Judge: Gregory Keosian, Case: 22STCV32443, Date: 2023-05-01 Tentative Ruling
Case Number: 22STCV32443 Hearing Date: May 1, 2023 Dept: 61
Defendants
Mark A. Reed and Sureca, LLC’s Demurrer and Motion to Strike Portions of the
First Amended Complaint are OVERRULED and DENIED. Defendants to answer within
30 days.
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 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.)
A. MARK REED’S LIABILITY
Defendants Mark. A. Reed and Sureca LLC (Defendants)
demurrer to the First Amended Complaint (FAC) on several points. First among
these is the argument that the FAC pleads that Defendant Sureca is the owner of
the property, and contains no allegations establishing that Reed is the alter
ego or agent of Sureca. (Demurrer at pp. 9–11.)
This argument is unpersuasive. It is true that the FAC
includes a conclusory alter-ego allegation, without the requisite elements of
unity of interest and unjust result. (FAC ¶ 8; see Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221
[describing alter ego elements].) However, this argument neglects two things:
that conduct is alleged against Reed personally, during his tenure of ownership
of the premises, and further that Reed may be liable as an officer or owner of
the company for acts which he personally directed.
Specifically,
the FAC alleges that Reed only transferred his ownership interest in the
property to Sureca in July 2021. However, Plaintiffs allege habitability claims
against both Reed and Sureca dating from 2019 through the present, i.e. during
Reed’s term of ownership. (FAC ¶ 16.) Additionally, corporate officers may be
liable in tort for the conduct in which they personally participate or direct.
(Michaelis v.
Benavides
(1998) 61 Cal.App.4th 681, 685.) Here, it is alleged that Sureca is Reed’s LLC,
that he transferred the property to it without consideration, and continued to
manage the property day-to-day after the transfer. (FAC ¶ 14.) Thus the FAC
alleges Reed’s participation in and direction of the wrongful eviction
committed upon Plaintiffs in October 2021.
B.
UNCERTAINTY
Defendants broadly argue that
each of Plaintiffs’ claims (save the claim for intentional infliction of
emotional distress) fails because the FAC contains only broad, uncertain
allegations relating to the existence of a contract, Plaintiff’s performance
thereon, or the duration of their absence prior to their finding that the locks
had been changed.(Demurrer at pp. 12–15, 16–17.)
“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.)
Defendants’
characterization of these allegations are inaccurate. Pleading a contract claim
does not necessarily require pleading a contract verbatim, as contracts may
also be pleaded by legal effect, as Plaintiffs do here. (See Miles v. Deutsche Bank National Trust Co. (2015) 236
Cal.App.4th 394, 401–02.) What’s more, Plaintiffs here allege no claims based
on the express terms of any contract, but rather base their claims upon the
implied warranties and guarantees that are inherent in the landlord-tenant
relationship. (FAC ¶¶ 26–36.) It is further alleged that Plaintiffs performed
all obligations under the contract unless excused (FAC ¶ 31), and further that
at the time of their lockout, they were paying $1,604.89 monthly under the
lease. (FAC ¶ 12.) If Defendants have evidence that rebuts these allegations, a
demurrer is not the procedural vehicle in which to introduce it. Nor may
Defendants ask the court to disregard well-pleaded allegations on the mere
intimation that contrary evidence may exist.
The demurrer is
therefore OVERRULED as to the first through fifth and seventh and eighth causes
of action.
C.
INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
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, there are several wrongful
acts alleged. First, that Defendants permitted the property to be infested by
insects and fleas, despite Plaintiffs’ complaints. (FAC ¶ 16.) Second, that
Defendants evicted the Plaintiffs without notice and by wrongful self-help
lockout measures, despite their “numerous pleas” for re-entry. (FAC ¶¶ 50, 58.)
And thirdly, Defendants have not permitted Plaintiffs to return to the property
to reclaim their personal items. (SAC ¶¶ 53–56.) Added to these actions are
aggravating factors: Plaintiffs are elderly — aged 79 and 74 when the eviction
occurred (FAC ¶ 23) — and low income, reliant upon the property’s operation
under Los Angeles’s Rent Stabilization Ordinance. (SAC ¶¶ 15, 59.) Based on these allegations,
consistent 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
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.)
Defendants here move to strike
the FAC’s prayer for punitive damages, on the grounds that Plaintiffs have not
pleaded underlying facts sufficient to entitle them to same. (Motion at pp.
6–7.)
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”).)
Defendants’ argument as to the prayer for
punitive damages fails for much the same reasons that their arguments on
demurrer fail. Various contentions concerning Plaintiffs’ abandonment of the
lease or failure to pay rent owed are not disclosed by the FAC or judicially
noticeable materials, and are more properly raised in an answer. Additionally,
the wrongdoing alleged on the part of Defendants, in addition with the alleged
facts that exacerbate Plaintiffs’ vulnerability to that misconduct, provide a
basis for seeking punitive damages for much the same reason that they support
Plaintiffs’ claim for intentional infliction of emotional distress.
Accordingly, the motion to strike is DENIED.