Judge: H. Jay Ford, III, Case: 22SMCV00081, Date: 2022-09-20 Tentative Ruling

Case Number: 22SMCV00081    Hearing Date: September 20, 2022    Dept: O

  Case Name:  Price v. Saleh, et al.

SUBJECT:                (1)  DEMURRER TO COMPLAINT

                                    (2)  MOTION TO STRIKE

MOVING PARTY:   (1) and (2) Defendants Nasser Abed Saleh and Ahmad Saleh

RESP. PARTY:         (1) and (2) Plaintiff Kim Price

TENTATIVE RULING

            Defendants Nasser Abed Saleh and Ahmad Saleh’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 5^th cause of action for private nuisance, SUSTAINED WITH 10 DAYS LEAVE TO AMEND as to the 9^th cause of action for violations of Rent Escrow Account Program (Chapter XVI) and OVERRULED as to the 8^th cause of action for Intentional Infliction of Emotional Distress (IIED). 

            Defendants’ Motion to Strike is DENIED as to the punitive damages claim and GRANTED as to the treble damages claim.

I.  5^th cause of action for private nuisance—SUSTAIN WITHOUT LEAVE TO AMEND

            “Given ‘the broad definition of nuisance,’ the independent viability of a nuisance cause of action ‘depends on the facts of each case.”  El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.  “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”  Id. at 1349;  Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.  Demurrer is properly sustained to a nuisance cause of action if it is “merely a clone of the first cause of action using a different label.”  El Escorial Owners’ Assn., supra, 154 Cal.App.4^th at 1349. 

            Plaintiff 5^th cause of action for nuisance is indistinguishable from her 4^th cause of action for negligence.  The 5^th cause of action for nuisance incorporates all factual allegations by reference and pleads the statutory language of CC §3479.  There are no additional facts specific to the nuisance cause of action, such as intentional maintenance of the nuisance.  The requested relief in the nuisance cause of action is also identical to the negligence cause of action.  There is no claim for injunctive relief. 

            The nuisance claim is a mere clone of the negligence cause of action.  Demurrer to the 5^th cause of action for nuisance is SUSTAINED WITHOUT LEAVE TO AMEND. 

II.  8^th cause of action for IIED—OVERRULE

            To state an IIED claim, the plaintiff must allege facts showing: (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's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  See Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (plaintiff alleged outrageous conduct based on three racially offensive statements made by defendant’s employee before 50 of plaintiff’s coworkers and 3 of his supervisors); Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct).

            Whether conduct is outrageous is usually a question of fact but can be determined as an issue of law.  See Smith, supra, 64 Cal.App.5th at 147.  “Mere insulting language, without more, ordinarily would not constitute extreme outrage unless it is combined with aggravated circumstances.  But 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. at 147.

            Plaintiff alleges Defendants failed to remediate habitability problems for years despite having notice of those defects from Plaintiff and the Los Angeles .  Plaintiff alleges “habitability problems at the subject property, including: structural hazards, broken windows, cracked stucco and paint, and illegal construction.”  See FAC, ¶19.  Plaintiff alleges the LAHC placed the property in the REAP program due to violations relating to fire safety, maintenance, illegal construction, plumbing, heating and ventilation.  See FAC, ¶¶21-23.  Reasonable minds could find that Defendants’ intentional, knowing and willful refusal to repair these habitability issues was extreme and outrageous.  Defendants were Plaintiffs’ landlords, which placed them in a position to damage Plaintiffs’ interests.  See e.g. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921-922 (tenant stated cause of action for IIED against landlord for landlord’s “knowing, intentional, and willful” failure to correct defective conditions of the premises). 

Demurrer to the 8^th cause of action for IIED is OVERRULED. 

III.  9^th cause of action for violations of Rent Escrow Account Program (Chapter XVI)—SUSTAIN W/10 DAYS LEAVE TO AMEND

            Plaintiff fails to allege the specific section of Los Angeles Municipal Code Chapter XVI, Article 2 that Defendants violated.  Statutory causes of action must be specifically pleaded and every element of the statutory basis for liability must be alleged.  See Zipperer v County of Santa Clara (2005) 133 Cal.App.4^th 1013, 1020.  Demurrer to the 9^th cause of action for violations of the Rent Escrow Account Program is SUSTAINED W/10 DAYS TO LEAVE TO AMEND. 

IV.  Motion to Strike—DENY

            Plaintiff alleges that Defendants failed to repair defects affecting habitability of the residential premises for years, despite Plaintiff’s repeated complaints and the LA Housing and Community’s notices.  Plaintiff alleges the LAHC placed the property in the REAP program due to violations relating to fire safety, maintenance, illegal construction, plumbing, heating and ventilation.  See FAC, ¶¶21-23.  Plaintiff states a claim for IIED.  Plaintiff alleges malice based on despicable conduct undertaken in conscious disregard of the rights or safety of others. 

            However, Plaintiff fails to allege any basis for treble damages.  Plaintiff also fails to cite to any authority in her opposition for treble damages.