Judge: Gregory Keosian, Case: 18STUD09889, Date: 2022-10-27 Tentative Ruling

Case Number: 18STUD09889    Hearing Date: October 27, 2022    Dept: 61

Defendant FML Management Corp.’s Demurrer and Motion to Strike Portions of the Second Amended Cross-Complaint is SUSTAINED with 30 days leave to amend as to the third, eleventh, and thirteenth causes of action, and GRANTED with leave to amend as to the prayer for punitive damages. The demurrer is otherwise OVERRULED.

Defendant to give notice.

I.                DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

Plaintiff FML Management Group (Plaintiff) demurrers to the claims alleged in Defendants Juan Hernandez and Sonia Gomez’s (Defendants) Second Amended Cross-Complaint (SAXC).

A.    UNCERTAINTY

Plaintiff first argues that each cause of action fails for uncertainty. This argument is unpersuasive. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.) Here, the SAXC provides notice to Plaintiff of the factual bases for Defendants’ claims, including the nature of the habitability defects at issue and other forms of alleged misconduct that Defendants engaged in. The SAXC is not so incomprehensible that Plaintiff cannot reasonably respond.

B.    BREACH OF CONTRACT

Plaintiff’s argument as to the third cause of action for breach of contract is more persuasive. Plaintiff here argues that the contract at issue is not the lease agreement signed by Defendants, but rather the agreement between Plaintiff and the owner of the property. (Demurrer at p. 4; SAXC ¶¶ 41–53.) Defendants are thus not parties to the contract at issue, and have not pleaded entitlement to enforce this contract as third party beneficiaries. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 957 [“[A] person seeking to enforce a contract as a third party beneficiary must plead a contract which was made expressly for his [or her] benefit and one in which it clearly appears that he [or she] was a beneficiary.”], internal quotation marks omitted.) The demurrer is therefore properly SUSTAINED as to the third cause of action for breach of contract.

C.    NUISANCE

Plaintiff next argues that the fifth cause of action for nuisance must be dismissed because it is duplicative of Defendants’ claim for negligence. (Demurrer at pp. 4–6.) Plaintiff relies on authority stating: “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) However, this authority does not stand for the proposition that the assertion of twin negligence and nuisance claims renders one or the other subject to demurrer, but rather that “[t]he nuisance claim “stands or falls with the determination of the negligence cause of action” in such cases.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.) Thus while both legal theories are connected, they may be pleaded together, consistent with the ordinary rule that a party may plead “alternative and inconsistent legal theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.)

However, Plaintiff is correct as to the sixth cause of action for malicious nuisance. This claim, though nominally stated as an independent cause of action, serves entirely to include a claim for exemplary damages, which is a form of relief, rather than a theory of liability. (SAXC ¶¶ 67–71.) Accordingly the demurrer is sustained as to the sixth cause of action for malicious nuisance.

D.    UNFAIR COMPETITION LAW (UCL)

Plaintiff’s argument against Plaintiff’s claim under California’s Unfair Competition Law (UCL) is unpersuasive. Plaintiff contends that a party no longer in possession of the premises cannot bring a claim under the UCL, citing Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928. (Demurrer at p. 6.) This authority, however, does not stand for Plaintiff’s position. It rather states that a tenant plaintiff no longer in possession of the premises cannot seek injunctive relief on his own behalf without asserting claims on behalf of the general public. (Id. at p. 928 [“Appellant is not now in possession of any of the properties owned or managed by the defendants; therefore, she has no need of or standing to seek an injunction on her own behalf. Furthermore, appellant has failed to allege that she is suing on behalf of the general public.”].) This argument therefore furnishes no basis to sustain the demurrer.

E.    NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Plaintiff argues that Defendant’s eleventh and thirteenth causes of action for negligent infliction of emotional distress are duplicative of one another do not state an independent claim beyond the tort of negligence. (Demurrer at pp. 6–7.)

Plaintiff is correct concerning the identity of these claims. Although framed in different language, the gravamen and legal theory of each is the same: that by their negligent property management activities, Plaintiff caused emotional distress and other damages to Defendants. (SAXC ¶¶ 109–113, 121–124.) A cause of action may be dismissed if it “adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) The demurrer is therefore properly SUSTAINED as to the 13^th cause of action for negligent infliction of emotional distress as duplicative of the 11^th claims under the same theory.

Defendant is also correct that the 11^th cause of action should be dismissed. Negligent infliction of emotional distress is “not an independent tort, but the tort of negligence, involving the usual duty and causation issues.” (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 477.) The 11^th cause of action is therefore duplicative of the tenth, which states a straightforward claim for negligence, including an invocation of damages for emotional distress. (SAXC ¶ 108.)

The demurrer is therefore SUSTAINED as to the 11^th and 13^th causes of action for negligent infliction of emotional distress.

F.    INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Plaintiff argues that Defendants have not pleaded a cause of action for intentional infliction of emotional distress (IIED) because there are no allegations of outrageous conduct. (Demurrer at p. 8.)

The elements of an IIED claim are: (1) extreme and outrageous conduct by defendant; (2) made with intent to cause, or with reckless disregard of the probability of causing, emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Bogard v. Employers Casualty Company (1985) 164 Cal.App.3d 602, 616.) The level of distress required to state a claim for IIED is distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

Here, the court cannot conclude as a matter of law that the conduct alleged is not outrageous. The SAXC states that Plaintiff failed to remediate a variety of habitability conditions on the property despite having actual knowledge of the dangerous conditions. (SAXC ¶¶ 14–29, 120.) It is further alleged, in addition to this conduct, that Plaintiff engaged in harassing and retaliatory conduct against Defendants by their excessive and unreasonable entries into their property. (SAXC ¶ 100.) As with the habitability allegations in Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922, whether these facts constitute outrageous conduct “presents a factual question it cannot be said as a matter of law that appellant has not stated a cause of action.”

The demurrer is therefore SUSTAINED as to the third, eleventh, and thirteenth causes of action, with leave to amend, and otherwise OVERRULED.

II.             MOTION TO STRIKE

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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Plaintiff here moves to strike Defendants’ prayer for punitive damages on the grounds that facts supporting the existence of malice, oppression, or fraud, have not been pleaded, and that no corporate direction or ratification has been alleged. (Motion at pp. 2–6.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

“Malice” means conduct which is 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.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The SAXC alleges adequate basis for finding the existence of malice or oppression. As discussed in relation to Defendants’ cause of action for outrageous conduct, the SAXC contains allegations of failure to redress a variety of habitability issues, together with retaliatory and harassing conduct directed toward Defendants. These factual pleadings are coupled with allegations of conscious disregard for Defendants’ rights. “[E]ven though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.)

However, Plaintiff is correct that the SAXC contains no allegations of corporate ratification. Civil Code § 3294 states:

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.

(Civ. Code § 3294, subd. (b).) The SAXC contains no allegations of direction or ratification of an officer, director, or managing agent employed by Plaintiff.

The motion is therefore GRANTED with leave to amend as to the prayer for punitive damages.