Judge Gail Killefer, Case Number: 24STCV21078, Date: 2025-01-28 Tentative Ruling

TENTATIVE: The Zapata Defendants’ demurrer to the first, second, third, fourth, and sixth cause of action are overruled. The demurrer to the fifth cause of action for nuisance is sustained without leave to amend. Plaintiff is granted 30 days leave to amend. The court sets an OSC RE: Amended Complaint for March 12, 2025, at 8:30 a.m. and continues the Case Management Conference for the same date and time. Defendant to give notice.

On August 19, 2024, Herberth Chavarria (“Plaintiff”) filed a Complaint against Century Property Management & Investment Inc. (“Century”) an Does 1 to 20. On September 23, 2024, Plaintiff filed Doe Amendments naming Doe 1 as Reynaldo Zapata and Doe 2 as Imelda Zapata (collectively “Zapata Defendants”).

2) Breach of Implied Warranty of Habitability / Tenantability (CCC Sec. 1941.1 and H&S Code 17920.3 et seq)

The Zapata Defendants now demurrer and move to strike the Complaint. 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(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]

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Exhibit 1: The Grant Deed for the Subject Property located at 411 Thompson Ave, Glendale, CA 91201.

The Zapata Defendants assert the demurrer and motion to strike should be sustained and granted because Plaintiff’s Opposition was due on January 14, 2025, but it was not filed until January 15, 2025. CCP § 1005(b) requires that opposing papers be served and filed at least nine court days before the hearing. Plaintiff’s Opposition was due January 19, 2025, but because it was a Sunday, the filing date was extended to Monday, January 20, 2025. (CCP, § 12(a).)

B. Zapata Defendants’ Demurrer and the Existence of An Agency Relationship

This action arises out of the various issues Plaintiff experienced as a tenant at 411 Thompson Ave., Glendale CA 91201 (the “Property”) and Defendants’ failures to cure those issue, including a rodent infestation, water and gas leaks, plumbing outages, suspected mold growth, missing screens, and uneven flooring. (Compl, ¶ 16.)

The Zapata Defendants demur to the Complaint on the basis that it fails to allege they were parties to the contract at issue, the Lease Agreement. (Compl., ¶ 7, Ex. A, B.) According, the first cause of action for breach of the Lease Agreement, and the claim for breach of the implied warranty of habitability and implied warranty of quiet enjoyment fail, as the latter two claims are dependent on the breach of contract claim. Similarly, Defendants contend that the fourth cause of action for negligence, nuisance, and constructive eviction fail because the Complaint does not allege that the Zapata Defendants were notified about the issues or were obligated to make repairs.

The Complaint alleges that Does 1 through 20 are Defendants and that that each of them are “the agents, employees, partners, joint-ventures, co-conspirators, owners, principals, and employers of the remaining ‘Defendants,’ and each of them are, and at all times herein mentioned were, acting within the course and scope of that agency, partnership, employment, conspiracy, ownership or joint venture.” (Compl., ¶ 4.)

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.) The Zapata Defendants fail to allege or show that Plaintiff’s agency allegations are insufficiently pled such that Defendants cannot be held vicariously liable for the actions of their agent, Century, took while acting within the scope of the agency relationship. “The existence of an agency relationship is typically a question of fact for the jury.” (Hughes v. Farmers Insurance Exchange (2024) 107 Cal.App.5th 73.) Moreover, so long as the Complaint alleges that Century knew and made the decision about the repairs to the Property, the Zapata Defendants can be held liable for Century’s actions, even if they did not know about the repairs. The Complaint sufficiently alleges that Defendants’ actions were authorized and/or Ratified by the other Defendants. (Compl., ¶ 4.)

The Zapata Defendants assert the breach of contract claim fails because they are not a party to the Lease Agreement. The Lease Agreement was signed between Plaintiff and “Century Property Management, herein called Owner (or Agent).” (Comp., Ex. B.) There are neither allegations in the Complaint nor evidence on the face of the Lease Agreement that shows the Zapata Defendants were the disclosed principal at the time the Lease Agreement was executed. “Since the suit for breach of the implied warranty is essentially a contractual one, the trial court correctly ruled the agents could not be held liable on the breach of warranty because an agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal [citation].) “ (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929; see also Epic Communications, Inc. v. Richwave Technology, Inc. (2009) 179 Cal.App.4th 314, 329 [“It is certainly true that an agent is not ordinarily liable on contracts he executes on behalf of a disclosed principal.”] [italics original].) The fact that the Zapata Defendants were not named in the Lease Agreement does not mean they cannot be held liable for the breaches of their agent, Century. Therefore, the demurrer to the first cause of action is overruled.

Whether an agency relationship existed between the Zapata Defendants and Century is a fact better known by the Zapatas than Plaintiff and it presents a question of fact not subject to adjudication on demurrer. “On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. [Citation.] 'A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.)

Therefore, the demurrer to the first, second, third, fourth, and sixth cause of action are overruled. Plaintiff’s opposition asserts that the nuisance clause of action is withdrawn. (Opp., at p. 5:19-20.) Accordingly, the demurrer to the fifth cause of action is sustained without leave to amend.

Defendants seek to strike Plaintiff’s request for punitive damages. The Complaint alleges that Defendants acted willfully and intentionally in refusing to make repairs. (Comp., ¶ 15.)The Complaint further asserts that Defendants’ representations about the safety, condition of the Property, and the quality of repairs “were done with malice and oppression and with a complete disregard for the truth of what was being represented and a gross disregard for the welfare, safety, rights, and the laws of the State of California. (Id., ¶¶ 52, 59.)

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).) This is because a corporation can only act through its employees. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.) The Complaint fails to name an employee or agent that was the managing agent of Defendant Century that perpetrated, authorized, or knowingly ratified the wrongful conduct. 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. Ultamar (1999) 21 Cal.4th 563, 572.) Moreover, for the Zapata Defendants to be liable for punitive damages, they must have personally engaged in the wrongful conduct or knowingly authorized or ratified the wrongful conduct.

The Zapata Defendants’ demurrer to the first, second, third, fourth, and sixth cause of action are overruled. The demurrer to the fifth cause of action for nuisance is sustained without leave to amend. The motion to strike is granted with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for March 12, 2025, at 8:30 a.m. and the continues the Case Management Conference to that same date and time. Defendant to give notice.

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