Judge: H. Jay Ford, III, Case: 22STCV20129, Date: 2023-03-14 Tentative Ruling

Case Number: 22STCV20129    Hearing Date: March 14, 2023    Dept: O

  Case Name:  Bitidis v. Nowog, et al.

SUBJECT:                 DEMURRER TO FAC

MOVING PARTY:   Defendants Sal Nowog and Andrea Stone  

RESP. PARTY:         Plaintiff Denise Bitidis

TENTATIVE RULING

            Defendants Sal Nowog and Andrea Stone’s Demurrer to the First Amended Complaint (FAC) is SUSTAINED WITH 10 DAYS LEAVE TO AMEND as to Stone and OVERRULED as to Nowog on the 2^nd cause of action for negligence; SUSTAINED WITHOUT LEAVE TO AMEND on the 3^rd cause of action for Negligent Infliction of Emotional Distress (NIED) and OVERRULED on the 4^th cause of action for Intentional Infliction of Emotional Distress (IIED).   

            Defendants do not demur to the 1^st cause of action for premises liability alleged against Defendant Nowog only. 

II.  Demurrer to 2^nd cause of action for negligence—SUSTAIN WITH 10 DAYS LEAVE TO AMEND as to Stone and OVERRULE as to Nowog.

            Defendants demurrer to the 2^nd cause of action for negligence is SUSTAINED with 10 days leave to amend as to Stone and OVERRULED as to Nowog.  Plaintiff’s 2^nd cause of action for negligence alleges Defendants negligent inspection, maintenance and/or control of 308-314 N. Almont, Beverly Hills, CA 90211.  Plaintiff alleges that Nowog is the owner of the property, which would impose a duty of care on him.  However, Plaintiff fails to allege any basis to impose the same duty of care on Stone in the 2^nd cause of action.  See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133 (“private landowners have a duty to maintain their premises in a reasonably safe condition, and that in the case of a landlord, the general duty of maintenance includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures”)

Plaintiff’s subsequent allegations regarding Stone in the 3^rd and 4^th causes of action for NIED and IIED also do not support imposition of a duty of care.  Plaintiff alleges in the NIED and IIED claim that Stone also resides at the property, that her relationship to Nowog is unknown but she has acted as manager of the premises “at different times,” and Nowog and Stone acted in concert with reference to the acts constituting NIED and IIED, e.g. tenant harassment, self-help lock out.  See FAC, 7:12-16. 

None of these allegations would impose a general duty of care in maintenance of the property on Stone.  While property managers are subject to a duty of care to eliminate dangerous conditions on its property (Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4^th 1651, 1656), Plaintiff has not clearly alleged that Stone was the property manager when she slipped and fell on July 25, 2020.  In opposition, Plaintiff also denies that she is alleging Stone was an agent of Nowog.  There is therefore no basis alleged to impose a duty of care and maintenance on Stone and/or the basis for imposition of such a duty is uncertain. 

III.  3^rd cause of action for Negligent Infliction of Emotional Distress—SUSTAIN WITHOUT LEAVE TO AMEND

            NIED is not a separate tort, but the tort of negligence and duty is an essential element.  Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4^th 965, 985.  The elements of NIED are (1) that defendant was negligent; (2) plaintiff suffered serious emotional distress; and (3) that defendant’s negligent was a substantial factor in causing plaintiff’s serious emotional distress.  CACI 1620.  The tort allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed.  See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928; see also CACI 1620, Directions for Use, para. 1. 

            Plaintiff’s NIED claim includes allegations regarding her slip-and-fall at the property on 7-25-20. See FAC, 7:1-10.  Plaintiff alleges in the NIED claim that she suffered physical injury as a result of the slip-and-fall, which was caused by Defendants’ negligence and made her particularly susceptible to the emotional distress inflicted by Defendants.  Id.

            Plaintiff’s NIED claim also includes allegations that Defendants demanded rent from her when she was legally excused from the obligation under the Beverly Hills Rent Moratorium Act.  See FAC, 7:15-24.  Plaintiff alleges Defendants engaged in multiple acts of harassment and retaliation, including threatening her, denying her use of the laundry room or common area walkways in retaliation for claiming a rental exemption under the COVID moratorium and seeking to file an insurance claim based on her injury, demanding that she pay additional rent or clear out her storage units, clearing out her storage units through self-help and dumping her belongings in front of her apartment.  Id. 

            As discussed in connection with the 2^nd cause of action, Plaintiff fails to state a claim for negligence against Defendant Stone in connection with Plaintiff’s slip-and-fall accident.  Thus, to the extent the NIED claim is based on the slip-and-fall accident, Plaintiff fails to state a claim for NIED against Stone. Plaintiff fails to allege any basis to impose a duty of care on Stone for maintenance of the property. 

            More fundamentally, any attempt by Plaintiff to state a claim for NIED based on the slip-and-fall is subject to demurrer without leave to amend.  NIED is only appropriate where a plaintiff does not suffer any physical injury due to the defendant’s negligence. Plaintiff alleges she suffered physical injury due to Defendant Nowog’s failure to use due care in maintaining the property.  To the extent the NIED claim is based on Plaintiff’s slip and fall, it is therefore duplicative of the 1st and 2^nd causes of action for premises liability and negligence. 

            Plaintiff’s NIED claim based on the other acts alleged against Stone and Nowog fails, because those acts are not negligent acts or breaches of the duty to use due care.  Plaintiff’s allegations of harassment, retaliation, self-help eviction of Plaintiff from the storage units and improper disposal of her property in front of her unit are intentional acts. 

            The burden is on Plaintiff to establish that the defects in her NIED claim are reasonably capable of cure with leave to amend. See Hendy v. Losse (1991) 54 Cal.3d 723, 742.  Plaintiff fails to do so. Defendants’ Demurrer to the 3^rd cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

IV.  4^th cause of action for intentional infliction of emotional distress—OVERRULE

            Defendants argue Stone cannot be held liable for IIED as Nowog’s agent, because agency is not clearly alleged, nor are there facts that would impose contractual liability on her for acts within the scope of her agency.  Defendants misunderstand the nature of Plaintiff’s IIED claim. Plaintiff is alleging that Stone personally committed the acts that for the basis of the IIED claim.  Plaintiff need not rely on Stone’s status as an agent to hold Stone liable for her own intentional tortious acts. 

            Defendants also argue no extreme and outrageous conduct is alleged.  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 engaged in multiple acts of harassment and retaliation, including threatening her, denying her use of the laundry room or common area walkways in retaliation for claiming a rental exemption under the COVID moratorium and seeking to file an insurance claim based on her injury, demanding that she pay additional rent or clear out her storage units, clearing out her storage units through self-help and dumping her belongings in front of her apartment.  See FAC, 13:19-27-14:1-27. 

            Plaintiff alleges Defendant Nowog is her landlord, Stone is his sometime property manager and they both acted in concert to engage in the alleged conduct.  See FAC, 12:10-17.  Nowog and Stone occupy positions that give them power to damage Plaintiff’s interests as a tenant. 

            Plaintiff also alleges that Defendants knew that she was especially susceptible to emotional distress from the harassment, because she was physically injured from her slip-and-fall.  See FAC, 13:1-10.  Plaintiff alleges Defendants acted intentionally with the knowledge that their actions would result in emotional distress. Id. at 13:25-27-14:1-2. 

            Plaintiff specifically alleges she suffered emotional distress as a result of this conduct.  Plaintiff alleges anxiety, fear, migraine headaches, muscle spasms, hives, elevated heart rate, insomnia and stomach issues. See FAC, 14:24-27-15:1-2. 

            Plaintiff sufficiently alleges the elements of an IIED cause of action. The Court cannot find that the alleged conduct is not extreme and outrageous as a matter of law.  The alleged conduct is not merely insulting language and the parties’ relationship is one that placed Defendants in a position to damage Plaintiff’s interests in her home.  Defendants’ Demurrer to the 4^th cause of action for IIED is OVERRULED.