Judge Gail Killefer, Case Number: 24STCV19102, Date: 2024-10-29 Tentative Ruling

MOVING PARTY: Defendants CPMC Inc. dba Westhome (erroneously sued and named as West Home, a Property Management Co. dba VIVE LA); and Lari Gershwin LLC

TENTATIVE: Defendants’ demurrer to the third cause of action is sustained with leave to amend and overruled as to the fourth and fifth causes of action. Defendants’ motion to strike is granted as to the request to strike punitive damages but denied as to the request to strike the request for attorney’s fees. Plaintiff is granted 10 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for November 19, 2024, at 8:30 a.m.. Defendant to give notice.

On July 31, 2024, Even Andrew Sheedy (“Plaintiff”) filed a Complaint against Lari Gershwin, LLC; Westhome dba Vive LA (collectively “Defendants”); and Does 1 to 10. The Complaint alleges six causes of action:

Defendants now demurrer to the third, fourth, and fifth causes of action. Plaintiff opposes the Motion. 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, 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.)¿¿¿

Demurrer[1]

Plaintiff was a tenant of a unit located in the Subject Property located in Los Angeles, CA since December 24, 2014. (Compl., ¶¶ 1, 11.) Plaintiff alleges that since he moved into the unity, he experienced the following issues: mold due to leaking of the HVAC unit, “an infestation of bugs, larva, eggs, and bug droppings”, a cockroach infestation, and “strong urine and feces smell in his bathroom was caused by the bats.” (Id., ¶¶ 11-41.)

In October 2023, Plaintiff filed a complaint with the County of Los Angeles, Department of Public Health. (Compl., ¶ 40.) In December 2023, Plaintiff emailed Defendants asking for a second time to be moved to another unit, but the request was denied. (Id., ¶ 48.) Sometime after January 1, 2024, Plaintiff met with the Los Angeles County health inspector, who documented the bat feces in the unit. (Id., ¶ 51.) Plaintiff alleges that he continued to find bat droppings and the cockroach infestation remained unresolved. (Id., ¶¶ 51-55.)

On March 10, 2024, Plaintiff was served with an unlawful detainer complaint which was dismissed prior to trial or resolution in early June 2024. (Compl., ¶ 56.) On July 31, 2024, Plaintiff filed this action. Defendant now demurs to the third, fourth, and fifth causes of action.

Civil Code § 1942.4 provides, in relevant part, that a landlord may not collect rent, increase a tenant’s rent, or issue a three day notice to pay rent or quit if (i) the subject dwelling lacks any of the affirmative characteristics listed in Civil Code § 1941.1 or is declared substandard under and pursuant to Health & Safety Code § 17920.3 because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the building; (ii) a public officer has notified the landlord of his or her obligation to abate or repair the substandard conditions; (iii) the subject defects have not been abated within 35 days; (iv) the delay is without good cause; and (v) the subject defects were not the fault of the tenant.

Defendant argues that the third cause of action fails because the Complaint does not allege that Defendant was cited and received written notice of the substandard conditions Plaintiff complains of.

(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

The Complaint states that Plaintiff complained to the County of Los Angeles, Department of Public Health in October 2023 and that an inspector came to inspect the unit sometime after January 1, 2024. There are no allegations, however, that a County inspector issued a written citation or notice to Defendants about the substandard conditions and that 35 days from the date of service of the notice, Defendants failed to abate the conditions. (Compl., ¶¶ 40, 50.)

Moreover, the Complaint alleges that the County inspector only documented the bat feces not that the unit “substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.” (Id., ¶ 50; Civ. Code, § 1942.4.) The Complaint is silent as to what the County’s notice to Defendants stated and if the inspector did in fact find that conditions at the unit were substandard.

Accordingly, the demurrer to the third cause of action is sustained with leave to amend.

Civil Code § 1952.5 is an anti-retaliatory eviction statute and states in the relevant party:

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

Defendant asserts that the fourth cause of action is insufficiently pled because Plaintiff did not allege that Defendants retaliated against Plaintiff due to Plaintiff exercising his rights under section 1942.5(a) or to an agency regarding the tenability of the unit.

“We therefore hold that under Civil Code section 1942.5, a tenant, who is not in default in the payment of rent, may invoke the defense of retaliatory eviction, upon proof that he has made an oral complaint to the landlord regarding the tenantability of the premises.” (Kemp v. Schultz (1981) 121 Cal.App.3d Supp. 13, 18.) Here, the Complaint alleges that in October 2023 and January 2024, Plaintiff made complaints about the unit to the county health inspector. (Compl., ¶¶ 40 50.) The Complaint also alleges that Defendants were notified by Plaintiff about the mold, bug infestation, and the bats feces. (Id., ¶¶ 11-41.) Subsequently, on March 10, 2024, Plaintiff was served with an Unlawful Detainer complaint that was later dismissed. (Id., ¶ 56.)

At the pleading stage, Plaintiff is not required to prove his allegations, and the court finds that the facts in the Complaint, as set forth above, are sufficient to support a claim for retaliatory eviction. The demurrer the fourth cause of action is overruled.

D. Fifth Cause of Action - Violation of Tenant Anti-Harassment Ordinance (TAHO)

In 2021, the Los Angeles City Council adopted the Tenant Anti- Harassment Ordinance (TAHO) #187109 which prohibits landlords from harassing tenants by actions such as removing housing services, withholding repairs, or refusing to accept rent payments. The TAHO Ordinance states in relevant part:

Tenant Harassment shall be defined as a landlord’s knowing and willful course of conduct directed at a specific tenant or tenants that causes detriment and harm, and that serves no lawful purpose, including, but not limited to, the following actions:

2. Failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; or failure to follow applicable industry standards to minimize exposure to noise, dust, lead paint, asbestos, or other building materials with potentially harmful health impacts.

6. Misrepresenting to a tenant that the tenant is required to vacate a rental unit or enticing a tenant to vacate a rental unit through an intentional misrepresentation or the concealment or omission of a material fact.

7. Threatening or taking action to terminate any tenancy including service of any notice to quit or other eviction notice or bringing action to recover possession of a rental unit based on facts which the landlord has no reasonable cause to believe to be true. No landlord shall be liable under this subsection for bringing an action to recover possession of a rental unit unless and until the tenant has obtained a favorable termination of that action.

8. Threatening to or engaging in any act or omission which interferes with the tenant’s right to use and enjoy the rental unit or whereby the premises are rendered unfit for human habitation and occupancy.

16. Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of a tenant(s) and that cause, are likely to cause, or are committed with the objective to cause a tenant(s) to surrender or waive any rights in relation to such tenancy.

Defendants assert that they did not engage in any harassing conduct and that repairs were timely as evidenced by the allegations in the Complaint that repairs were made. The court disagrees.

The Complaint sufficiently alleges that Plaintiff complained about a bat infestation sometime before September 1, 2022, when he informed Westhome’s maintenance manager. (Compl., ¶ 21.) “Defendants acknowledged the validity of Plaintiff’s concerns and complaints related to the Bats and the smell of urine, but did not take necessary steps to alleviate the toxic problem.” (Id., ¶ 32.) It would be more than a year, on October 13, 2023, that Defendants addressed the complaint and hired a wildlife trapper. (Id., ¶¶ 33, 36.) Afterwards, Plaintiff would continue to find bat feces and in November 2023 Plaintiff began to request relocation to another unit. (Id., ¶¶ 46-47, 49.) On March 10, 2024, Plaintiff was served with the Unlawful Detainer complaint. (Id., ¶ 56.)

The facts above support the allegation Defendants knowingly and willfully engaged in a course of conduct that served no lawful purpose by failing to perform and make timely repairs in relation to the bat infestation (TAHO #187109(2)) and taking action to terminate Plaintiff’s tenancy by filing an Unlawful Detainer action against Plaintiff “which the landlord has no reasonable cause to believe to be true” (TAHO #187109(7)). (Compl., 86(d).)

Defendants move to strike Plaintiff’s request for punitive damages and attorney’s fees:

1) All Portions of the complaint seeking punitive damages against the Defendants:

(a) Specifically, Page 14, ¶ 83 of the complaint, which states: “Defendants refusal to

correct the intolerable living conditions of the UNIT and constant threat to terminate tenancy were motivated by malice in that Defendants intended to cause injury to the Plaintiff by despicable conduct which was carried on by the Defendants with a willful and conscious disregard of the rights or safety of Plaintiff, and with oppression in that Defendant engaged in despicable conduct that subjected Plaintiff to cruel and unjust hardship in conscious disregard of the rights of Plaintiff, with the intent to oppress Plaintiff and cause them to suffer injury, in that Defendants were angry at Plaintiff for asserting their legal rights under California law. Plaintiff is thus entitled to exemplary and punitive damages in an amount according to proof at time of trial.”

(b) Specifically, Page 17, ¶ 1 of the Prayer for Relief as to the Fourth Cause of Action, which states: "For damages, general, special, exemplary, and statutory in a sum according to proof at the time of trial…"

2) All Portions of the complaint seeking attorneys' fees against the Defendants:

(a) Specifically, Page 12, ¶ 71 of the complaint, which states: "As an actual, direct, and proximate result of Defendants' breach, Plaintiffs have been injured and damaged in their health, body, and have suffered emotional distress, and have sustained special, general and property damages as well as interest thereon, and other damages, including but not limited to any and all applicable and statutory attorney's fees and costs, and other damages, all in an amount to be proven at trial.

(b) Specifically, Page 13, ¶ 75 of the complaint, which states: "As an actual, direct, and proximate result of Defendants' breach, Plaintiff has been injured and damaged in his health, body, and have suffered emotional distress, and have sustained special, general and property damages as well as interest thereon, and other damages, including but not limited to any and all applicable and statutory attorney's fees and costs, and other damages, all in an amount to be proven at trial."

(c) Specifically, Pages 13-14, ¶ 78 of the complaint, which states: "Plaintiff is informed and believe, and herein allege, that said violations of Civil Code section 1942.4 has occurred during the last two years and continues to occur. Plaintiff has been damaged physically, mentally, and economically by Defendants' conduct. As such, Plaintiff is entitled to rent abatement in an amount to be proven at trial. Additionally, pursuant to Civil Code section 1942.4(b), each plaintiff is entitled to actual damages sustained and special damages in an amount not less than $100.00, nor more than $5,000.00, as well as reasonable attorney's fees and costs in an amount fixed by the Court, rent paying tenants, asserted their rights by complaining of the uninhabitable conditions that each were living in, however, Defendants, and DOES 1 to 10, and each of them, failed to timely and adequately make corrections.

(d) Specifically, Page 14, ¶ 82 of the complaint, which states: As a direct and proximate result of the aforementioned acts and omissions, Plaintiff have been injured and damaged in their health, body and have suffered emotional distress, and have sustained special, general and property damages as well as interest thereon, and other damages, including but not limited to any and all applicable statutory attorney's fees and costs-if any- and other damages, all in an amount to be proven at trial.

(e) Specifically, Page 15, ¶ 87 of the complaint, which states: "As a direct and proximate result of the aforementioned acts and omissions, Plaintiff has been injured and damaged in his health, body and has suffered emotional distress, and have sustained special, general and property damages as well as other damages, including but not limited to any and all applicable statutory attorney's fees and costs-if any and other damages, all in an amount to be proven at trial.

(f) Specifically, Page 17, ¶ 2 of the Prayer for Relief as to the Third Cause of Action, which states: "For Attorney fees and cost of suit reasonably incurred…"

(g) Specifically, Page 17, ¶ 5 of the Prayer for Relief as to the Third Cause of Action, which states: "Reasonable attorney's fees pursuant to Civil Code 1942.4 (b) (2)"

(h) Specifically, Page 18, ¶ 4 of the Prayer for Relief as to the Fourth Cause of Action, which states: "Reasonable attorney's fees pursuant to Civil Code Section 1942.5(i)…"

(i) Specifically, Page 18, ¶ 1 of the Prayer for Relief as to the Fifth Cause of Action, which states: "A tenant prevailing in court under this article may be awarded compensatory damages, rent refunds for reduction in housing services, reasonable attorney's fees and costs, imposition of civil penalties up to $10,000 per violation depending upon the severity of the violation, tenant relocation, and other appropriate relief, as adjudged by the court.

A. Failure to Allege a Managing Agent Acted with Malice, Oppression or Fraud

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).) Furthermore, a managing agent includes “only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 564, 566-667 (White).)

The Complaint fails to allege that a managing agent of Defendants acted with fraud, malice, or oppression or ratified such conduct. The Complaint only alleges that Plaintiff received an email from “Isaiah” about the work related to the bat issue was about to commence. (Compl., ¶ 36.) The Complaint also alleges that Plaintiff was informed by “Will”, Westhome’s maintenance manager, that it would take action regarding the bat issue. (Id., ¶ 31.) “[A] corporation is a legal fiction that cannot act except through its employees or agents[.]” (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1392.) Therefore, for Defendant entities to be guilty of malice, oppression, or fraud, a managing agent of Defendants must have engaged in or ratified such conduct. In the absence of such allegations, Plaintiff’s conclusory statement that Defendants acted with oppression are insufficient to support a claim for punitive damages.

Defendants’ request to strike punitive damages is granted with leave to amend.

Defendants assert that Plaintiff has not pled that a contract exists that would entitle Plaintiff to attorney’s fees as a prevailing party. Plaintiff does not address this contention and instead asserts that they are entitled to attorney’s fees from the statutory provisions of Civ. Code §§ 1942.4 and 1942.5 and Los Angeles County Tenant Anti-Harassment Ordinance, Section 45.35(B).

The demurrer to the third cause of action for violation of section 1942.4 has been sustained. Moreover, the Complaint does not allege that the Plaintiff is entitled to attorney’s fees under TAHO section 45.35(B). Plaintiff references Section 45.33 (also Ordinance # 187109) but that section of the ordinance does provide for attorney’s fees.

Lastly, Civ. Code § 1942.5(i) attorney’s fees provision states: “(i) In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney’s fees to the prevailing party if either party requests attorney’s fees upon the initiation of the action.” The Prayer for Relief in the Complaint specifically references section 1942.5(i) in its request for attorney’s fees. The demurrer to the fourth cause of action for violation of section 1942.5(i) has been overruled and Defendant fails to state why Plaintiff may not recover attorney’s fees for the entire action under section 1942.5(i).

Therefore, the request to strike Plaintiff’s request for attorney’s fees from the Complaint is denied.

Defendants’ demurrer to the third cause of action is sustained with leave to amend and overruled

as to the fourth and fifth causes of action. Defendants’ motion to strike is granted as to the

request to strike punitive damages but denied as to the request to strike the request for attorney’s

fees. Plaintiff is granted 10 days leave to amend. The court sets a Non-Appearance OSC RE:

Amended Complaint for November 19, 2024, at 8:30 a.m.. Defendant to give notice.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Williams Decl., ¶¶ 2-4, Ex. A, B.)