Judge: Gregory Keosian, Case: 22STCV04258, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV04258    Hearing Date: January 27, 2023    Dept: 61

Defendant Property Management Associates’ Demurrer and Motion to Strike Portions of Second Amended Complaint is SUSTAINED with 30 days leave to amend the sixth and eighth causes of action, and OVERRULED as to the first through fourth and seventh causes of action.. The motion to strike is DENIED.

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.)

“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.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Property Management Associates (Defendant) demurrers to the Second Amended Complaint (SAC) on the grounds that it includes defective causes of action for wrongful death. (Demurrer at pp. 3–4.) Defendant also argues that Plaintiff Patrick Weil lacks standing to bring claims as the successor in interest to Decedent Plaintiff William Weil. (Demurrer at pp. 4–5.) Defendant also argues that the particular causes of action fail to allege required elements. (Demurrer at pp. 5–10.)

Defendant’s argument as to standing is unpersuasive. Following the death of the original Plaintiff (now Decedent) William Weil, the parties stipulated and the court granted leave on September 26, 2022  to file an SAC in which Plaintiff Patrick Weil would prosecute claims both individually and as Decedent’s successor in interest. While such leave is ordinarily sought by motion (Code Civ. Proc. § 377.31, Defendant identifies no authority for the proposition that it cannot be gotten by stipulation and order, if the conditions are met. Indeed, the SAC includes the declaration required of successors in interest under Code of Civil Procedure § 377.32, and Defendant identifies no defect in this declaration. Thus no standing defect warrants sustaining the demurrer.

Defendant’s argument as to causation and wrongful death is also unpersuasive. Defendant argues that hypoxic respiratory failure, sepsis, and pneumonia killed Decedent, as indicated on his death certificate, not any negligence of Defendant’s. (Demurrer at p. 1.) But while causation is an element of any wrongful death claim (See Musgrove v. Silver (2022) 82 Cal.App.5th 694, 705), the conduct that forms the basis for the claim need not be the only cause of death, and may be a “concurrent cause” among other “substantial factor[s].” (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1158.) Here, the SAC alleges that Decedent was confined in his home as a result of Defendant’s negligent failure to repair an elevator in his building, and as a result missed necessary medical appointments — including one for a pneumonia vaccine — that could have prevented Decedent’s death by respiratory failure. (SAC ¶ 4.) Defendant may dispute this characterization of events, but such allegations must be taken as true on demurrer.

Defendant argues that Plaintiff has stated no claim for breach of the implied warranty of habitability, because the alleged defect in the property — a broken elevator that prevented Decedent’s ingress and egress — is different from the “insect infestations, leaking pipes, mold, and dilapidated conditions” that ordinarily form the basis for habitability claims. (Demurrer at p. 6.) This argument is unpersuasive. Uninhabitable conditions are not limited to water intrusion and pest infestations in dwelling units, but encompass any “material defective condition affecting the premises’ habitability,” which includes “the tenant's apartment or the common areas which he uses.” (Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891.) Among the conditions that landlords are required to maintain in good order are “[e]lectrical lighting” and “[f]loors, stairways, and railings maintained in good repair” (Civ. Code § 1941.1, subd. (5), (9)), as well as “adequate exit facilities.” (Health & Safety Code § 17920.3, subd. (l).) These statutory requirements are like in kind to the condition that Plaintiff alleges in the SAC, and suggest that a habitability claim may be pursued based on a broken exit facility that prevents ingress and egress.

Defendant further argues that the false imprisonment and intentional infliction of emotional distress (IIED) claims fail for lack of allegations of intentional conduct or severe emotional distress. (Demurrer at pp. 6–8.) Defendant is correct that the false imprisonment claim lacks an allegation of “intent to confine, or to create a similar intrusion” against Plaintiff, which is an element of the false imprisonment tort. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.)

However, the IIED claim is sufficiently pleaded. 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 SAC alleges that Defendant “refused” to fix a broken elevator despite repeated notices that it was broken. (SAC ¶ 3.) The SAC also alleges that Defendant knew “that [Decedent] was disabled and confined to his apartment” from the breakdown in December 2021 to his removal from the apartment in February 2022. (SAC ¶¶ 69, 75.) The SAC alleges that Decedent suffered “severe emotional distress, including but not limited to suffering, anguish, fright, nervousness, anxiety, worry, shock, humiliation, and shame,” addition to the physical confinement imposed as a result of the lack of means for ingress and egress. (SAC ¶ 70.) These allegations describe outrageous conduct and severe emotion distress, in line with authority defining outrageous conduct to include circumstances when a defendant “(1) abuses a relation or position which gives [ 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.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921.) Thus the IIED claim is adequately stated.

Accordingly, the demurrer is SUSTAINED with leave to amend as to the sixth cause of action for false imprisonment, and OVERRULED as to the seventh cause of action for IIED.

Defendant also argues that Plaintiff’s first through third causes of action for violation of civil rights fail because each claim is dependent upon an underlying ADA violation for failure to accommodate, and the desired accommodation — fixing the elevator — is not a true accommodation. (Demurrer at pp. 9–10; SAC ¶¶ 16, 33.) Additionally, it argues that Plaintiff fails to plead either that the architectural accommodation desired — fixing the elevator — was “readily achievable” under 42 U.S.C. § 12182, subd. (b)(2)(A)(iv). (Demurrer at pp. 9–10.)

These arguments are unpersuasive. As to the first, Defendant presents no authority for the proposition that repairing an elevator cannot be an accommodation. It stands to reason that where a disability access feature, such as a ramp or an elevator, could be a reasonable accommodation, then keeping that same facility in good repair would constitute the same. As to the second, Defendant is incorrect in stating that each of Plaintiff’s civil rights claims depends on an underlying ADA claim. The first and third causes of action may stand under Civil Code § 54.1, subd. (b)(3)(B), which states that a landlord “shall not refuse to make reasonable accommodations in rules, policies, practices, or services, when those accommodations may be necessary to afford individuals with a disability equal opportunity to use and enjoy the premises.” The elements of the second cause of action for failure to accommodate under FEHA are that the plaintiff “(1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation.” (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1051.) All of these are alleged in the SAC. And even if the “readily achievable” requirement of the ADA were imported into these statutes, such requirement is an “initial burden” of production, which the defendant bears the ultimate burden of disproving as an affirmative defense. (Californians for Disability Rights v. Mervyn's LLC (2008) 165 Cal.App.4th 571, 592.)

Accordingly, the demurrer is OVERRULED as to the first through third causes of action.

Finally, Defendant argues that no claim for breach of oral contract is stated because Plaintiff alleges merely a failure to abide by a promise to reimburse Plaintiff for movement costs, rather than a bargained-for exchange. (Demurrer at p. 10.) Plaintiff acknowledges in opposition that the claim is ill-pleaded and seeks leave to allege a promissory estoppel claim. (Opposition at pp. 7–8.) The demurrer is therefore SUSTAINED as to the eight cause of action for breach of oral contract.

In summary, the demurrer is SUSTAINED with leave to amend the sixth and eighth causes of action, and OVERRULED as to the first through fourth and seventh causes of action.

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.)

Defendant moves to strike Plaintiff’s wrongful death allegations and prayer for punitive damages. The argument as to Plaintiff’s wrongful death allegations are the same as those made in relation to Defendant’s demurrer. (Motion at pp. 3–4.) The punitive damages argument is unique to this motion.

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 SAC alleges sufficient basis to seek an award of punitive damages. Plaintiff alleges that Decedent was elderly and disabled, meaning he could not walk up and down stairs. (FAC ¶ 1.) It also alleges that when the elevator in his building broke down, Defendant refused to repair it, leaving Decedent confined to his room for a period of several weeks. (SAC ¶ 3.) It is alleged that Defendant knew Decedent was disabled and confined to his apartment. (SAC ¶ 69.) The conduct alleged here is sufficiently despicable and malicious to state a claim for punitive damages.

The motion to strike is therefore DENIED.

Plaintiff to provide notice.