Judge: Gary I. Micon, Case: 21STCV47138, Date: 2024-11-12 Tentative Ruling


Case Number: 21STCV47138    Hearing Date: November 12, 2024    Dept: F43

Dept. F43

Date: 11-12-24

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

Trial Date: N/A

 

DEMURRER WITH MOTION TO STRIKE SECOND AMEND COMPLAINT

 

MOVING PARTY: Defendant FPI Management, Inc.

RESPONDING PARTY: Plaintiff James McMahon

 

RELIEF REQUESTED

Demurrer to the Second Amended 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 [claim for punitive damages]

·         Paragraph 3 of the Prayer for Relief [claim for statutory damages]

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

·         Paragraphs 46, 64, 72, 98, and 108 of the SAC [allegations related to punitive damages]

·         Paragraph 123 of the SAC [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 started 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 and carpeting were replaced in May 2020. Plaintiff alleges that the infestation was eradicated after the carpeting was replaced. Plaintiff further alleges that he suffered bodily injury and emotional distress.

 

Plaintiff’s Second Amended Complaint (SAC) alleges that Defendant FPI Management, Inc. (Defendant) operates and manages Grand Apartments on Lindley. Plaintiff’s SAC 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.

 

On August 15, 2024, this Court sustained Defendant’s demurrer to Plaintiff’s First and Third through Ninth Causes of Action and granted Defendant’s motion to strike. On September 10, 2024, Plaintiff filed his SAC. On October 14, 2024, Defendant filed its demurrer with motion to strike for Plaintiff’s SAC. Plaintiff opposes Defendant’s demurrer with motion to strike.

 

Defendant’s Request for Judicial Notice: Defendant has requested that the Court take judicial notice of rental agreements and lease contracts. The Court takes judicial notice of these documents, as well as the fact that Defendant FPI was not a party to the contract and is only the owner’s agent. Judicial notice may be taken of facts 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(h); Scott v. J.P. Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 753.)

 

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 to the SAC that Plaintiff has once again 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 SAC does allege that Defendants acted with intent to harm (SAC, ¶ 42), but the conduct that Plaintiff has actually alleged, i.e., failure to eradicate and failure to notify Plaintiff (SAC, ¶ 41), would constitute failures to act and are not indicative of any intent to harm Plaintiff. As with the previous version of Plaintiff’s complaint, 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. Furthermore, Plaintiff has also alleged that after the carpeting in the unit was eventually replaced, the bedbug infestation was eradicated. (SAC, ¶ 19.)

 

Plaintiff’s opposition, for reasons that are unclear, makes several arguments related to bed bugs in a hotel room and the duties of a hotel. This is not a hotel room case. It involves an apartment that he had been renting for several years before the bed bugs appeared. Plaintiff also cites an inapplicable Illinois hotel bed bug case in his opposition.

 

Defendant points out in its demurrer that Plaintiff has added the allegations that Defendant was aware of the bed bugs but rented the apartment to Plaintiff anyways (See SAC, ¶ 40), but these allegations make little sense, considering that Plaintiff has alleged that he began renting the apartment in November 2013 (SAC, ¶ 16) and the bed bugs did not appear until December 2019 (SAC, ¶ 17).

 

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.)

 

Like the previous cause of action, Plaintiff has again failed to plead that Defendant acted with intent beyond conclusory allegations. (SAC, ¶¶ 66-68.) 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. Plaintiff also does not allege any specific conduct attributable to FPI; instead, Plaintiff uses the blanket word “Defendants” for all the Defendants named in the case under this cause of action.

 

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 does allege that management arranged for a heat treatment and two follow up spray treatments, as well as sending a canine to detect bedbugs. (SAC, ¶ 18.) Plaintiff also alleges that after the carpeting in the unit was eventually replaced, the bedbug infestation was eradicated. (SAC, ¶ 19.) It appears then that management did take steps to attempt to alleviate the infestation, so Plaintiff’s allegations regarding intentional infliction of emotional distress are still inadequate.

 

Plaintiff’s opposition fails to point to any allegations in the SAC which would constitute extreme and outrageous conduct, and he has also failed to allege what constituted his severe emotional distress. As with the previous cause of action, Plaintiff’s allegation that they rented a unit to him that they knew was infested with bed bugs contradicts his allegation that he had lived there six years before the bed bugs appeared.

 

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.

 

As with its previous demurrer, Defendant argues in this demurrer that because Plaintiff failed to attach a copy of the lease agreement to his SAC 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 again only alleges that “On or about November 2013, Plaintiff McMahon signed a lease at the GRAND APARTMENTS ON LINDLEY, and was provided Apartment #K168.” (SAC, ¶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.) Additionally, the Court took judicial notice of lease agreements submitted by Defendant that show that Defendant is not a party to the lease agreement and is only the owner’s agent.

 

Plaintiff’s opposition fails to point to any allegations in his SAC that would indicate a contractual relationship between him and Defendant FPI.

 

Plaintiff’s SAC 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[.]”)

 

As the Court found previously, Plaintiff’s SAC 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.

 

Plaintiff does allege that the Los Angeles Health Department inspected the unit and provided the Grand Apartments on Lindley with a notice stating that the carpet was torn and deteriorating on February 14, 2020, and the flooring was not changed until May 18, 2020. (SAC, ¶ 19.) However, it was not Defendant FPI that Plaintiff alleges received the notice or failed to abate the conditions within 35 days, nor does Plaintiff allege that the notice had to do with the bed bugs, though the inference could arguably be drawn that they were related.

 

Additionally, Defendant is not the landlord of the property because it is the property manager, so Civ. Code § 1942.4 would not apply to it. Plaintiff’s opposition does not challenge Defendant’s contention that it is not a landlord.

 

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 barely added any allegations to his SAC after the Court sustained Defendant’s demurrer on the basis that 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 still 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” (SAC, ¶ 135), but Plaintiff only lists hypothetical ways that it could affect others, not that it has affected others.

 

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.” 

 

For reasons that are unclear, throughout Plaintiff’s opposition, he refers to a hotel, hotel guests and employees, bed bugs in the hotel, and housekeeping. There is no hotel in this case.

 

            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 SAC, ¶¶ 46, 64, 72, 98, and 108.) 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).) Plaintiff has not done so.

 

Defendant’s motion to strike is granted for Plaintiff’s claim for punitive damages and related allegations, though only for Defendant FPI, 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(b)(2). (SAC, ¶ 123.) 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(b)(1). 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.