Judge Gail Killefer, Case Number: 24STCV12580, Date: 2024-09-11 Tentative Ruling

OPPOSING PARTY: Plaintiffs La’Shay Renee Davidson, individually and as Guardian ad Litem for minor children Savanna Adora Mayberry; Sa’Riya Destiny Lee; and Sasha Delilah Lee

TENTATIVE: Defendants’ demurrer to the fourth is sustained with leave to amend and the demurrer to the fifth cause of action is sustained without leave to amend. Defendants’ motion to strike is granted with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for October 2, 2024, at 8:30 a.m. The Court also advances the Case Management Conference (“CMC”) on September 30, 2024, to today, and continues the CMC to October 2, 2024, at 8:30 a.m. Defendants to give notice.

On May 17, 2024, La’Shay Renee Davidson, individually and as Guardian ad Litem for minor children Savanna Adora Mayberry; Sa’Riya Destiny Lee; and Sasha Delilah Lee (“Plaintiffs”) filed a Complaint against 1647 W 147 LLC; Youhanna Labib; Richard Chertow; Inland Pacific Management; and Does 1 to 20.

The Complaint alleges seven causes of action: 1) Breach of Implied Warranty of Habitability;

2) Tortious Breach of Implied Warranty of Habitability; 3) Negligence; 4) Intentional Infliction of Emotional Distress (“IIED”); 5) Private Nuisance; 6) Violation of Civ. Code § 1924.5; and

Defendants 1647 W 147 LLC (“LLC”) and Youhanna Labib (“Labib”) (collectively “Defendants”) now demurrer to the Complaint and seek to strike Plaintiffs’ request for punitive damages. Plaintiffs oppose both motions. The matter is now before the court.

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.)¿“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.)¿¿¿

Demurrer[1]

Plaintiffs are tenants of an apartment unit (the “Unit”) located in Gardena, CA (the “Property”). (Compl., ¶ 1, Ex. A.) From January 11, 2021, to the present, Defendant LLC has been the owner and manager of the Property and thereby ratified any tortious or wrongful conduct by its officers, directors, or managing agents, Keri Melena, Vivianne Garcia, and Patricia Guillen. (Id., ¶ 4.) Defendant Labib is a managing member of Defendant LLC and manages the day to day business of the Property and directs the conduct and business activities of Defendant LLC. (Id., ¶ 5.) Plaintiffs moved in on or about March 27, 2020, and continue to reside in the Unit. (Id., Exs. A, B.)

The Complaint alleges that Defendants intentionally and/or negligently failed to repair and maintain the Unit, the Property, and other rental units on the Property. (Compl., ¶ 13.) Defendants had actual and/or constructive notice of the various defects of the Unit and Property but failed to take timely or reasonable steps to abate and/or remedy the defects. (Id., ¶ 13.) This included undertaking repairs that were inadequate and/or exacerbated the problem. (Id.) Defendants failed to repair or abate the problems to save money and increase their cash flow and net income. (Id.) Consequently, Defendants did not spend sufficient money to repair, maintain, and control pests consistent with the applicable standard of care. (Id.)

The Unit and Apartment suffered from severe and persistent cockroach infestation, and despite knowing about the infestation, Defendants did nothing to legitimately abate the infestation and intentionally and/or negligently failed to abate or eradicate the cockroach infestation to save money and increase cash flow. (Compl., ¶ 13(a).) Chronic water leaks resulted in mold, yet D Defendants did nothing to legitimately abate the infestation and intentionally and/or negligently failed to repair and eliminate the water leaks and mold in order to save money and increase cash flow. (Id., ¶ 13(b).)The Unit and Property suffered from physical defects such as “stained and water damaged ceilings; crumbling walls; faulty heater; peeling paint and plaster; unstable, rotten, and/or deteriorated floors; torn or missing window screens; broken or deteriorated cabinets; wood rot; and other indicia of slum or substandard housing.” (Id., ¶ 13(c).) These physical defects exacerbated the vermin infestation, and the Defendants did nothing to legitimately fix the physical defects and intentionally and/or negligently failed to do so. (Id.) Consequently, Plaintiffs have suffered bodily injury, emotional distress, and property damage. (Id.)

Plaintiffs assert that Defendants knew about the above defects due to complaints from prior tenants, but Defendants repeatedly and intentionally ignored the Complaints. (Compl., ¶ 15.) “Defendants knowingly and intentionally preyed on and took advantage of Plaintiffs in failing to repair, maintain, and exterminate the Apartment.” (Id., ¶ 28.)”Defendants repeatedly failed or delayed making repairs to the Apartment and the Property. Defendants repeatedly lied to Plaintiffs that they would make repairs then failed to do so.” (Id., ¶ 29.)

Defendants now demurrer to the fourth and fifth causes of action for IIED and Private Nuisance.

B. Fourth Cause of Action – Intentional Infliction of Emotional Distress (IIED)

“A cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct by appellants with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the appellants’ outrageous conduct. [Citation.] Conduct is considered outrageous when it is ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Belen v. Ryan Seacrest Productions, LLC(2021) 65 Cal.App.5th 1145, 1164.) Whether Defendants’ conduct was outrageous, oppressive or malicious is a question of fact for the jury. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

The fourth cause of action alleges that “Defendants' conduct in intentionally failing to repair, maintain, and exterminate the Apartment and the Property was outrageous and beyond all boundaries of decency and reasonable civilized conduct.” (Compl., ¶ 44.) Defendants knew their actions would result in a severe vermin infestation “that was sure to cause Plaintiffs bodily injury and severe emotional distress.” ( Id.) Defendants failed to repair and maintain the unit in order to save money, increase their cash flow, and “intimidate Plaintiffs into not complaining and/or to cause Plaintiffs' to abandon the Apartment.” (Id.) Consequently “Plaintiffs have and continue to suffer emotional distress and related physical symptoms or bodily injury including anxiety, fright, sleeplessness, depression, nausea, worry, and fatigue.” (Id., ¶ 45.)

As Defendant LLC is a corporation, it can only act through its employees. (See Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515 [“Because a corporation is a legal fiction, it cannot act but through the agency of natural persons.”].) Plaintiffs’ fourth cause of action is devoid of facts as to which of Defendant LLC’s agents engaged in extreme and outrageous conduct. Plaintiffs failed to state to which agent they made complaints about the vermin infestation, water leaks, mold, and physical defects. Plaintiffs failed to state which agent of Defendant LLC ignored the complaints and which agent acted intentionally to ensure that the repairs were inadequate and instead exacerbated the problems. (Compl., ¶¶ 13, 15.) The Complaint is devoid of facts as to how often Plaintiffs complained about problems, how often they were ignored, what and for how long were repairs ignored, and if repairs were done, why were the repairs intentionally negligent.

In a conclusory manner, Plaintiffs assert that a managing agent of Defendant LLC “authorized, directed, and/or ratified” Defendants’ conduct without stating facts as to how such conduct was authorized, directed and/or ratified and which specific agent was responsible the conduct. (Compl., ¶¶ 16, 28, 30.) “These conclusionary allegations, which allege no specific acts, are insufficient to survive demurrer.” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 366, fn. 8.) Plaintiffs also allege they were harassed and intimidated to not complain about the Unit, but fail to state who harassed Plaintiffs and what conduct the agent engaged in that constituted harassment. (Compl., ¶ 30.)

The defendant must either intend their conduct to inflict injury or engaged in it with the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) In sum, there are no facts that Defendant LLC is vicariously liable for the extreme and outrageous conduct of its agents because the Complaint is devoid of facts illustrating specific instances of agents engaging in intentional or reckless conduct such as intentionally failing to repair or intentionally making negligent repairs to the Unit and Property.

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; see Civ. Code, § 3481.) 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.) Moreover, California recognizes claims for nuisance based on residential habitability issues such as the ones alleged here. (Ibid.)

The fifth cause of action asserts that “the vermin infestation, mold, water leaks, and physical defects impacting the Property harmed Plaintiffs' health resulting in respiratory and dermatological symptoms, bodily injury, emotional distress and other health problems.” (Compl., ¶ 49.) “These conditions, which were created by Defendants' ownership, operation and management of the [Unit].” (Id, ¶ 50.)“Defendants’ negligent ownership, operation and management of the Property generated no public benefit, and Plaintiffs never consented to such conduct. Defendants' ownership, operation and management of the Property and the physical condition of the Property constituted a private nuisance within the meaning of Civil Code, Sections 3479 and 3481.” (Id., ¶ 52.)

Defendant argues that the fifth cause of action is duplicative of the third cause of action for negligence. “ ‘Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 citing El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.)

The third cause of action is premised on the fact that Defendants failed to comply with their legal obligations governing care and maintenance of residential dwellings as set forth in “Civil Code, Sections 1941 and 1941.1, Health & Safety Code, Section 17920.3, the California Code of Regulations, the Los Angeles County Code, local codes and other statutes, regulations or local ordinances designed and intended to regulate the operation and management of rental properties.” (Compl., ¶ 38.) By failing to adhere to the proper standard of care, “Defendants failed to properly operate and manage the Property, the [Unit] and the remaining rental units at the Property as required by law.” (Id., ¶ 39.) “Defendants' breach of the applicable standard of care forced Plaintiffs to live in an uninhabitable dwelling infested with vermin and rife with water leaks and mold and other defects which harmed Plaintiffs and their children.” (Id.)

The court finds that the fifth cause of action as pled is duplicative of the third cause of action for negligence. “Where the ‘overriding issue’ is a ‘traditional tort’ like negligence, that traditional tort ‘should not be litigated under the guise of a nuisance action.’ ” (Bregan v. John Stewart Company (N.D. Cal., Feb. 19, 2024, No. 23-CV-01823-LB) 2024 WL 695400, at *12 citing El Escorial Owners' Assn., supra, 154 Cal.App.4th at p. 1348.) The Complaint fails to show how the nuisance claim differs from the negligence claim. The negligence and nuisance claims are premised on the same facts, Defendants’ failure to properly operate and manage the Unit and the Property as required by law. The negligence cause of action asserts that lack of care caused “Plaintiffs [to] have suffered and continue to suffer bodily injury, emotional distress and property damage[.]” (Compl., ¶ 40.) The nuisance claim similarly asserts that “Defendants' negligent ownership, operation and management of the Property” caused “Plaintiffs [to] have suffered and continue to suffer actual damage including, but not limited to, bodily injury, emotional distress, and property damage[.].” (Id., ¶ 40.)

Accordingly, the court agrees that as pled, the nuisance claim “is merely duplicative pleading which adds nothing to the complaint by way of fact or theory[.]” (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) The demurrer to the fifth cause of action is sustained without leave to amend.

Defendants seek to strike the Complaint’s request for punitive damages as requested in Paragraphs 34, 41, 46, and 54 and the Prayer for Relief.

To state a claim for punitive damages under Civil 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 “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.)¿¿

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).)

As stated above, the Complaint fails to identify which managing agent of Defendant LLC engaged in malice, oppression, or fraud. Conclusory allegations devoid of facts showing how a managing directed, authorized, or ratified “wrongful conduct” is not sufficient to support a claim for punitive damages against a corporation. The Complaint is also devoid of allegations as to who engaged in malice, oppression, or fraud. Lastly, the Complaint is unclear as to whether the malice, fraud, or oppression is due to the managing agents’ inaction in failing to undertake repairs or affirmative conduct such as doing repairs in a negligent manner. Moreover, the fact that repairs were negligently done is insufficient to justify an award for punitive damages. “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

Defendants’ demurrer to the fourth is sustained with leave to amend and the demurrer to the fifth cause of action is sustained without leave to amend. Defendants’ motion to strike is granted with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for October 2, 2024, at 8:30 a.m. The Court also advances the Case Management Conference (“CMC”) on September 30, 2024, to today, and continues the CMC to October 2, 2024, at 8:30 a.m. Defendants to give notice.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Mantovani Decl., ¶¶ 3-6, Ex. A.)