Judge: Gary Y. Tanaka, Case: 22TRCV00001, Date: 2023-01-24 Tentative Ruling

Case Number: 22TRCV00001    Hearing Date: January 24, 2023    Dept: B

PROCEEDINGS

Melinda Stansbury v. Riley Johnson, Jr., et al. 

22TRCV0001

1.      Riley Johnson, Jr., et al.’s Demurrer to First Amended Complaint

2.      Riley Johnson, Jr., et al.’s Motion to Strike Portions of First Amended Complaint  

TENTATIVE RULING

Riley Johnson, Jr., et al.’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend.

Riley Johnson, Jr., et al.’s Motion to Strike Portions of First Amended Complaint is denied, in part, granted with 20 days leave to amend, in part, and moot, in part.

Background

Plaintiff’s Complaint was filed on January 3, 2022. Plaintiff’s First Amended Complaint was filed on June 1, 2022. Plaintiff alleges the following facts. Plaintiff is a tenant at 327 E. Culver Boulevard, Playa Del Rey, California 90293. Defendants are the landlords. Toxic mold and asbestos were discovered in Plaintiff’s apartment. Plaintiff was forced to vacate her apartment for an extended period. Plaintiff alleges the following causes of action: (1) Breach of Lease; (2) Breach of Implied Warranty of Habitability; (3) Negligent Maintenance of Premises; (4) Nuisance; (5) Intentional Infliction of Emotional Distress; (6) Breach of Covenant of Quiet Enjoyment.

            Meet and Confer

            Defendants set forth meet and confer declarations in sufficient compliance with CCP § 430.41 and CCP § 435.5.  (Decls. Christina J. Newell, ¶¶ 3-4.)

            Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur to the fifth cause of action on the grounds that the cause of action fails to state facts sufficient to constitute a cause of action and that the cause of action is uncertain.

            Fifth Cause of Action for Intentional Infliction of Emotional Distress

            The demurrer to the fifth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.

            “A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.

“[I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress.” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921. “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Id.

            Here, Plaintiff has failed to set forth facts to support the elements of extreme and outrageous conduct, intent or reckless disregard, and proximate causation. Plaintiff has simply set forth conclusions. Plaintiff merely alleges that she discovered toxic mold and asbestos, and then had to evacuate the unit to reside in a different unit.  These facts are not sufficient to show that Defendant abused a position of power, or that Defendant knew that Plaintiff was susceptible to injuries through emotional distress, or that Defendants acted intentionally or unreasonably knowing that it would likely cause emotional distress.

            Therefore, the demurrer to the fifth cause of action is sustained with 20 days leave to amend.

            Motion to Strike 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  CCP § 436(a).  The court may also strike 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.  CCP § 436(b).  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP § 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP § 437.

Defendants move to strike the following:

“1. The entirety of paragraph 24. 2. The portion of paragraph 44, line 3 reading “outrageous misconduct.” 3. The portion of paragraph 44, lines 13-14 reading, “all of which have been proximately [sic] by Defendants’ extreme and outrageous conduct.” 4. The portion of paragraph 44, line 16 reading, “extreme and outrageous.” 5. The entirety of paragraph 45. 6. The portion of paragraph 46 reading, “Defendants’ conduct has been oppressive, willful, malicious, negligent and was carried out with a conscious disregard for Plaintiffs’ legal rights and safety. Defendants acted purposefully in order to vex, injure and annoy Plaintiffs for the purpose of forcing them to abandon their legal prerogative and further to punish them for seeking redress of their concerns regarding the condition of the Subject Property with housing authorities.” 7. Item 4 in the Prayer for Relief for the Third Cause of Action. 8. Item 4 in the Prayer for Relief for the Fourth Case (sic) of Action. 9. Item 4 in the Prayer for Relief for the Fifth Case (sic) of Action. 10. Item 4 in the Prayer for Relief for the Sixth Case (sic) of Action.” (Notice of Motion, page 2, lines 8-23).

As to item number 1, paragraph 24, the motion is denied. There is nothing false, improper, or irrelevant as to the language set forth in this paragraph which merely states: “At the time Defendants rented the premises and thereafter, the premises were uninhabitable and unfit for human occupation in that, among other things, there was asbestos in the premises. In January 2021 and thereafter the premises were uninhabitable and unfit for human occupation in that there was a toxic black mold infestation in the premises.” (FAC, ¶ 24).

As to item numbers 2 to 5, and 9, the motion is moot upon the sustaining of the demurrer to the fifth cause of action.

As to item number 6, the motion is denied because paragraph 46 does not contain any of the language that was set forth in the notice of motion which Defendants sought to strike.

As to item numbers 7, 8, and 10, the motion is granted with 20 days leave to amend.

Civ. Code, § 3294 states, in relevant part:

“(a) 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.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Plaintiff has set forth conclusory allegations that Defendants acted willfully, maliciously, intentionally, and/or recklessly in an attempt to support Plaintiff’s allegations and prayer for punitive damages. A Complaint’s “conclusory characterization of defendant's conduct as intentional, wilful and fraudulent is a patently insufficient statement of oppression, fraud, or malice, express or implied, within the meaning of section 3294.”  Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.

Defendants are ordered to give notice of this ruling.