Judge: Gail Killefer, Case: 23STCV09459, Date: 2024-03-14 Tentative Ruling
Case Number: 23STCV09459 Hearing Date: March 14, 2024 Dept: 37
HEARING DATE: Thursday, March 14, 2024
CASE NUMBER: 23STCV09459
CASE NAME: Brock Barrett, et al. v. Mauricio Menache, et al.
MOVING PARTY: Defendants Mauricio Menache as an
individual and trustee of the Mauricio Menache Revocable Living Trust dated
January 28, 2022, and Alexandra Menache
OPPOSING PARTY: Plaintiffs Brock and Sam Barrett and Maurice Dupre
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer with Motion to
Strike
OPPOSITION: 1 March 2024
REPLY: 7
March 2024
TENTATIVE: Defendants’ demurrer is overruled as to the
fourth cause of action for trespass, eighth cause of action for breach of the
Tenant Anti-Harassment Ordinance, ninth cause of action for breach of Bus.
& Prof. Code section 17200, tenth cause of action for IIED, and sustained
with leave to amend as to the fifth cause of action for negligence and sixth
cause of action for nuisance. Defendants’ motion to strike is granted with
leave to amend. Plaintiff is given 30 days leave to amend. OSC re: Amended
Complaint set for __. Defendant to give notice.
Background
On April 27, 2023, Brock and Sam Barrett
and Maurice Dupre (collectively “Plaintiffs”), filed a Complaint against
Mauricio Menache as an individual and trustee of the Mauricio Menache Revocable
Living Trust dated January 28, 2022; Alexandra Menache (collectively
“Defendants”); and Does 1 to 10.
The operative First Amended Complaint
(“FAC”), filed December 21, 2023, alleges ten causes of action: (1) breach of
written contract, (2) breach of the covenant of quiet enjoyment, (3) breach of
implied warranty of habitability, (4) trespass, (5) negligence, (6) nuisance,
(7) breach of implied covenant of good faith and fair dealings, (8) breach of
the tenant anti-harassment ordinance, (9)
breach of Bus. & Prof. Code § 17200, and (10) intentional infliction
of emotional distress.
On February 16, 2024, Defendants filed a
demurrer with a motion to strike. Plaintiffs oppose the Motion. The matter is
now before the court.
I. Legal Standard
A. Demurrer
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.)¿¿
B. Motion to Strike
¿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”].)¿¿¿¿
C. Leave to Amend
“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.)¿¿¿
II. Demurrer[1]
A. Summary
of Allegations in First Amended Complaint (“FAC”)
Plaintiffs
have been tenants of the residential property located at 1859 N. Curson Avenue,
Los Angeles, CA 90046 (the “Subject Property”) for about 25 years. (FAC ¶¶ 2,
3.5-7) The Subject Property contains two rental units, with the Rear United
originally leased by the Brock and Sam Barrett in 1998. (FAC ¶ 16, Ex. 1.) In
2000, Sam’s brother, Plaintiff Maurice Dupre, also moved into the Rear Unit
with the landlord's permission. (FAC ¶ 16.) In 2005, the tenants of the Front
House vacated the unit, and the landlord leased the Front House to Plaintiffs.
(FAC ¶ 17, Ex. 2, 3.) Plaintiffs’ access included access to two double garages
used as a garage, storage area, and workspace along with a gated and enclosed
carport and driveway in front of the Real Unit and parking spaces in front of
the Rear Unit and Front House. (FAC ¶ 18.)
Defendant
Mauricio Menache (“Mauricio”) purchased the Subject Property on or about
February 9, 2022. (FAC ¶ 23.) Mauricio functions as the day-to-day manager of
the Subject Property and is believed to be the co-owner of the Subject Property
along with Defendant Alexandra Menache (“Alexandra”). (FAC ¶¶ 10, 11.) As part
of the escrow process, tenant estoppel certificates were issued for each of the
two units on the Subject Property. (FAC ¶ 24, Ex. 4, 5.) Plaintiffs assert that
after purchasing the property, Defendant Mauricio became frustrated that he
could not immediately evict the Plaintiffs as they were tenants protected under
the Rent Stabilization Ordinance and the City of Los Angeles’ Temporary
Protection of Tenants During Covid-19 Pandemic such that Mauricio took his
frustrations out on Plaintiffs.
This
included the removal of over 40 mature trees from the Subject Property under
the guise of landscaping maintenance, which resulted in loss of privacy for
Plaintiffs and significant damage to Plaintiff’s Personal Property. (FAC ¶
28-30.) The personal property destroyed includes “shade sails and associated
cables that were cut down and damaged, the gas tank on Plaintiff BROCK’s vintage
motorcycle was dented, and Plaintiffs’ ornamental bushes and river rock were
destroyed, among other things.” (FAC ¶ 31.) On December 9, 2022, while removing
the tree, the contractor ruptured a natural gas line due to negligent digging,
after which he and his team left the Subject Property without notifying
Plaintiffs of the emergency. (FAC ¶ 35.) The fire department was able to secure
the ruptured gas line. (FAC ¶ 35.) However, Defendant Maurico canceled the
plumber that was scheduled to repair and restore the gas line and told
Plaintiffs that because his contractor was on holiday, Plaintiffs would be
without natural gas for “one and one-half months.” Plaintiffs had to call the
Los Angeles Housing Department to prompt Defendant Mauricio to proceed with
repairs. Gas and hot water were not
fully restored until December 30, 2022. (FAC ¶ 39.)
Defendants
also caused four 3-Day Notices to Perform Covenant or Quit on December 20,
2022, on the Front House and two to the Real Unit. (FAC ¶ 40, Ex. 7.) On
January 10, 2023, Defendant served two 3-Day Notices to Quit to the Front House
and Rear Units. (FAC ¶ 41, Ex. 7.) Brock and Sam Barrett were accused of
allowing unauthorized occupants onto the Subject Property in violation of
section 3 of the Tenant Estoppel Certificate and Maurice Dupre was accused of
using the Subject Property for commercial purposes in violation of Section 8 of
the Lease. (FAC Ex. 7.) Plaintiffs assert the accusations were false. (FAC ¶
42.) On January 17, 2023, Defendants filed an Unlawful Detainer action against
Plaintiffs based on the 3-Day Notices. (FAC ¶¶ 43, 44, Ex. 8, 9.) The Unlawful
Detainer Action was voluntarily dismissed on June 7, 2023. (FAC ¶ 56, Ex. 13.)
On
March 23, 2023, Defendants’ attorney informed Plaintiffs that Defendant
Mauricio intended to install a surveillance camera for security purposes, which
the Plaintiffs refused to consent to because they already had cameras installed
for the same purpose. (FAC ¶ 45.) Nevertheless, an audio monitoring
surveillance device was installed to “stalk and harass Plaintiffs.” (FAC ¶ 46.)
Plaintiffs further assert that in violation of zoning laws, on March 28, 2023,
Defendant issued a 30-day Notice of Removal of Tenant Parking, effective May 1,
2023, that required Plaintiff to vacate their garage parking space and
workspace, as well as limiting access to laundry facilities and cutting off
access to the entry of their units, which was located inside the gated carport.
(FAC ¶ 47.)
Plaintiffs
maintain that Defendant Mauricio engaged in a Pattern of Harassment, Trespass
and Nuisance including issuing on May 10, 2023, a Notice of Entry for May 12,
2023, to “exhibit the rental unit to workmen or contractors” which Plaintiffs
assert was vague because it did not provide the actual purpose of this
“exhibition” despite Plaintiffs’ not requesting repairs. (FAC ¶51.) Mauricio
visited the property with “his vicious security dog and 4 landscapers” for “no
apparent legitimate purpose other than to annoy and disturb the quiet enjoyment
of the Plaintiffs.” (FAC ¶ 52.) Defendant also issued an invalid 30 Day Notice
on May 31, 2023, for unpaid rent even though at the time the Unlawful Detainer
Action suspended rental payment. (FAC ¶ 55, Ex. 11-13.)
Without
citation to the specific citation to the applicable “violation of federal,
state and local law,” Plaintiffs assert that Defendant Mauricio improperly
designated the Front House and Rear Unit by “tagging the doors” and assigning
numbers “1” and “2” to the units. (FAC ¶¶ 53, 54.) Defendant Mauricio issued a
3-day Notice for violation of the Lease by the Front House Unit for use of the
garage unit for storage despite the Estoppel Certificate stating that tenants
can use the garage for storage. (FAC ¶ 58, Ex. 4, 15.) On August 4, 2023,
Defendant posted a Notice of Entry to determine whether Plaintiffs were using
the garage. (FAC ¶ 60.)
Plaintiffs
assert the notice was invalid because it was issued on less than 24 hours’
notice and did not state a proper basis for entry. (FAC ¶ 61.) Moreover, Plaintiffs
informed Defendant Mauricio that he was trespassing, told him to leave, but he returned
with a locksmith and “briskly traversed the private carport, approached the
double garage, and immediately instructed his agent to saw off the Plaintiffs’
padlock.” (FAC ¶ 64.) Defendant destroyed and removed Plaintiffs’ padlock,
opened and entered the garage, and “traversed the entire width of the garage
while continuing to extensively video all of the Plaintiffs’ personal
property.” (FAC ¶ 65, Ex. 16.) On August 10, 2023, Defendant posted another
-Day Notice to the Front House Unit “for violating the terms of the lease for
use of the garage as a storage unit.” (FAC ¶ 71.)
Plaintiffs
filed this action on April 7, 2023, and the operative First Amended Complaint
on December 21, 2023. Defendants now
demur to Plaintiffs’ fourth, fifth, sixth, eighth, ninth, and tenth causes of
action alleged in the FAC.
B. Fourth
Cuse of Action – Trespass
“The elements of trespass are: (1) the plaintiff's ownership or
control of the property; (2) the defendant's intentional, reckless, or
negligent entry onto the property; (3) lack of permission for the entry or acts
in excess of permission; (4) harm; and (5) the defendant's conduct was a
substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory
Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)
Defendants
assert that Plaintiffs fail to assert that they had sole and exclusive
possession of the Subject Property such that any access by Defendants
constituted trespass.
According
to the Estoppel Certificate for the Rear Unit, the tenant has access to storage
and the “North 2 Garages and open space in from of the 2 North Garages” while gardening and pool services were to be
provided by the landlord. (FAC Ex. 4.) The Estoppel Certificate for the Front
House Unit states that access includes the open space in front of the garage
which is “contiguous with the south wall of Rear Apartment Stairs” with
gardening services provided by the landlord. (FAC Ex. 5.)
The
Lease for the Front Unit states under “ENTRY” states:
Upon
not less than 24 hours’ notice, Tenant shall make the premises available during
normal business hours to Landlord, authorized agent or representative, for
purpose of entering to (a) make necessary or agreed repairs, decorations,
alterations or improvements or supply necessary or agreed services, or (b) show
the premised to prospective or actual purchasers, mortgages, tenants, or
contractors. In an emergency, Landlord, authorized agent or representative may
enter the premises, at any time, without prior permission form Tenant.
(FAC
Ex. 5.)
The
Lease for the Rear Unit states under “ENTRY” states:
Tenant
shall make the Premises available to Landlord, authorized agent, or
representative, for the purpose of entering to make necessary of agreed
repairs, decorations, alteration, or improvements, or to supply necessary or
agreed services, or to show the Premises to prospective or actual purchasers,
tenants, mortgages, lenders, appraisers, or contractors. Landlord and Tenant
agree that four hours’ notice (oral or written) shall be reasonable and
sufficient notice. In an emergency, Landlord, authorized agent, or
representative may enter the Premises, at any time without prior notice.
(FAC
Ex. 5.)
Based
on the terms of the Lease, Defendants had the authority to enter the gardening
space and pool area to provide gardening or “landscaping” services and pool
services. (FAC Ex. 4, 5.) Accordingly, Plaintiffs fail to allege that ownership
and control of the gardening and pool area belonged exclusively to Plaintiffs
such that Defendants are guilty of trespass for being in said areas.
Plaintiffs
fail to state what applicable statute made Defendants’ renumbering of the units
in the Subject Property illegal. Plaintiffs
also fail to allege that any painting of Plaintiff’s entry doors from the
outside constituted trespass because the outside of the entry doors was under
Plaintiffs’ exclusive control. Plaintiffs also fail to allege where the audio
surveillance was installed and if it was an area under the exclusive control of
the Plaintiffs which would make the Defendants' installation of the
surveillance constituted trespass.
The June 29, 2023, 3-Day Notice to Cure or Quit, pertained
to the garage being purporting used as “an un unpermitted storage unit room in
violation of Sections 91.104.2.5, 109.1, 91.8105, 91.8105, 91.8203 and 91.8204
of the Los Angeles Municipal Code[.]” (FAC Ex. 15.) Whether the Friday, August
4, 2023, Notice of Entry was invalid and did not provide a proper basis for
entry remains a disputed issue of fact because Defendants failed to point to a
Lease term or statute that allows the Landlord to enter the premises to ensure
compliance with a Notice to Cure. Accordingly, the validity of the August 4, 2023,
Notice of Entry is disputed as is the Defendants’ subsequent trespass into the
Plaintiffs’ garage space. Whether Defendant Mauricio’s entry was authorized
under Civ. Code § 1954 to enter the garage is also a disputed issue of fact not
subject to demurrer. (See Fuhrman v. California Satellite Systems (1986)
179 Cal.App.3d 408, 422.)
Accordingly,
the demurrer to the fourth cause of action is overruled.
C. Fifth Cause of Action – Negligence
Negligence, premises liability, and negligent hiring/retention
claims have the same elements. “The elements of a cause
of action for negligence are well established. They are (a) a legal duty to use
due care; (b) a breach of such legal duty; [and] (c) the breach as the
proximate or legal cause of the resulting injury.” (Ladd v. County of San
Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].) “A duty
may arise through statute, contract, or the relationship of the parties.” (Lichtman
v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920 [internal
quotations and citations omitted].) The existence of a legal duty is a question
of law for the court to decide. (Adams v. City of Fremont (1998) 68
Cal.App.4th 243, 265.) “However, the elements of breach of that duty and
causation are ordinarily questions of fact for the jury's determination.” (Vasquez
v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.)
Defendants assert that the negligence claim is improperly pled
because Plaintiff fails to state what hazardous and dangerous condition the
Defendants knew about.
The FAC alleges that Defendants owed a duty to “not to interfere
with Plaintiffs’ quiet enjoyment and to avoid damaging Plaintiffs’ personal
property.” (FAC ¶ 105.) “By way of an additional example, Defendants were
negligent when they willfully and wantonly failed to forewarn Plaintiffs of the
hazardous and dangerous conditions that would result from an extensive tree
removal as was undertaken by Defendant MAURICIO.” (FAC ¶ 107.)
The court agrees that the Plaintiffs fail to explain what
“hazardous and dangerous” condition Mauricio had knowledge of in regard to tree
removal or what specific conduct he engaged in that made the tree removal a
hazardous and dangerous activity, such that Defendants owed a duty to warn.
Accordingly, the demurrer to the fifth cause of action is sustained with leave
to amend.
D. Sixth Cause of Action – Nuisance
“A nuisance is statutorily defined as anything ‘injurious to
health’ or ‘indecent, or offensive to the senses, or an obstruction to the free
use of property’ that interferes ‘with the comfortable enjoyment of life or
property....’” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
citing Civ. Code, § 3479.) “[T]o proceed on a private nuisance theory the
plaintiff must prove an injury specifically referable to the use and enjoyment
of his or her land.” (Monks v. City of Rancho Palos Verdes (2008) 167
Cal.App.4th 263, 302.) “Residential tenants are typically deemed to have a sufficient
property interest to confer standing to bring an action for nuisance.” (Stoiber
v. Honeychuck (1980) 101 Cal.App.3d 903, 920 (Stoiber).)
Defendants demurrer to the sixth cause of action on the basis that
Plaintiffs do not have standing to bring a nuisance cause of action. However,
under Stoiber, Plaintiffs have standing if the Lease confers an interest
in the property. The FAC alleges that “Defendants misconduct” constituted
nuisance because Defendants’ misconduct “substantially interferes with the free
use and enjoyment of Plaintiffs’ rental units, and wrongfully and unreasonably
interferes with Plaintiffs’ enjoyment of life.” (FAC ¶ 113.) This included
intentional trespass “among other things” by “illegally [placing] an
audio/video recording device that infringes upon the Plaintiffs’ privacy and is
intended to harass, oppress and constructively evict Plaintiffs[.]” (FAC ¶
114.)
The court finds that the nuisance cause of action is not
sufficiently pled because it fails to plead facts as to what specific actions
constituted nuisance sufficient to support the finding that there was
“substantial interference with the use and enjoyment of the premises not merely
de minimis interference.” (Stoiber, supra, 101 Cal.App.3d at p.
920.) Therefore, the demurrer to the sixth cause of action is sustained with
leave to amend.
E. Eighth
Cause of Action – Breach of Tenant Anti-Harassment Ordinance
Article 5.3 of Chapter IV the Los Angeles
Municipal Code (“LAMC”) prohibits tenant harassment. (LAMC, § 45.33 [defining
harassment].) “An aggrieved tenant under this article, or any person,
organization, or entity who will fairly and adequately represent the interests
of an aggrieved tenant(s) under this article, may institute civil proceedings
as provided by law, against any landlord violating any of the provisions of
this article and any person who aids, facilitates, and/or incites another to
violate the provisions of this article, regardless of whether the rental unit
remains occupied or has been vacated due to harassment.” (LAMC §
45.35(A).)
Defendants demur to the eighth cause of action on
the basis that Defendants’ actions had a lawful purpose of ensuring the repair,
maintenance, and renovation of the Subject Property. Whether the Defendants’
conduct was privileged and done in furtherance of the Landlord’s duty regarding
the Subject Property remains a disputed issue of fact as the Plaintiffs allege
that the Unlawful Detainer Action and the Notice to Quit were without merit and
done to harass them into vacating the property. (FAC ¶¶ 40-44, Ex. 6, 7, 8, 9.)
Plaintiffs further allege that the 30-Day Notice of Removal of Tenant parking
was also improper and harassing and materially changed the terms of the Lease.
(FAC¶ 47.)
Therefore, the demurrer to the eighth cause of
action is overruled.
F. Ninth Cause of Action – Breach of Bus.
& Prof. Code § 17200
Business and Professions Code § 17200 (“UCL”)
prohibits “any unlawful, unfair or fraudulent business act or
practice.” (Bus. & Prof. Code, § 17200; see Clark v. Superior
Court (2010) 50 Cal.4th 605, 610.) To plead this statutory claim, the
pleadings must state with reasonable particularity the facts supporting the
statutory elements of the violation. (Khoury v. Maly's of California,
Inc. (1993) 14 Cal.App.4th 612, 619.)
“An unlawful business practice or act is an act
or practice, committed pursuant to business activity, that is at the same time
forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th
965, 969.) “A business practice is unfair within the meaning of the UCL if it
violates established public policy or if it is immoral, unethical, oppressive
or unscrupulous and causes injury to consumers which outweighs its benefits.” (McKell
v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) Lastly, a
fraudulent business practice claim under section 17200 “is not based upon proof
of the common law tort of deceit or deception, but is instead premised on
whether the public is likely to be deceived.” (Pastoria v. Nationwide Ins.
(2003) 112 Cal.App.4th 1490, 1499.)
Defendants demur to the ninth cause of action on
the basis that the cause of action is not pled with specificity.
The FAC alleges that as owners and landlords,
Defendants were obligated to provide peaceful and habitable premises and that
Defendants failed to abate known issues while also repeatedly harassing
Plaintiffs and demanding rent. (FAC ¶¶ 135, 136.) Such contact consulted
“unlawful and unfair business practice” because they violated Civil Code § 1927
(prohibiting landlord infringement of tenant quiet enjoyment) and section 1954
(prohibiting landlord trespass; Defendant’s failure to conform to Notice of
Entry requirements caused damage to Plaintiffs personal property) and the Los
Angeles rent control statute (prohibiting landlord from endeavoring to recover
possession, issuing a notice terminating tenancy, or recovering possession of a
rental unit in the City of Los Angeles unless the landlord has a legitimate
just cause for eviction”). (FAC ¶ 137.)
Defendants also violated the Los Angeles Tenant Anti-Harassment
Ordinance No. 187-109. (FAC ¶ 138.)
The court finds that Plaintiffs have properly
pled a UCL claim under the unfair prong of the UCL as they allege statutory
violations. Because a demurrer does not lie in a portion of a cause of action,
the demurrer to the ninth cause of action is overruled. (See PH II, Inc. v.
Superior Court (1995) 33 Cal.App.4th 1680, 1682; Fremont Indemnity
Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)
G. Tenth
Cause of Action – Intentional Infliction of Emotional Distress
The tort of
Intentional Infliction of Emotional Distress (IIED) is committed when the
defendant's conduct is intentionally intrusive and outrageous and has a
traumatic effect on the plaintiff’s emotional tranquility. (Alcorn v. Anbro
Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior may be considered
outrageous if a defendant (1) abuses a relation or position which gives him
power to damage the plaintiff’s interest; (2) knows the plaintiff is
susceptible to injuries through mental distress; or (3) acts intentionally or
unreasonably with the recognition that the acts are likely to result in illness
through mental distress.” (Bogard v. Employers Cas. Co. (1985) 164
Cal.App.3d 606, 616.)
Defendants maintain
that the hiring of landscapers and arborists cannot be considered outrageous
conduct as it was in furtherance of Defendants’ duties as a landlord. The FAC
alleges that Defendants engaged in an intentional course of repeated harassing
conduct, including trespass, to wrongfully evict Plaintiffs thereby subjecting
Plaintiffs “to severe mental stress and anguish, physical strain,
embarrassment, humiliation, fear, that has resulted in mental suffering and
physical harm.” (FAC ¶¶ 142, 145 146.)
The court finds that
the FAC sufficiently alleges that Defendant Mauricio violated the landlord-tenant
relationship by failing an Unlawful
Detainer Action based on Notices to Quit that were without merit and done with
the intent of harassing the Plaintiffs into vacating the property. (FAC ¶¶
40-44, Ex. 6, 7, 8, 9.) Plaintiffs further allege that the 30-Day Notice of
Removal of Tenant parking was also improper and harassing and materially
changed the terms of the Lease without proper justification. (FAC ¶ 47.) Whether
Defendant Mauricio’s conduct was privileged and done in the furtherance of his
duties as the landlord to maintain and repair the Subject Property, remains a
disputed issue of fact. Accordingly, the demurrer to the eleventh cause of
action is overruled.
III. Motion to Strike
Defendants’
move to strike the following from the FAC:
1)
Page 2, paragraph 4, lines 15-17:
2)
Page 18, paragraph 103, lines 19-21”
3)
Page 20-21, paragraph 122, lines 27-02;
4)
Page 24, paragraph 140, lines 21-22:
5)
Page 26, paragraph 151, lines 04-05:
6)
Page 26, paragraphs 3, lines 19 and 28;
7)
Page 27, paragraphs 3, lines 08 and 28;
8)
Page 28, paragraphs 3, lines 10 and 27.
To state a claim for
punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts
showing that the defendant has been guilty of malice, oppression or fraud. (Smith
v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for
punitive damages must be pled with specificity; conclusory allegations devoid
of any factual assertions are insufficient. (Ibid.)¿¿“Malice” is defined
in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to
cause injury” or “despicable conduct which is carried on by the defendant with
a willful and conscious disregard of the rights or safety of others.”
“Oppression” is defined as “despicable conduct subjecting a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” (Civ. Code §
3294(c)(2).) The term “despicable” has been defined in the case law as actions
that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) 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).
When the defendant is a¿corporation, “the oppression, fraud, or malice must be
perpetrated, authorized, or knowingly ratified by an officer, director, or
managing agent of the¿corporation.” (Wilson v. Southern California Edison
Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).)
The court finds that the
Plaintiffs failed to plead specific facts to show that Defendant Mauricio acted
with malice, fraud, or oppression in removing the 40-mature trees or in
commenting negligence and nuisance against the Plaintiffs. While Plaintiffs
provide various instances of alleged misconduct that constituted harassment
such as not timely repairing the gas line, bringing a “Belgian Malinos security
dog” onto the property, and giving vague notices of access to the Subject
Property, the FAC is devoid of facts showing that such conduct was done with
malice, fraud, and oppression and how such conduct was ratified by the other
Defendants.
Based on the above,
the motion to strike is granted with leave to amend.
Conclusion
[1]
Pursuant to CCP §§ 430.41 and 435.5(a), the meet
and confer requirement has been met. (Pham
Decl. ¶ 3, Ex. A.)