-16: “Upon information and belief,
Defendants' conduct under these circumstances was despicable and such behavior
warrants the imposition of punitive damages in a sum appropriate to punish the
Defendant and to deter future similar misconduct.”
5. Page 17, lines 8-9: “Based upon information and belief,
Defendants' conduct warrants an award of punitive damages because Defendants'
actions were willful, malicious and oppressive.”
6. Page 17, line
19-24: “This conduct by the Defendants was despicable and carried out with
willful and conscious disregard of the rights and safety of Plaintiff, which
behavior warrants the imposition of punitive damages in a sum appropriate to
punish Defendants and to deter future similar misconduct.”
7. Prayer for Relief, Paragraph 4, in its entirety.
8. Prayer for Relief, Paragraph 5: “and/or statutes.”
As the court has already ruled in
sustaining the Defendants’ demurrer to the fifth and seventh causes of action,
items 5-6 are moot. Therefore, the court moves forward in considering items 1-4
and 7-8.
Discussion
I.
Legal Standard
CCP § 436 provies: “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 inserted 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.”
The grounds for a motion to strike must “appear on the face of the
challenged pleading or from any matter of which the court is required to take
judicial notice.” (CCP § 437.)
Motions to strike are used to
challenge defects in the pleadings not subject to demurrer. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an
objection that the complaint failed to state facts sufficient to constitute a
cause of action is ground for a general demurrer, not a motion to
strike.].) Any party may move to strike
the whole or any part of a pleading within the time allotted to respond to the
pleading. (CCP § 435(b)(1).) The allegations of a complaint “must be
liberally construed, with a view to substantial justice between the
parties.” (CCP § 452.) The court “read[s] allegations of a pleading
subject to a motion to strike as a whole, all parts in their context, and
assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67
Cal.App.4th 1253, 1255.)
II.
Analysis
A.
Allegations re: Punitive Damages
Plaintiff may recover damages “in an
action from breach “not arising from contract” if Plaintiff proves by clear and
convincing evidence that Defendant acted with malice, oppression, or fraud.
(Civ. Code, § 3294(a).) “Malice means conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” (Civ. Code, § 3294(c)(1).)
“Oppression’ means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person's rights.” (Civ.
Code, § 3294(c)(2).) “Fraud means an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (Civ. Code, § 3294(c)(3).) A plaintiff’s
“conclusory characterization of defendant’s conduct as intentional, willful and
fraudulent is a patently insufficient statement of ‘oppression, fraud, or
malice, express or implied, within the meaning of section 3294.” (Brousseau
v. Jarrett (1977) 73 Cal.App.3d 864.)
The Defendants again contend that the
SAC’s allegations regarding punitive damages must be stricken because the SAC
has alleged no facts which demonstrate that the Defendants acted with
oppression, malice, or fraud sufficient to support a claim for punitive
damages. (Motion, 2-4.)
In opposition, Plaintiff contends that the
SAC properly alleges punitive damages because the SAC, read as a whole,
sufficiently alleges that Defendants acted with extreme indifference and with
conscious disregard to Plaintiff’s rights and well-being. (Opposition, 4-6.)
As discussed previously, the court agrees
with Defendants that the SAC fails to allege how Defendants acted with
oppression, malice, or fraud in failing to cure habitability issues at the
Subject Property. The SAC still fails to plead facts demonstrating that any of
Defendants’ alleged conduct was done with oppression, fraud, or malice other
than conclusory statements regarding an intent to disregard Plaintiff’s
wellbeing and Plaintiff’s damages suffered as a result. Thus, the Defendants’
motion is again granted as to the request to strike items 1-4 and 7.
B. Allegations re:
Attorney Fees
Plaintiff in his opposition states:
“Plaintiff inadvertently kept the claim for statutory damages in its prayer for
relief in the SAC. As such, Plaintiff is amenable to removing ‘and/or statute’
from the prayer for relief.” (Opp., 6.)
As such, the court grants Defendants’
motion as to item 8 as well.
Defendants’ motion is granted in part. (Notice of Motion, items
1-4, 7-8.) The motion is otherwise moot.
Conclusion
Defendants’ demurrer is sustained, without leave to amend. Defendants’
motion to strike is granted in part. (Notice of Motion, items 1-4, 7-8.)
Defendants are to provide notice.