Judge: Gregory Keosian, Case: 23STCV18561, Date: 2023-11-21 Tentative Ruling

Case Number: 23STCV18561    Hearing Date: November 21, 2023    Dept: 61

Defendant FPI Management, Inc.’s Demurrer and Motion to Strike Portions of the Complaint is SUSTAINED with leave to amend as to the tenth cause of action for violation of the Los Angeles Tenant Anti-Harassment Ordinance, SUSTAINED without leave as to the eight cause of action for negligence per se, and GRANTED with leave to amend as to the prayer for civil penalties under the Ordinance, and are otherwise OVERRULED and DENIED.

Plaintiff 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) 39 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 FPI Management LLC (Defendant) demurrers to the Complaint on several grounds. Defendant argues that the first, second, fourth, sixth, and eleventh causes of action — respectively for violation of Civil Code § 1942.4, breach of the warranty of habitability, unfair competition, breach of the covenant of quiet enjoyment, and false advertising — are not pleaded with sufficient factual specificity, because Plaintiff Rodney Hawkins, Jr. (Plaintiff) alleges that he was a tenant on the premises pursuant to a written lease with “Defendants,” without specifying which of the various defendants the lease was formed with. (Demurrer at pp. 2–7.) Defendant also argues that the third cause of action for nuisance, as well as the eighth cause of action for negligence per se, are duplicative of the fifth cause of action for negligence. (Demurrer at pp. 4–5, 8.) Defendant also argues that the seventh cause of action for intentional infliction of emotional distress fails to allege the elements of the claim. (Demurrer at pp. 7–8.) Defendant also argues that the CLRA claim is ill-pleaded, as Plaintiff alleges no transaction involving the sale of goods. (Demurrer at pp. 8–9.) Finally, Defendant argues that Plaintiff’s claim under Los Angeles Municipal Code § 45.33 fails, as it does not allege that Plaintiff gave prior written notice of the violations alleged before commencing the action. (Demurrer at p. 9.)

Defendant’s argument as to the tenth cause of action under the Los Angeles Municipal Code is persuasive. Under LAMC § 45.35, “[a] civil proceeding . . . initiated under this article alleging any violation of Section 45.33  may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.” (LAMC § 45.35, subd. F.) The Complaint here does not allege that Plaintiff gave the Defendant written notice under this statute. Plaintiff in opposition argues that the Complaint itself constitutes written notice (Opposition at p. 9), but this cannot be so, since the written notice must be provided before a civil proceeding may be commenced.

The demurrer is therefore SUSTAINED with leave to amend as to the tenth cause of action.

Defendant’s arguments as to the duplicative nature of the negligence per se claim is likewise persuasive. “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.”  (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353.) This claim is properly construed as an aspect of Plaintiff’s negligence cause of action, and the demurrer to the claim is properly SUSTAINED without leave to amend.

However, the demurrer is not proper as to the nuisance claim. “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.) The demurrer is therefore OVERRULED as to the third cause of action for nuisance.

Defendant’s arguments as to the first, second, fourth, sixth, and eleventh causes of action are also unpersuasive. These arguments rest upon the fact that Plaintiff has pleaded facts against multiple defendants collectively, alleging that each is the landlord of the premises at issue with which Plaintiff has a written lease. (Complaint ¶ 103.) This collective pleading, however, has not prevented Defendant from understanding or responding to the Complaint, as Defendant acknowledges that “each business entity [defendant] either owned or managed the property at different times.” (Demurrer at p. 6.) “[L]ess particularity [in pleading] is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues *550 sufficient to enable preparation of a defense.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549–550.) Plaintiff here need not allege the precise timeline of ownership and management of the property where the Complaint apprises the Defendants of the basis for liability against them. The demurrer is therefore OVERRULED as to the first, second, fourth, sixth, and eleventh causes of action.

Defendant also demurrers to the seventh cause of action for intentional infliction of emotional distress (or IIED). 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.)

The IIED claim here is adequately stated. It is alleged that Defendants, including FPI Management, deliberately failed to redress severe habitability issues with the premises despite actual and repeated notice from Plaintiff and government entities of the unsuitability of the property. These defects included a toilet that was broken for three months, a water supply that is either scalding hot (or cold, or dirty) for days at a time, an extensive and ongoing cockroach infestation, a visible and ongoing contamination of toxic mold, constant electrical outages that can last for days, deficient and drafty weatherproofing, warped floors, an overflowing trash chute, unusable laundry facilities and elevators, and broken heating and air conditioning, which he has informed Defendants exacerbates his asthma. (Complaint ¶¶ 61–72.) It is alleged that when Defendants provided Plaintiff with a virtual tour of the premises, they showed him a different apartment in a different building, in order to induce Plaintiff to sign a lease on a lower quality unit. (Complaint ¶ 74.) Defendants are alleged to have ignored Plaintiff’s complaints with the intention of having him vacate the apartment. (Complaint ¶ 52.) And although Defendant argues that Plaintiff alleges only “severe emotional distress” in conclusory fashion, this ignores other allegations in the Complaint, which state that Plaintiff has suffered “prolonged, overpowering fearfulness, sadness, anxiety, depression, hopelessness, despair, and other related emotions,” including “constant fear that their health would take a turn for the worse.” (Complaint ¶ 147.)  Allegations of similar magnitude have been upheld in the habitability context. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922 [holding that whether these facts constitute outrageous conduct “presents a factual question” and “it cannot be said as a matter of law that appellant has not stated a cause of action”].)

The demurrer is therefore OVERRULED as to the seventh cause of action.

Defendant also argues that the ninth cause of action for violation of the Consumer Legal Remedies Act (CLRA) fails because Plaintiff fails to allege any transaction related to a “good.” (Demurrer at pp. 8–9.) Defendant neglects, however, that the CLRA also applies to services. “The CLRA declares unlawful a variety of “unfair methods of competition and unfair or deceptive acts or practices” used in the sale or lease of goods or services to a consumer.” (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1556.) The Act defines “goods” to mean the following:

tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not they are severable from the real property.

(Civ. Code § 1761, subd. (a).) Services, meanwhile are defined as “work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.” (Civ. Code § 1761, subd. (b).)

Here, while the lease of residential property is not a good and only construed with difficulty as a “service,” Plaintiff alleges that Defendant has undertaken to provide numerous services included to the lease — such as laundry, gym, and security services — and failed to provide them. (FAC ¶ 167.)

In summary, the demurrer is SUSTAINED with leave to amend as to the eighth and tenth causes of action for negligence per se and violation of the Los Angeles Tenant Anti-Harassment Ordinance, 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.)

Defendant moves to strike Plaintiff’s prayer for punitive damages, attorney fees, special damages under Civil Code § 1942.4, civil penalties under LAMC § 45.35, and restitution under Business & Professions Code § 17200. (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”).)

Defendant’s arguments with respect to the sufficiency of the allegations of punitive damages are unpersuasive, as the same allegations that support Plaintiff’s claim for intentional infliction of emotional distress also support Plaintiff’s allegations of oppressive, malicious, and fraudulent conduct. Moreover, Defendant’s arguments as to restitution under the UCL and special damages and attorney fees under Civil Code § 1942.4 are predicated upon the dismissal of these claims by its demurrer, when the demurrer to these claims has been overruled.

However, the motion may be granted as to the prayer for civil penalties under LAMC § 45.35, as the demurrer has been sustained as to this claim.

The motion is therefore GRANTED with leave to amend as to the prayer for civil penalties under LAMC § 45.35, and is otherwise DENIED.