Judge Gail Killefer, Case Number: 23STCV09426, Date: 2023-09-27 Tentative Ruling

TENTATIVE: Defendants’ demurrer to the fourth and sixth causes of action is sustained with leave to amend. Defendants’ motion to strike is granted without leave to amend as to Paragraph 51, granted with leave to amend as to Paragraph 76, and denied as to Paragraphs 39, 62, and 76 in the Prayer for Relief.

On April 27, 2023, Plaintiff Steve Tyler filed a Complaint against Reid Bruton a/k/a Shawn Kravich as an individual and trustee of the SK2022 Trust dated February 16, 2022, Figure 8 Realty, Inc. (collectively “Defendants”), and Does 1 to 40.

The Complaint alleges the following six causes of action: (1) breach of contract/covenant of quiet enjoyment/warranty of habitability, (2) tortious breach of the implied warranty of habitability, (3) negligence, (4) private nuisance, (5) violation of unfair business practices, and (6) intentional infliction of emotional distress.

On June 30, 2023, Plaintiff filed a demurrer with a motion to strike Plaintiff’s fourth and sixth causes of action and claim for punitive damages. On September 13, 2023, Plaintiff filed opposing papers. Defendants filed a reply on September 20, 2023.

Discussion

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, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

The Complaint alleges that Plaintiff entered a month-to-month lease on November 1, 1993, for a property located at 6915 Fountain Avenue, Los Angeles, CA 90028 (hereinafter the “Property”). (Compl. ¶¶ 6, 13.) On or about April 1, 2020, ownership of the Property was transferred to Defendant Shan Kravich (“Kravich”), who transferred the Property to his trust, the SK2022 Trust dated February 16, 2022. (Compl. ¶ 16.) Figure 8 has acted as property manager of the Property since April 2018. (Compl. ¶ 15.)

The Complaint alleges that the Property’s condition was substandard and uninhabitable, due to inadequate weather protection, inadequate plumbing and gas, unsanitary conditions, structural hazards, nuisance, and Defendants’ failure to maintain the property in a good and safe condition. (Compl. ¶¶ 19, 20.)

The essence of an action for private nuisance is a substantial, unreasonable interference with the plaintiff’s use and enjoyment of his property. (See Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.) California recognizes claims for nuisance based on residential habitability issues. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.)

Defendants assert that Plaintiff’s fourth cause of action for nuisance is duplicative of Plaintiff’s third cause of action for negligence because the nuisance cause of action relies on the same operative facts as the negligence claim. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc.¿(2007) 154 Cal.App.4th 1337, 1349.) The nuisance claim “stands or falls with the determination of the¿negligence¿cause¿of¿action” in such cases. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 954, fn. 1; see also Melton v. Boustred (2010) 183 Cal.App.4th 521.)

Plaintiff does not deny that the nuisance and negligence claim rely on the same facts but asserts he can plead alternative theories of liability. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) The fact that Plaintiff can plead alternative theory of liabilities does not mean Plaintiff’s nuisance cause of action is properly pled. As stated above, where a nuisance cause of action relies on the same operative facts as the negligence cause of action, the nuisance claim is subsumed into the negligence claim. (See El Escorial Owners' Assn., supra, 154 Cal.App.4th at p. 1349.)

Plaintiff’s negligence claim alleges that due to the landlord-tenant relationship between Plaintiff and Defendants, Defendants were required to maintain and repair the Property and Defendants are in breach of the common law and statutory warranty of habitability. (Compl. ¶ 42.) Plaintiff’s nuisance claim alleges that Defendants’ actions constituted a private nuisance because the “Defendants allowed conditions that were injurious to the health and safety of Plaintiff and were indecent and offensive such that it interfered substantially with Plaintiff’s right to use and quietly enjoy the Subject Property.” (Compl. ¶ 70.) “The Defendants’ actions and inactions deprived Plaintiff of a healthy and comfortable use of the Subject Property.” (Compl. ¶ 71.)

In Paragraphs 40 and 69, the negligence and nuisances cause of action “re-alleg[e] and incorporate[e] by reference each and every allegation contained in the preceding paragraphs of this Complaint as though fully set forth herein.” (Compl. ¶¶ 40, 69.) Consequently, the facts contained in Paragraphs 13 to 39 of the Complaint apply equally to the negligence and nuisance cause of action such that the court cannot find that Plaintiff’s nuisance cause of action relies on different operative facts than his negligence cause of action. “The complaint thus alleges only one cause of action because it alleges one primary right, that is, plaintiff's right to the unimpaired ownership and undisturbed enjoyment of his premises; a corresponding duty, that is, an obligation on the part of defendants not to interfere with that right; and a breach of that duty by defendants.” (Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372.)

A claim for nuisance may be easier to prove than a claim for negligence because “a plaintiff need only show that the defendant committed the acts that caused injury, whereas in the latter, a plaintiff must establish a duty to act and prove that the defendant's failure to act reasonably in the face of a known danger breached that duty and caused damages.” (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 106.) Here, the Complaint fails to allege separate facts that do not arise from Defendants’ alleged lack of due care in maintaining the property in habitable condition. The nuisance cause of action must specify separate facts that show that the Defendants’ conduct, rather than lack of due care, caused defective conditions to exist on the Property that were injurious to the health and safety of Plaintiff and that the defective conditions substantially interfered with Plaintiff’s comfortable enjoyment of life or property. (Civ. Code, § 3479.)

As Plaintiff has failed to show that the nuisance cause of action is not duplicative of the negligence cause of action, the demurrer to the fourth cause of action is sustained with leave to amend.

Defendants allege that the Complaint fails to allege sufficient facts to state a cause of action for intentional infliction of emotional distress (“IIED”). “The elements of a cause of action for intentional infliction of emotional distress are: “‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.’” [Citations omitted.] (Wong v. Jing (2010) 189 Cal.App.4^th 1354, 1376.)

It is settled law that the California Supreme Court has set a “high bar” for what can constitute severe distress. (Id., citing Hughes v. Pair (2009) 46 Cal. 4^th 1035, 1051.) “Severe emotional distress means ‘“emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.”’ [Citations.]” (Id.)

In his opposition, Plaintiff maintains the Complaint can be amended to include additional facts to support the IIED claim, including Defendants’ alleged attempts to force Plaintiff out of the Property through unfounded 3-day notices to quit. (Opp. at 4:11-14.) Nevertheless, Plaintiff maintains that the IIED claim is supported by the underlying claims in the Complaint. Plaintiff’s four-page opposition fails to point out what facts show that Defendants’ conduct was extreme and outrageous and caused emotional distress to Plaintiff.

As this is Plaintiff’s first demurrer, the court sustains the demurrer to the sixth cause of action with leave to amend.

In his opposition, Plaintiff agreed to remove punitive damage allegations from Paragraphs 51 and 52 of the Complaint. Therefore, Defendants’ Motion to Stike Paragraph 51 is granted without leave to amend.

Defendants assert that despite alleging negligence, Plaintiff’s Complaint fails to allege specific facts of intentional, despicable, or vile conduct to support a claim for punitive damages.

The complaint alleges that on March 29, 2022, Plaintiff made a maintenance request about leaks on the Property’s walls and ceilings that caused areas in the unit to soak and become soggy, mold to form and grow inside the walls of the Property and damaged the ceiling to such an extent that the ceiling started to cave inward and threaten the Plaintiff’s health and safety. (Compl. ¶ 26.) The Complaint alleges that Defendant Kravich canceled and ignored Plaintiff’s March 29, 2022, maintenance request and the April 7, 2022, maintenance request. (Compl. ¶ 26.)

As conditions continued to worsen, Plaintiff was forced to make another complaint with the Los Angeles Housing Department (“LAHD”) which issued a notice of violations to Kravich regarding dampness, unmaintained plaster/drywall/ceilings, and a gaping hole in the Property ceiling. (Id.) Plaintiff was forced to make another maintenance request on May 5, 2022, regarding mildew and soggy ceilings due to the Defendants delay in repairing the unit. (Id.) The complaint alleges Defendants’ failure to repair the water leaks and mold caused Plaintiff significant bodily injury, emotional distress, and property damage. (Id. ¶ 28.) Defendants intentionally and/or negligently failed to repair and eliminate the water leaks and mold to save money and increase their cash flow and net income from the operation and management of the Property. (Id.)

Based on the above, the court finds that the complaint sufficiently alleges that Defendants abused the landlord/tenant relationship by failing to maintain the premises in a habitable and safe condition. (Compl. ¶ 20.) Moreover, at this stage in the pleadings, Plaintiff is not required to prove the allegations or his entitlement to punitive damages. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

Therefore, the Defendants’ motion to strike Paragraphs 39 and 62 in the Complaint and Paragraph 4 in the Prayer for Relief is denied. However, because the demurrer to the fourth cause of action was sustained with leave to amend, the motion to strike Paragraph 76 is granted with leave to amend.

Defendants’ motion to strike is granted without leave to amend as to Paragraph 51, granted with leave to amend as to Paragraph 76, and denied as to Paragraphs 39 and 62, and Paragraph 4 in the Prayer for Relief.

Defendants’ demurrer to the fourth and sixth causes of action is sustained with leave to amend. Defendants’ motion to strike is granted without leave to amend as to Paragraph 51, granted with leave to amend as to Paragraph 76, and denied as to Paragraphs 39, 62, and Paragraph 4 in the Prayer for Relief.

[1] Defense counsel asserts that he attempted to meet and confer with Plaintiff’s counsel regarding the objections to Plaintiff’s Complaint. (Spivey Decl. ¶ 3, Ex. A.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP, § 430.41(a)(4).) As the failure to meet and confer does not constitute grounds to overrule a demurrer, the court address the demurrer and the motion to strike on the merits.