Judge: Gary I. Micon, Case: 21STCV47138, Date: 2024-05-17 Tentative Ruling

Case Number: 21STCV47138    Hearing Date: May 17, 2024    Dept: F43

Dept. F43

Date: 5-17-24

Case #21STCV47138, James McMahon vs. Grand Apartments on Lindley, et al.

Trial Date: N/A

 

DEMURRER WITH MOTION TO STRIKE

 

MOVING PARTY: Defendant FPI Management, Inc.

RESPONDING PARTY: Plaintiff James McMahon

 

RELIEF REQUESTED

Demurrer to the Complaint

·         1st Cause of Action for Battery

·         3rd Cause of Action for Intentional Infliction of Emotion Distress

·         4th Cause of Action for Breach of the Implied Warranty of Habitability

·         5th Cause of Action for Breach of Covenant of Quiet Enjoyment

·         6th Cause of Action for Violation of Civil Code § 1942.4

·         7th Cause of Action for Private Nuisance

·         8th Cause of Action for Public Nuisance

·         9th Cause of Action for Breach of Contract

 

Motion to Strike

·         Paragraph 2 of the Prayer for Relief, p. 22:1 [claim for punitive damages]

·         Paragraph 3 of the Prayer for Relief, p. 22:2 [claim for statutory damages]

·         Paragraph 4 of the Prayer for Relief, p. 22:4 [claim for costs of the action, including attorney fees]

·         Paragraph 40 of the Complaint, p. 8:19-25; Paragraph 58 of the Complaint, pp. 12:25-13:3; Paragraph 65 of the Complaint, pp. 14:24-15:2; Paragraph 78 of the Complaint, p.17:4-10; Paragraph 86 of the Complaint, p. 18:20-26 [allegations related to punitive damages]

·         Paragraph 94 of the Complaint, p.19:19-21 [allegations related to statutory damages and attorney’s fees and costs]

 

RULING: Demurrer is sustained with leave to amend. Motion to strike is granted.

 

SUMMARY OF ACTION

Plaintiff James McMahon (Plaintiff) alleges that he entered into a lease agreement with Defendant Grand Apartments on Lindley in November 2013. During his tenancy, he claims that he began to notice bedbugs on December 28, 2019. Plaintiff informed the property manager, and remedial measures were taken. Plaintiff alleges that no further remedial measures were taken even though he continued to receive bed bug bites throughout his tenancy.

 

Plaintiff also alleges that the Health Department performed an inspection of the unit on February 14, 2020, and provided Grand Apartments on Lindley with a notice stating that the carpet was worn and deteriorated and needed to be replaced. The flooring was replaced in May 2020. Plaintiff further alleges that he suffered bodily injury and emotional distress.

 

Plaintiff’s complaint alleges that Defendant FPI Management, Inc. (Defendant) operates and manages Grand Apartments on Lindley. Plaintiff’s complaint alleges nine causes of action against Defendant FPI and the other defendants. The causes of action include (1) battery; (2) negligence; (3) intentional infliction of emotional distress; (4) breach of implied warranty of habitability; (5) breach of covenant of quiet enjoyment; (6) violation of Civil Code Section 1942.4; (7) private nuisance; (8) public nuisance; and (9) breach of contract.

 

Defendant FPI filed its demurrer with motion to strike on November 27, 2023. Plaintiff filed his opposition on Aprill 11, 2024. Plaintiff’s opposition was filed late based on the original hearing date of January 21, 2024. However, the Court will consider Plaintiff’s opposition. Defendant filed its reply on April 30, 2024.

 

ANALYSIS

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.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

            First Cause of Action for Battery

Defendant demurs to Plaintiff’s cause of action for battery on the basis that it fails to state facts sufficient to constitute a cause of action against Defendant.

 

A battery claim requires plaintiff to prove: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching. (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

 

Defendant argues in its demurrer that Plaintiff has not satisfied the intent element of battery. Some level of intent is necessary for a battery claim. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890-891.) Plaintiff’s complaint does allege that Defendants acted with intent to harm (Comp., ¶ 36), but the conduct that Plaintiff has actually alleged, i.e., failure to eradicate and failure to notify Plaintiff (Comp., ¶ 35), would constitute failures to act and are not indicative of any intent to harm Plaintiff. Plaintiff’s allegation that Defendant acted with intent to harm appears to be a conclusory allegation and an attempt to check the box for the elements of battery, rather than an actual factual allegation.

 

Accordingly, Plaintiff has not alleged facts sufficient to maintain a cause of action for battery. Defendant’s demurrer to Plaintiff’s First Cause of Action is sustained with leave to amend.

 

            Third Cause of Action for Intentional Infliction of Emotional Distress

Defendant demurs to Plaintiff’s cause of action for IIED on the basis that it does not plead facts sufficient to constitute a cause of action.

 

The elements of a claim for intentional infliction of emotional distress are (1) defendant engaged in outrageous conduct, (2) with an intention to cause or reckless disregard for the probability of causing emotional distress, (3) severe emotional distress was suffered by plaintiff, and (4) an actual and proximate causal link between the tortious conduct and the emotional distress. (See Cochran v. Cohran (1998) 65 Cal.App.4th 488, 494; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.)

 

Outrageous conduct is that which is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) To plead a claim for intentional infliction of emotional distress, a plaintiff must allege “with great specificity” those acts which he believes is so extreme as to exceed all bounds usually tolerated in a civilized community. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) In evaluating whether the defendant’s conduct was outrageous, it is “not … enough that the defendant has acted with an intent which is tortious or even criminal, or that he intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (McMahon v. Craig (2009) 176 Cal.App.4th 222, 236.)

 

Similar to the previous cause of action, Plaintiff has failed to plead that Defendant acted with intent beyond conclusory allegations. (Comp., ¶¶ 60-61.) Furthermore, the conduct that Plaintiff has alleged, failure to act, is not so extreme that it exceeds all bounds that are usually tolerated in a civilized community. Additionally, Plaintiff lived in the apartment for six years before he experienced the issues with the bed bugs. Therefore, his allegations that Defendants failed to notify him of the bed bug infestation do not make sense.

 

Furthermore, an inadequate response from a landlord or apartment manager would not give rise to a claim for intentional infliction of emotional distress. (See McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296.)

 

Plaintiff has also failed to allege that he suffered severe emotional distress that would rise to the level contemplated by a cause of action for intentional infliction of emotional distress.

 

Accordingly, Plaintiff has not alleged facts sufficient to maintain this cause of action. Defendant’s demurrer to Plaintiff’s Third Cause of Action is sustained with leave to amend.

 

            Fourth, Fifth, and Ninth Causes of Action (Contractual Causes of Action)

Defendant demurs to Plaintiff’s causes of action for breach of the implied warranty of habitability, breach of covenant of quiet enjoyment, and breach of contract on the basis that Plaintiff has not pled the existence of a contract between him and Defendant.

 

Defendant argues in its demurrer that because Plaintiff failed to attach a copy of the lease agreement to his complaint or otherwise pled the existence of a contract between Plaintiff and Defendant FPI, then Plaintiff cannot maintain his contractual causes of action against Defendant.

 

To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the  

contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the  

defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

 

Here, Plaintiff has failed to plead the existence of a contract between Plaintiff and Defendant FPI. Plaintiff only alleges that “On or about November 2013, Mr. McMahon signed a lease at the GRAND APARTMENTS ON LINDLEY, and was provided Apartment #K168.” (Comp., ¶16.) This is not sufficient to indicate whether the contract was with Grand Apartments on Lindley or with Defendant FPI. Plaintiff must either attach a copy of the contract to the complaint or plead the legal effect       of the contract. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) Plaintiff’s complaint has not alleged facts sufficient to maintain a cause of action for breach of contract against Defendant.

 

Next, there is a common law implied warranty of habitability in residential leases in California. (Fairchild v. Park (2001) 90 Cal.App.4th 919, 924-925.) A breach of the implied warranty of habitability is a contractual cause of action. (Id.) Because Plaintiff has not alleged facts sufficient to demonstrate the existence of a contract between him and Defendant, Plaintiff cannot maintain a cause of action for breach of implied warranty of habitability.

 

Finally, each residential lease contains an implied covenant of quiet enjoyment. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896-897.) This claim must also be supported by the existence of a contract. (Id.) Plaintiff has not alleged facts to show the existence of a contract with Defendant. Plaintiff cannot maintain this cause of action, either.

 

Defendant’s demurrer to Plaintiff’s Fourth, Fifth, and Ninth Causes of Action is sustained with leave to amend.

 

            Sixth Cause of Action for Violation of Civil Code § 1942.4

Defendant demurs to Plaintiff’s Sixth Cause of Action on the basis that Plaintiff has not pled it with the requisite specificity and because the code section does not apply to Defendant because Defendant is not a landlord under the meaning of the code.

 

Civ. Code § 1942.4 states that a landlord of a dwelling may not demand rent if (1) the dwelling substantially lacks specific affirmative characteristics, (2) a public officer has notified the landlord in writing of an obligation to abate the nuisance or repair the substandard conditions, (3) the conditions have existed and not been abated 35 days beyond the date of the service of the notice from the public officer, and (4) the conditions were not caused by an act or omission of the tenant or lessee. Further, statutory causes of action must be pleaded with particularity. (Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 439 (“the general rule [is] that statutory causes of action must be pleaded with particularity[.]”)

 

Plaintiff’s complaint does not allege that a public officer had notified Defendant of an obligation to abate the nuisance. This is a necessary requirement for a claim for violation of Section 1942.4. Plaintiff has also not pled any facts indicating that the substandard condition was not remedied within 35 days of notice of a public official.

 

Defendant also argues that it does not meet the definition of landlord for Civ. Code § 1942.4. “‘Landlord’ means an owner of a residential rental property.” (Civ. Code § 1954.202.) Defendant FPI is not the owner of the property; it is the manager, as Plaintiff indicates in his complaint. (Comp., ¶ 6.)

 

Based on the foregoing, Plaintiff has not pled facts sufficient to maintain a cause of action for violation of this section. Defendant’s demurrer to Plaintiff’s Sixth Cause of Action is sustained with leave to amend.

 

            Seventh and Eighth Causes of Action for Private and Public Nuisances

Defendant demurs to these causes of action on the basis that they are based on the same facts as, and thus are duplicative of, Plaintiff’s negligence cause of action.

 

A nuisance is defined “[a]nything which is injurious to health, ... indecent or offensive to the senses, or an obstruction to the free use of property....” (Civ. Code § 3479.) Where a nuisance claim relies on the same facts as a negligence claim, the nuisance cause of action is a negligence claim and is duplicative of the actual negligence claim. (El Escorial Owner’s Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

 

Here, Plaintiff’s cause of action for private nuisance relies on the same facts as Plaintiff’s cause of action for negligence. Therefore, Plaintiff’s private nuisance claim is duplicative of Plaintiff’s negligence claim. To maintain this cause of action, Plaintiff would have to demonstrate that it is different from his negligence cause of action.

 

Plaintiff’s claim for public nuisance is similarly duplicative, and it fails to demonstrate how a substantial number of people were also affected by the condition at the same time. (See Civ. Code § 3480; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1104.) Plaintiff alleges that the bed bug “infestation affects the community at large” (Comp., ¶ 103), but Plaintiff does not elaborate on how the community at large was affected.

 

Accordingly, Defendant’s demurrer to Plaintiff’s Seventh and Eighth Causes of Action is sustained with leave to amend.

 

Motion to Strike

A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny 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.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” Under CCP § 436(b), the court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” 

 

            Punitive Damages

Defendant has moved to strike Plaintiff’s request for punitive damages as to it on the basis that Plaintiff has not sufficiently pled that Defendant acted with oppression, fraud, or malice.

 

Punitive damages are governed by Civ. Code § 3294: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294(a).)

 

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in Civ. Code § 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id. at 725.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) Fraud is defined as “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).) 

  

The “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud or malice…within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) 

 

“It is not sufficient to allege merely that defendant ‘acted with oppression, fraud or malice.’ Rather, plaintiff must allege specific facts showing that defendant’s conduct was oppressive, fraudulent or malicious (e.g., that defendant acted with the intent to inflict great bodily harm on plaintiff or to destroy plaintiff's property or reputation).” (Croskey, et al., Cal. Prac. Guide: Insurance Litigation Ch. 13-C (Thomson Reuters, 2016) ¶ 13:197.2; and see, Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [allegations that defendant’s conduct was “intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights” did not satisfy specific pleading requirements].) 

 

In this case, Plaintiff has not sufficiently alleged that Defendant acted with malice, oppression, or fraud. Instead, Plaintiff only makes conclusory allegations that Defendant acted as such. (See Comp., ¶¶ 40, 58, 65, 78, 86.) That is not sufficient to maintain a claim for punitive damages. Additionally, to maintain a claim for punitive damages against a corporation, Plaintiff would have to show that the oppression, fraud, or malice was on the part of an officer, director, or managing agent of the corporation. (Civ. Code § 3294(b).)

 

Defendant’s motion to strike is granted for Plaintiff’s claim for punitive damages and related allegations, though Plaintiff’s claim will not be stricken in its entirety as it could still apply to other defendants.

 

            Attorney Fees

Defendant has requested that Plaintiff’s request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1033.5(a)(10); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Dep’t of Forestry & Fire Protection v. Lebrock (2002) 96 Cal.App.4th 1137, 1141.)

 

Plaintiff asserts in his complaint that he can recover attorney fees pursuant to Civ. Code § 1942.4. (Comp., ¶ 94.) However, the Court sustained Defendant’s demurrer to Plaintiff’s cause of action related to this section. Unless Plaintiff can amend this cause of action and make it viable, Plaintiff cannot maintain his request for attorney fees.

 

Accordingly, Defendant’s motion to strike is granted for Plaintiff’s request for attorney fees, for Defendant FPI only.

 

            Statutory Damages

Plaintiff also asserted a right to statutory damages pursuant to Civ. Code § 1942.4. However, as discussed above, the Court sustained Defendant’s demurrer to the cause of action related to that section. Therefore, unless Plaintiff can amend that cause of action, Plaintiff cannot maintain his request for statutory damages. Defendant’s motion to strike is granted for Plaintiff’s request for statutory damages, for Defendant FPI only.

 

CONCLUSION

Defendant’s demurrer to Plaintiff’s First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action is sustained with leave to amend.

 

Defendant’s motion to strike is granted in its entirety.

 

Plaintiff is given 30 days leave to amend.

 

Moving party to give notice to all parties.